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Rahm Emanuel’s Resignation Calculus

 

           While most of America is worrying about losing a job, there is at least one person who has to worry about having too many.  That would be Rahm Emanuel, who currently holds at least three different titles and responsibilities.  He is a Member of the 110th Congress, representing the 5th Congressional District of Illinois.  He is a Member-Elect of the 111th Congress, having been re-elected in November to that seat.  He is President-elect Obama’s designee for White House Chief of Staff, a position he will formally assume sometime after January 20, 2009.  In the meantime, Emanuel presumably has significant responsibilities for the presidential transition.  

            Emanuel cannot serve as WH Chief of Staff and be a Member of Congress at the same time due to the Incompatible Offices Clause of the Constitution, which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.”  This clause was designed, according to Federalist No. 76, to protect against “the danger of executive influence upon the legislative body.”   

To comply with the Incompatible Offices Clause, Emanuel will have to resign his seat in Congress before assuming the office of COS.  For purposes of this discussion, we will assume that there is nothing constitutionally, legally or ethically problematic with regard to the de facto authority that Emanuel exercises in the presidential transition (while at the same time serving in Congress). On that assumption, there is no particular obligation on Emanuel’s part to resign prior to January 20.   Instead, his decision on when to resign is presumably based on political and personal factors.

Emanuel’s replacement will be chosen in accordance with the House Vacancies Clause of the Constitution, which provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Unlike Senate vacancies, which may filled temporarily by the Governor’s appointment, House vacancies can only be filled by special election. Article 25-7 of the Illinois Election Code provides that “[w]hen any vacancy shall occur in the office of representative in congress from this state more than 180 days before the next general election, the Governor shall issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy.”

Emanuel has not and probably will not resign his seat in the 110th Congress. This is understandable because it would have been virtually impossible for Illinois to hold a special election to fill his seat within the time remaining in the 110th Congress. Retaining his seat, in addition to allowing him to collect his congressional salary and use his congressional office and staff, permits Emanuel to continue to represent the people of his district during the remainder of the Congress. Given the extended lame duck session and the significant legislative issues that are still before the Congress, this decision makes perfect sense.

On the other hand, it is more puzzling as to why Emanuel has not yet resigned his seat in the 111th Congress. House precedents allow a Member-elect to resign his seat prior to start of the Congress for which he was elected. Thus, Emanuel could have resigned immediately upon deciding to take the COS position. He also could have resigned effective at a future date, e.g., January 20, 2009. Whether or not to treat these resignations as creating an immediate vacancy for purposes of the Illinois election code would have been an issue of Illinois law, and would have been a question for Governor Blagojevich to resolve. It is difficult to see, however, why Emanuel would delay his resignation unless he had some reason for postponing or, alternatively, for retaining control over the date of the special election.

Of course, this calculus changed when Governor Blagojevich was charged by federal authorities with various felonies, including allegedly attempting to sell Illinois’s vacant Senate seat. Now Emanuel presumably does not want the Governor to be issuing a writ of election for his seat if it can be avoided. Apart from the poor atmospherics of having the Governor involved in filling a congressional vacancy, Emanuel may be concerned that the Governor could manipulate the process by, for example, declaring the special election within an unreasonably short time.

As long as Blagojevich remains Governor, Emanuel has a conundrum. He could take the oath of office for the 111th Congress on January 6, and hope that Blagojevich is removed from the Governorship by January 20. Alternatively, he could not take the oath of office on January 6, but argue that the House should not consider the seat to be vacant due to the extraordinary circumstances presented. (He could then act as COS and yet continue to delay the special election indefinitely). This would be a somewhat far-fetched position, though no more so than the Illinois Attorney General’s attempt to have the courts declare the Governor incapable of carrying out his duties because of his legal troubles.

If, on the other hand, Blagojevich resigns in the next few days, one would expect that Emanuel would resign from the 111th Congress immediately thereafter, so as to allow the new Governor to call a special election and to ensure that the people of the 5th Congressional District of Illinois are without representation for as little time as possible.

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