Rove Seeks Legal Advice of Noted Constitutional Scholar

             The House Judiciary Committee has subpoenaed Karl Rove to appear and testify at a hearing on Monday, February 2.  Rove’s attorney has responded by forwarding the subpoena to the Obama White House and asking, in essence, whether President Obama agrees that Rove should continue to abide by former President Bush’s instruction not to appear.  Obama Press Secretary Robert Gibbs says that the matter has been turned over to the White House Counsel for consideration. 

            Some have asked why Rove should be entitled to an advisory opinion from the Obama Administration on whether he must comply with a congressional subpoena.  After all, the ordinary witness does not have that option, but must choose between complying with a congressional subpoena or facing a possible criminal prosecution for contempt. 

            Rove, however, is not in the position of an ordinary witness.  The former president has directed him not to appear before Congress based on an asserted absolute immunity.  This immunity has been claimed by the Office of Legal Counsel not only in the Bush 43 Administration, but in the Clinton and previous administrations.  Moreover, there is a case currently pending before the D.C. Circuit (Miers v. House Judiciary Committee)  in which the court may rule on the existence of the immunity.  Up to this point, the Justice Department has argued in favor of the immunity in Miers, and the Obama Administration will have to decide whether to change this position.  

            Given this state of affairs, the Obama Administration has several possible responses.  First, it could tell Rove that it does not recognize the existence of the immunity.  In that case, Rove could choose to ignore this advice and refuse to testify anyway, taking the risk that he might ultimately be prosecuted for contempt of Congress.  More likely, Rove will tell former President Bush that he intends to appear unless Bush brings a legal action to vindicate the claimed immunity.  Otherwise, Rove would appear on Monday and invoke executive privilege on a question-by-question basis.  

            Second, the Obama Administration could tell Rove that it has not yet decided on what position it intends to take in the Miers case and that the matter is under review by the Department of Justice.  In addition, or in the alternative, it might tell Rove that to the extent the immunity is controlled by the current president, Obama declines to assert it.  Such a response would give Rove somewhat more cover to refuse to appear before the House Judiciary Committee.  Rove could argue to the committee that the question of whether the immunity exists is an unresolved legal question and that the committee should either bring a declaratory judgment action against him (as it did for Miers and Bolten) or should await the outcome of the case pending in the D.C. Circuit. 

            Third, the Obama Administration could tell Rove that the immunity belongs to the current president, not the former president, and inform him that Obama waives it.  I think this response is less likely than the first two.  If one accepts for sake of argument that the immunity exists in the first place (IMHO, a very dubious proposition), it would not make much sense to allow the current president to waive the immunity for aides of former presidents.  The whole idea of the immunity is that a presidential aide acts as the “alter ego” of the president for whom he or she works.  Allowing a different president to control the assertion of the immunity would be like allowing the assertion of Speech or Debate privilege for a congressional aide to be controlled by the successor to the congressman whom the aide served. 

            Finally, the Obama Administration could tell Rove that he should abide by the instructions of the former president, at least for the time being.  In that case Rove is off the hook for the moment. 

            Of course, the Obama Administration might not respond at all.  In that case, Rove and his attorney will probably construe the non-response as meaning that the current administration adheres to the previously expressed views of the Justice Department, and decline to appear on that basis.     

             My bet would be on some variant of the second response.  But we shall see.

Potential Treasury Chief of Staff and the “Specific Issue” Prohibition

             ABC News reports that Mark Patterson, a former lobbyist for Goldman Sachs, is in line to become chief of staff to incoming Treasury Secretary Tim Geithner.  The article does not say whether the Obama Administration is considering a waiver of the Ethics E.O. for Patterson.   

            Would Patterson be able to take the chief of staff job without a waiver?  According to the last LDA filing listing Patterson as a lobbyist, Patterson lobbied the House, the Senate and the “Federal Reserve System.”  The specific lobbying issues on which Patterson worked included (1) the Foreclosure Prevention Act of 2008; (2) credit default swaps clearing; (3) over-the-counter derivatives; (4) investment banking issues and, my favorite, (5) “general economic conditions.” 

            Under Section 3(b) of the Ethics E.O., Patterson would be precluded from participating in any of these specific issues. Unless Geithner wants a chief of staff who can only discuss sports and the weather, I’m thinking Patterson needs a waiver.    

