17th Amendment to the U.S. ConstitutionThe Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution">17th Amendment U.S. Constitution
The 17th Amendment clearly states that the "executive authority" shall issue writs of election to fill the vacancy. As demonstrated in the next quote, Blagabitch is the "supreme executive authority" in Illinois.
http://www.ilga.gov/commission/lrb/con5.htm ">ILLINOIS CONSTITUTION
SECTION 8. GOVERNOR - SUPREME EXECUTIVE POWER The Governor shall have the supreme executive power, and
shall be responsible for the faithful execution of the laws.
(Source: Illinois Constitution.)
SECTION 16. SECRETARY OF STATE - DUTIES The Secretary of State shall maintain the official
records of the acts of the General Assembly and such official
records of the Executive Branch as provided by law. Such
official records shall be available for inspection by the
public. He shall keep the Great Seal of the State of Illinois
and perform other duties that may be prescribed by law.
(Source: Illinois Constitution.)
Under Illinois Constitution, the governor has supreme executive power. The duties set out for the Secretary of State do not trump the SUPREME executive power of the governor.
Illinois law clearly lays out the process in which the governor fills a vacant Senate seat. It says SHALL make temporary appointments. This language, "shall", is mandatory language. Also, it says that the appointee "shall" receive his certificate of election upon the governor making the appointment. The Sec. of State for Illinois clearly has no discretionary role in the appointment of a senator.
Powell v. McCormack via Wikipedia.orgThe majority opinion was authored by Chief Justice Warren, and signed by Black, Brennan, Douglas, Harlan, Marshall, and White.
The opinion stated that the case was justiciable; that it did not constitute a political question that pit one branch of government against another. Rather, it required "no more than an interpretation of the Constitution".
...
The majority opinion held that Congress does not have the power to develop qualifications other than those specified in Art. I, § 2, cl. 1-2.
Article I, section 5, of the U.S. Constitution states that "Each house shall be the judge of the . . . qualifications of its own members," but then immediately states that each House has the authority to expel a member "with the Concurrence of two thirds." The Court found that it had a "textually demonstrable commitment" to interpret this clause. In the instant case the Court so did. The Court's interpretation was that the clause meant that expulsion was the only method for a House to determine the qualification(s) of its members.
The Court reasoned that the authority of Congress in this matter was post facto, i.e., after a member elect had been so created by his/her election under the laws of the state in which the congressional district resided; after his/her qualification for standing in such an election according to the qualifications specified in the U.S. Constitution; and after accepting the oath of office and enrollment into the Congress, determine the qualification(s) of its members. It was unclear whether a vote of two-thirds would have been reached if the House resolution had specified expulsion (Art. I, § 2, cl. 5; Art. I, § 5, cl. 2) rather than exclusion. Thus, the Court found that Powell was wrongfully excluded from his seat.
The Court found that Congress is the whole body of initially candidate members (since under the U.S. Constitution all seats are open for elections in every election cycle) who have been elected by the laws of the several states (in and for each state’s apportioned congressional districts), who assemble at the seat of the Federal Government on the 3rd day of January after the preceding November’s congressional elections. On that date they are sworn in (through their individual oaths of office) and thereby they collectively become the Nth Congress (e.g., 89th, 95th, 105th).
The Court did not reach (because it determined it did not need to in order to definitively rule in this case) the question of which Congress the Constitution was referring to that had the power to expel one of its members.
The Court determined in this case that no Congress could exclude a not-yet member (i.e., a candidate member) from being sworn in and taking their seat in the House. The Court found that if the Congress went beyond a determination that a candidate member had satisfied the Constitution’s qualifications for membership (and had been duly chosen by, and through the laws of their state) it could not (under the Constitution) go further in examining and possibly rejecting a candidate member before administering the oath of office, and seating them.The Court did not explicitly decide whether a particular Congress (105th, 106th, etc.) had the power to prospectively expel an individual from a future Congress without encumbering that future Congress from having, after the re-election, re-swearing in, and re-seating of a formerly expelled member, to expel the member all over again. Because the Court in effect did decide that the states were not prohibited from putting on their congressional district ballots, nor were the voters prohibited from electing, an individual who had been expelled from a previously existent or an existing Congress. Once the Congress had satisfied itself that a candidate member had been presented to it from a Congressional District in accordance with the Congressional District’s State constitution and laws and was also not in conflict with the Congressional qualifications set down in the U.S. constitution, the U.S. Congress had an affirmative constitutional duty to administer the oath to, swear in, and enroll upon the rolls, the candidate member as a Member of Congress.
The challenge to the Court in its analysis and decision was devising a proper course of action between the competing sovereign authorities (the Congress over itself and its members, the people and the states over the Congress) over the choosing of members to the Congress. The Court looked at the historical precedent of the House, the history of its candidate members, and the role of the states and their voters in choosing their representatives. The Court concluded that the Constitution (which is the word and will of the people), the weight of history (the record of how the people have used their constitution), and the Federal structure of our Government (i.e., the role of the states in organizing and managing elections within their borders) required the Court to decide that the sovereign will of the people (as expressed in the democratic process), and the coordinate role of their States, must be held supreme in this instance.
The people, through their Constitution, affirmatively posited, defined, and delimited, in toto, the qualifications for standing in elections for membership in the Congress. The states, under the 9th and 10th Amendments to the Constitution, explicitly retain unto themselves the power to make the laws for the government and regulation of elections for Federal offices that are apportioned to them (the states) by the U.S. Constitution. Therefore, the people and the states together have the sole authority for the creation, production, and generation of candidate members of the U.S. Congress through the operation of the laws of the several states, as well as the Articles and Clauses of the U.S. constitution. Under this scheme, the Congress itself is become a creation of, and subordinate to, this process. And the Congress' processes and procedures for the management, administration, and discipline of Members (Members, once they have taken the oath, been sworn, and entered upon the rolls) are constitutionally subordinate to the sovereignty of the people and the states respectively over the creation of the membership of the Congress.http://en.wikipedia.org/wiki/Powell_v._McCormack">Powell v. McCormack
This clearly says Congress has no discretion above what the Constitution explicitly lays out in determining who is seated in Congress. Even then, they can't preemptively exclude anyone. The person must be seated, and THEN the Senate can judge the "qualifications" of the member. The qualifications that the senate can judge are those that are spelled out in the Constitution. There is no separation of powers issue here. The Senate is not the sole "decider" when it comes to the election of the members of Congress.
PER THE CASE: "And the Congress' processes and procedures for the management, administration, and discipline of Members (Members, once they have taken the oath, been sworn, and entered upon the rolls) are constitutionally subordinate to the sovereignty of the people and the states respectively over the creation of the membership of the Congress."
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