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Sam Curtis: The Same Ole Schickardy, From Powell To Burris

Governor Rod Blagojevich with Roland Burris(right)

Governor Rod Blagojevich with Roland Burris(right)

The embattled Illinois Governor Rod Blagojevich has named Roland W. Burris to replace President-elect Barack Obama in the Senate. Controversy has arisen because Blagojevich has been arrested and charged by the U.S. Attorney Office on allegations of attempting to sell the vacated seat to the highest bidder.

The Illinois Secretary of State has vowed not to certify the appointment. Harry Reid and the Democrats in Congress with the blessings of our President -elect, Barack Obama are yelling to the top of the Capitol dome that they will not seat Roland Burris.

It’s all a big smoke screen diverting attention away from Congress’ automatic pay raise and their failure to provide safeguards to assure appropriate spending of the bailed out Corporations.

First, in spite of the allegations surfacing about the pay for play scheme, Blagojevich who is presumed innocent, is still the Governor and has the sole power to make the appointment. The Secretary of State of Illinois is the keeper of the official records, laws, and Great Seal of the U.S. state of Illinois. These duties have remained unchanged since Illinois became a state in 1818. The Secretary of State shall perform all duties that may be prescribed by law. This mandatory language does not give Mr. Jesse White, the current Secretary of state, any discretion in the matter, leaving him with no choice but to certify the selection.

As to Harry Reid, President -elect Obama and the rest of the Democratic lawmakers, please go and read Powell v. McCormack, 395 U.S. 486 (1969). This case involves Congress’ refusal in 1967 to permit a re-elected Adam Clayton Powell Jr. to take his seat with the 90th Congress after being embroiled in scandals (allegedly refusing to pay a judgment ordered by a court in New York, misappropriating Congressional travel funds, and illegally paying his wife a Congressional staff salary for work she had not done).

In the 1969 case, the United States Supreme Court had to answer the question of whether Congress can exclude a person, who has met the requirements written in the text of the U.S. Constitution and who has been elected to Congress, from serving in Congress.

The majority opinion written by Chief Justice Earl Warren 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…qualification 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 which found that it had a “textually demonstrable commitment” to interpret this clause found that the clause meant that expulsion was the only method for a House after determining that the member is unqualified to serve. The Court reasoned that the authority of Congress in the Powell 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. In other words, Congress only remedy of expulsion cannot occur until the member elect actually takes the oath of office and of course there must be some wrong doing on the part of that member.

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. Thus, the Court found that Powell was wrongfully excluded from his seat.

Although we are talking about an appointment and not an election, the Burris appointment was made properly under the laws of the State of Illinois, and therefore fits snugly in the ruling of Powell v. McCormick Id. Therefore, Congress must permit Mr. Burris who incidentally, is a Howard School of Law graduate to take the oath and be seated.

We cite the Howard law affiliation because Herbert O. Reid, a Howard University School of Law graduate and professor, represented Adam Clayton Powell Jr. and argued this landmark case before the U.S. Supreme Court. A distinguished Constitutional law professor, Mr. Reid had the assistance of the Howard law school students on the case as legal researchers and practiced his oral argument in Howard University Mock Courtroom. Prior to the Powell case, Mr. Reid taught Mr. Burris who graduated with his Juris Doctors in 1963. Now some forty odd years later, the late Professor Reid is still reminding us of our rights and obligations under the U.S. Constitution.

Mr. Burris has an outstanding record as the first African American official elected statewide in the State of Illinois. As such, he served three terms as the state’s Comptroller and also served as the states’ Attorney General. Unlike Jesse Jackson Jr., Mr. Burris who unsuccessfully sought the Senate seat early in his political career is not tainted under the current cloud of the alleged Blagojevich pay for play scandal. He at no time voted himself for an automatic pay raise which is something that the current have no shame Congress can say. Further as the Illinois State Attorney General, he did not green-light any pardons of a rich fugitive, reeking with the appearance of impropriety. In essence, the democratic Congress have no reason to bring him up for expulsion.

We should also note that Governor Blagojevich has not been convicted of any wrong doing in a court of law and as stated earlier he is presumed innocent.

Although Americans overwhelmingly voted for change in the November elections, it appears that we will start the year 2009, with the same Ole Schickardy from mostly the same ole butt-holes in Congress. We need to vote their butt-holes out the next time.

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