Roll Call Report on Ethics Executive Order

           Roll Call offers this report on the reaction of Washington lobbyists to the new E.O. on ethics.  It makes several interesting points.  First, it notes that the E.O. is viewed as a virtual ban (absent a waiver) on hiring lobbyists by the new Administration.  Second, it notes that some lobbyists are looking for ways of getting around the ban by, for example, taking a job on Capitol Hill in order to “get clean” (i.e., after two years working for Congress the lobbyist would no longer be subject to the restrictions on hiring incoming lobbyists). 

            Finally, the reporter observes that there will now be a strong incentive to avoid registration as a lobbyist.  For example: 

One registered lobbyist noted with some frustration the sight of an acquaintance who is not a lobbyist but who seems very much like one. 

“I asked him, ‘Are you a lobbyist?’ and he said ‘no,’” this source recalled, “But he talks to Members of Congress all the time.  He told me, ‘I’m allowed to give my opinion on things.’”  

Since enforcement of the Lobbying Disclosure Act is virtually unheard of, the temptation not to register will inevitably become greater as a result of the E.O.

Obama’s Executive Order on Ethics- A Journey Through Section 3

         Today we will commence a review of the Obama Executive Order on Ethics, a subject that I suspect will be much discussed over the coming months and years.  We will focus first on the provisions applicable to incoming lobbyists.  Although the E.O. is not limited to lobbyists, its application to them is particularly draconian.  For illustrative purposes, we will consider how the provisions would apply in the case of Eric Holder, the nominee for Attorney General.  

            The relevant provision is Section 3, which requires appointees to agree to the following: 

3.  Revolving Door Ban    Lobbyists Entering Government.  If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment: 

(a)    participate in any particular matter on which I lobbied within the 2 years before the date of my appointment; 

(b)  participate in the specific issue area in which that particular matter falls; or 

(c)    seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment.”

Time Period. The first thing to note about this provision is that it is limited to persons who were “registered lobbyists” during the two years prior to their appointment. Thus, for example, Holder was registered as a lobbyist for Global Crossing in 2004. Because this was more than two years before his appointment, it has no impact on his obligations under Section 3.

The time period presumably reflects an assumption that an appointee is more likely to be partial to a client that he or she represented in the recent past. At best, this seems like a gross generalization, but let’s accept it for the sake of argument. This aspect of the appointee’s conflict of interest is already covered by Section 2 of the E.O., which limits the appointee’s involvement in matters relating to a former employer or former client from the previous two years. Section 2, however, applies to all appointees, not merely lobbyists (which makes sense, as there is no reason to believe that lobbyists are unusually attached to their clients- just ask the Indian tribes represented by Jack Abramoff).

Perhaps it is thought that there is an “appearance of impropriety” when ex-lobbyists are involved in matters in any way related to their prior lobbying activities. If so, it is not obvious why this appearance would dissipate after two years. Nevertheless that is the line drawn by the E.O.

Registered Lobbyist. Section 3 applies only to “registered lobbyists.” A registered lobbyist is defined as a lobbyist registered under the Lobbying Disclosure Act, 2 U.S.C. § 1603(a), or a lobbyist identified in a report or registration filed by a lobbying organization under the LDA.

At the outset it should be noted that the LDA is a disclosure statute, designed to give the public a broad picture of who is lobbying and how much is being spent on lobbying. The definitions of what constitute lobbying under the law are technical, and do not necessarily correspond to what the public thinks of as a “lobbyist.” You can be required to register as a lobbyist even though only a small part of your job involves contacting government officials. Moreover, many registrants tend to over-disclose, identifying employees as lobbyists even though they may not meet the formal requirements.

Conversely, not everyone who the public would consider to be a lobbyist is a “registered lobbyist.” For example, two of the most notorious modern influence-peddlers, Mitch Wade and Brent Wilkes (who were convicted for bribing former Congressman Duke Cunningham), were not registered lobbyists, and probably were not required to be under the LDA.

One way to avoid a registration requirement under the LDA is to fall within one of the enumerated exceptions to the definition of “lobbying contact.” For instance, there is an exception for contacts made in the course of “a judicial proceeding or a criminal or civil law enforcement inquiry, investigation or proceeding.” Thus, when Holder represented Chiquita Brands International in a long-running investigation by the Justice Department, he did not register as a lobbyist, even though his representation evidently included significant negotiations and communications with the Department that led to a civil settlement and a subsequent criminal plea. Had Holder registered as a lobbyist for Chiquita, he would be disqualified from becoming Attorney General under Section 3(c).

