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Can the Senate Constitutionally Refuse to Seat Roland Burris?

            This article from ABC News highlights an issue I noted several weeks ago when it questions whether the Senate actually has the power to refuse to seat Roland Burris as a Senator from Illinois.  The Senate has (or at least has previously asserted) the power to refuse to seat an appointee if it finds that the appointment was the result of fraud or corruption.  In this case, however, the Senate evidently has no basis for such a finding.  As Jan Baran notes, the Senate could claim that there needs to be an investigation before seating Burris, and thereby stall things for awhile.  But in the absence of any evidence that Burris obtained the appointment through fraud or corruption, this would be a constitutionally questionable act. 

            Conceivably, Burris could challenge the Senate’s refusal to seat him through a lawsuit against the Senate officer responsible for paying him (as was done in Powell v. McCormack).  This case would be distinguishable from Powell because the latter involved the power to judge a Member’s qualifications, whereas the Burris case would involve the power to judge a Member’s “election.”  But it is far from clear that the use of the election-judging power to exclude an appointee would be exempt from judicial review, particularly in circumstances where there was no prima facie evidence that the appointment was invalid.

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