Another exception to the LDA is for communications “made on behalf of the government of a foreign country or a foreign political party.” These communications are instead governed by the Foreign Agents Registration Act, 22 U.S.C. § 611. Registration under FARA, however, apparently does not trigger Section 3 of the E.O., which I can only assume is an oversight.

Finally, there may be instances where an appointee arguably should have registered as a lobbyist, but failed to do so. Holder, for example, was not registered as a lobbyist for the NFL, although others at his law firm were. However, Holder represented the NFL in an attempt to counter embarrassing publicity regarding the use of performance enhancement drugs:

Holder quickly gathered senior executives from the other three leagues and their player unions and led them into a series of meetings in 2007 with top officials of, among others, the Drug Enforcement Administration (DEA), the FBI, the U.S. Anti-Doping Agency (USADA), and the Office of National Drug Control Policy (ONDCP), the agency that presides over the nation’s “war on drugs.” The sessions began with a measure of fanfare.

Whether or not Holder was required to register as a lobbyist for the NFL would depend on several factors, including which government officials he communicated with and the ostensible purpose of the communications. On the face of it, however, Holder may have had an obligation to register as a lobbyist for the NFL but failed to do so. To ensure that the purposes of the E.O. are not evaded, both the Obama Administration and the Senate will now have to ask appointees about possible improper failures to register under the LDA.

Particular Matter. Section 3(a)’s prohibition against an ex-lobbyist appointee participating in any “particular matter” follows the definition set forth in 5 C.F.R. § 2635.402(b)(3), which defines the term as “matters that involve deliberation, decision or action that is focused upon the interests of specific persons, or a discrete and identifiable class of persons. Such a matter is covered . . . even if it does not involve formal parties and may include governmental action such as legislation or policy-making that is narrowly focused on the interest of such a discrete and identifiable class of persons.” The regulation goes on to explain that a regulation that covered a large and diverse group of people, such as the Social Security Administration’s regulations on appeal procedures for disability claimants, would not be a “particular matter,” while a regulation such as the ICC’s safety standards for trucks on interstate highways would be because it affects only a relatively discrete and identifiable class of persons.

The exact scope of Section 3(a)’s prohibition, however, is of limited relevance in most situations because it is subsumed by the significantly broader prohibition of Section 3(b).

Specific Issue Area. Section 3(b) prohibits the ex-lobbyist appointee from participating in the “specific issue area” in which any matter covered by Section 3(a) falls. The E.O. does not define the term “specific issue area.” The LDA, however, requires that a lobbying report contain “a list of the specific issues upon which a lobbyist employed by the registrant engaged in lobbying activities, including, to the maximum extent practicable, a list of bill numbers and references to specific executive branch actions.”

This definition, it is important to note, leaves a great deal to the discretion of the registrant in defining the boundaries of a “specific issue.” For example, in the Global Crossing report filed by Holder’s law firm, Covington & Burling, the specific issues are identified as “CFIUS process and issues.” Would the E.O. therefore prohibit Holder (if the report had been filed within the two-year time window) from any involvement in CFIUS issues? Suppose the report had used an even broader term, like “foreign investment”? If the scope of the prohibition is to be determined by the report language, the effect of the E.O. will vary widely depending on the words chosen by the person (probably a legal assistant) who filled out the report.

Executive Agency that I lobbied. Section 3(c) prohibits any ex-lobbyist from seeking or accepting employment with any executive agency that he or she “lobbied” in the prior two years. Thus, for example, if Holder had lobbied the Justice Department within the last two years, he would not be able to become Attorney General (absent a waiver, such as that the Obama Administration provided to its nominee for Deputy Secretary of Defense).

The rationale for this rule is not self-evident. If an ex-lobbyist is already prohibited from involvement in any matters involving former clients and in any issues that were the subject of the prior lobbying, why is there also a prohibition against employment with an agency that was lobbied?

Suppose Holder had lobbied the Justice Department in 2008 with regard to the NFL’s policy on performance enhancing drugs. If he became Attorney General, he could presumably recuse himself from all matters involving the NFL or performance enhancing drugs. He would, however, still be supervising the very officials who he had previously lobbied. Perhaps it is thought that this would put those officials in an awkward position. Moreover, if government officials believe that ex-lobbyists could be appointed to powerful positions in their own agencies, they may be intimidated in dealing with politically well-connected lawyers like Holder.

If this is the reason for Section 3(c), however, the provision is not broad enough to achieve its aims. It only applies when the appointee “lobbied” the agency, which means to “have acted as a registered lobbyist.” It seems clear, though, that Holder has repeatedly communicated with the Justice Department and its components in the last two years on behalf of the NFL and other clients. Whether or not those communications technically constituted “lobbying,” they would still threaten the same harm the E.O. seeks to prevent. The logic of the E.O., therefore, seems inconsistent with Holder’s appointment as Attorney General.

More Fun with Certificates of Election

         Al Franken has petitioned the Minnesota Supreme Court for an order directing the Governor and Secretary of State to prepare and countersign a certificate of election and deliver the same to the President of the United States Senate.  The Governor and the Secretary have refused; they contend that, under Minnesota law, issuance of a certificate must await resolution of an election contest filed by Franken’s opponent, incumbent Norm Coleman.

            Franken acknowledges that Minnesota law is ambiguous on this point, but he claims that the state law must be read to mandate the issuance of a certificate.   Any other reading, he argues, would render the Minnesota law unconstitutional.  Specifically, Franken argues that Minnesota’s failure to issue an election certificate prior to the commencement of the new Congress “has interfered with the Senate’s ability to provisionally seat Senator-elect Franken and tend to the nation’s business with a full complement of Senators.”

            Franken is somewhat vague as to how the absence of a certificate has “interfered” with the Senate’s ability to seat him.  He does not actually say that the Senate is prohibited from seating him without a certificate (probably because he wants to preserve his option to argue the opposite to the Senate at a later time).  If there is such a prohibition, it can only exist because of Senate rules.  It would be this self-imposed rule, not Minnesota law, which would be “interfering” with the Senate’s ability to seat Franken.

            As suggested by the Illinois Supreme Court’s recent decision in the Burris case, it is in fact doubtful that Senate rules make the absence of a certificate an absolute bar to considering whether to seat a Senator.  If Senate rules did establish an absolute bar, there might be a constitutional objection to such rules as interfering with the Senate’s power to judge elections.  It is difficult to see, however, how this would impose upon Minnesota a constitutional requirement to issue an election certificate at any particular point in its process.

               If refusing to issue a certificate to Franken interferes with the Senate’s ability to seat him, it would have to be true that issuing such a certificate would interfere with the Senate’s ability to seat Coleman.  Yet the Senate clearly has the constitutional authority to judge the election and choose to seat either candidate, either now or at a later time.  In Roudebush  v. Hartke, 405 U.S. 15 (1972),  the winner of the initial count in a Senate race (Hartke) received a certificate of election from the State of Indiana and was provisionally seated by the Senate.   He then sought a federal court injunction to stop Indiana from proceeding with a recount, which was permitted under Indiana law notwithstanding the fact that a certificate of election had already issued.  The Supreme Court rejected the argument that the state recount would unconstitutionally interfere with or frustrate the Senate’s election-judging power: 

It is true that a State’s verification of the accuracy of election results pursuant to its Art. I, § 4, powers is not totally separable from the Senate’s power to judge elections and returns. But a recount can be said to “usurp” the Senate’s function only if it frustrates the Senate’s ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the   apparent winner in either count, and, if it chooses, to conduct its own recount. 

Id. at 25.  In other words, the Senate could have seated Roudebush (the other candidate), notwithstanding the fact that Hartke was initially declared the winner and issued the certificate of election, and it was free to accept or reject the results of the recount, regardless of whether they confirmed or overturned the results of the initial count. 

             In short, Minnesota’s refusal to issue an election certificate raises no serious constitutional question.   

Is the Secretary’s Signature Necessary on the Credentials of a Senator Designate?

          Over at Concurring Opinions Brian Kalt is kicking himself for taking Senators Reid and Durbin at their word when they claimed that Senate rules require a Secretary of State to sign the credentials of a Senator Designate (a Senator who has been appointed).  As the Illinois Supreme Court pointed out in its opinion yesterday, it is at least questionable whether Senate rules or federal law impose any such requirement. 

            I have to go Professor Kalt one better and acknowledge that I reviewed the relevant provisions without spotting what now seems like an obvious flaw in the Reid/Durbin theory.  Senate Rule II begins as follows:  “The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order . . . .”  The language of the rule thus distinguishes between “Senators elect” (i.e., those who have won an election) and “Senators designate” (i.e., those who have been appointed to the Senate).   

            Rule II then goes on to set forth recommended certification forms, including a form for certifying the appointment of a Senator.  The appointment certification form, like that for certifying an election, contains a signature line for the Secretary of State.  However, the rule does not require that any of these forms be used by the states.  As the rule states, “[t]he Secretary of the Senate shall send copies of the following recommended forms to the governor and secretary of state of each State wherein an election is about to take place or an appointment is to be made so that they may use such forms if they see fit.” (emphasis added). 

            While it was clear that the rule itself did not expressly require the Secretary’s signature, I misread Riddick’s Senate Procedure, the authoritative compilation of Senate rules and precedents, which recites the contents of the required election and appointment forms and then states that “the credentials of a Senator-elect must, under the law, be signed by the executive of the State and attested by the Secretary of State.”  The fact that the Secretary must attest to the credentials of a “Senator-elect” does not mean that he must attest to the credentials of a “Senator designate.”  Nor is there any reason to believe that Riddick would use the term “Senator-elect” to refer to both elected and appointed Senators because elsewhere Riddick refers to “the presentation and consideration of the credentials of Senators elect and Senators appointed to fill vacancies.”  Finally, Riddick’s reference to “under the law” presumably refers to 2 U.S.C. §§ 1a & 1b, which collectively provide that the Governor and Secretary of State of any state “from which any Senator has been chosen to certify his election, under the seal of the State, to the President of the Senate of the United States.”  It is arguable that the term “election” in the statute has a broader meaning that would encompass appointment, but it is certainly not clear.


            Having said this, I still think that Senate rules, as interpreted by the Senate itself, may require the Secretary’s signature on a certificate of appointment.  After all, Burris’s certificate of appointment was rejected by the Secretary of the Senate, presumably on advice of the Senate Parliamentarian among others, for lack of such signature.  The Senate has the authority to interpret its own rules and the courts should defer to the Senate’s interpretation of ambiguous rules.  At the end of the day, however, the Illinois Supreme Court’s decision turned not on whether the Senate had a rule requiring the Secretary’s signature, but whether such a rule could block the seating of an appointed Senator where “there is no question at all that the Governor did, in fact, make the appointment.”. The court held, correctly, that the answer to that question is no.

State of Confusion

Illinois Secretary of State Jesse White explains the legalities of his refusal to sign the certification of Roland Burris’s appointment to the U.S. Senate: 

“My signature is not necessarily required for the Senate to place the gentleman in the seat,” White said Tuesday during a radio interview. “It carries a lot of weight, but my signature is mostly ceremonial, rather than it being a point of law.”

I trust that clears everything up.


A Summary of the Burris Commentary and Issues

The dispute over the appointment of Roland Burris has drawn commentary from a number of legal scholars.  Akil Amar, Josh Chafetz and Larry Tribe have expressed the view that the Senate may properly refuse to seat him, as have, somewhat more tentatively, Jack Balkin and Mark Tushnet.   Eugene Volokh, Brian Kalt, Michael Rappaport, Sandy Levinson, Erwin Chemerinsky and Don Wolfensberger take the opposite view, with Ann Althouse and Walter  Dellinger also expressing skepticism about the Senate’s authority to exclude Burris.  Rick Hasen believes that the right way to get rid of Burris would be to seat him and then expel with a two-thirds vote, while Bob Bauer argues that the Senate could preemptively expel Burris (presumably with a two-thirds vote). 

Here is a brief summary of the issues.

Does the Senate have authority to judge appointments? No commentator seems to doubt that the Senate has some authority to judge appointments. This may simply reflect the fact that the Senate by necessity must make decisions about who is entitled to a seat. The Senate has to determine whether state law empowers the Governor to make a temporary appointment (in Alaska, for example, this is not so clear). The Senate has to determine whether an appointment was actually made and, if so, the person claiming the seat is the person appointed.

Can Burris be rejected on the grounds that he lacks a proper certificate of appointment? In order to ensure that the claimant has authentic credentials, the Senate (and federal law, see 2 U.S.C. §1b) requires that the certificate of appointment (or election) be signed by both the Governor and the Secretary of State. Although the Secretary of State has refused to sign Burris’s certificate, even the supporters of Senate exclusion doubt that this is a valid basis for refusing to seat him. Thus, Professor Tribe notes “that the Illinois secretary of state refuses to sign the certificate of appointment is evidently immaterial under the governing provisions of Illinois law, which make the signature merely ceremonial.” The deficiency in the certificate perhaps provides the Senate with a basis for refusing to seat Burris immediately, but only for so long as it takes to satisfy itself that (1) Burris was in fact appointed by the Governor (which is not in dispute) and, perhaps, (2) the Secretary lacks any discretionary authority to withhold his signature (which also seems clear). Moreover, this issue becomes moot if the Illinois Supreme Court grants Burris’s motion to compel the Secretary to sign the certificate.

Professors Levinson and Tushnet have some follow-up debate on this point, with Tushnet making the interesting (but I think quite mistaken) suggestion that the Secretary here might be considered part of executive appointing authority under the 17th Amendment.

Is the Senate’s authority express or implied? The Constitution provides that each House “shall be the Judge of the Elections, Returns and Qualifications of its own Members.” It is conceded that Burris has the constitutional “qualifications” to be a Senator (age, citizenship and residency) and the Supreme Court held, in Powell v. McCormick, 395 U.S. 486 (1969), that Congress cannot refuse to seat a member for failure to meet qualifications other than those specified in the Constitution. Some commentators construe the Senate’s refusal to seat Burris as an impermissible attempt to add qualifications, but the Senate would not attempt to justify its action on that basis. Instead, the Senate would have to proceed either under the express powers to judge elections and returns, or under an implied power to judge appointments.

My initial view was that the Senate has no express power to judge appointments, but I am now leaning slightly the other way. Professors Amar and Chafetz argue that the power to judge returns encompasses judging of appointments, on the theory that the “report” of the appointment would constitute a “return” within the meaning of the Constitution (Tushnet makes a similar point). Although more historical evidence is needed to substantiate this argument, it is not implausible. Alternatively, as Amar and Chafetz suggest, the election-judging power may be applicable here. One reason for thinking that an appointed Senator is nonetheless “elected” within the meaning of the Constitution is that the Qualifications Clause requires that a Senator “when elected, be an Inhabitant of that State.” Since it seems unlikely that this requirement was intended to be inapplicable to appointed Senators, one may infer that the term “election” embraces appointed Senators as well as those chosen by the people (or, as in the original Constitution, the state legislatures).

Whether the power is express or implied is not necessarily determinative of how Burris’s case should be treated. However, if the power is expressly conveyed by the Constitution, one might tend to give the Senate a broader discretion to decide whether to exclude an appointee. In addition, if the power is “textually committed” to the Senate, the courts are more likely to view its exercise as a political question (as discussed later).

How far does the power to judge appointments extend? This question lies at the heart of what divides the commentators. Every commentator appears to agree that Burris could be excluded if his appointment were procured by bribery (or other corrupt means such as fraud, blackmail, or extortion). However, Amar, Chafetz and Tribe would go further and say that the appointment can be set aside because it was “tainted” by Blagojevich’s initial (alleged) attempt to sell the Senate seat, even though Burris’s appointment itself was not procured by bribery. Amar and Chafetz note that Burris may only have been chosen because Blagojevich refused to consider other candidates who would not go along with his “pay to play” scheme or who were important witnesses in the criminal case against him. Tribe would go even further; he suggests that the mere appearance of impropriety resulting from the corruption scandal is enough to justify the Senate in setting the appointment aside.

On the other side, Professor Kalt argues that the Amar/Chafetz thesis has no logical stopping point. If the original corruption taints future appointments by Blagojevich, wouldn’t it taint a future appointment by Blagojevich’s successor (who would no doubt be less likely to consider anyone involved, even tangentially, in the scandal)? This problem, of course, is even more acute if one accepts Tribe’s appearance of impropriety standard.

Similarly, Dean Chemerinsky raises a “slippery slope” concern with rejecting Burris for reasons other than actual corruption. He argues that it set be a “dangerous precedent” and could “open the door to the Senate or the House overturning the will of the people and excluding representatives under one or another pretext.” Or as Levinson puts it, “I don’t see how one can mount a good-faith argument against seating Burris unless one is willing to open each and every gubernatorial appointment to some kind of ‘good-government’ scrutiny.”

It seems to me that the most fundamental problem with the attempt to exclude Burris is that it is based on a blanket refusal to accept anyone that Blagojevich appoints. Indeed, Tribe explicitly endorses that as a virtue of the Senate’s position, namely that it is entirely unrelated to the identity of the appointee. Whatever the outer boundary of the Senate’s authority to judge appointments, surely it must be crossed if the Senate uses it to strip the Governor of his appointment power altogether. It would be as if the Senate declared that the State of Illinois was too corrupt and incompetent to hold a fair election and so that it would refuse to seat any Senator elected from that state.

What quantum of evidence is needed to justify conducting an investigation before seating Burris? If the Senate believes that Burris’s appointment is potentially illegitimate, it has the option of seating him without prejudice to its right to determine that he is not entitled to the seat, or to decline to seat him pending an investigation by the Committee on Rules and Administration. While none of the commentators propose a specific evidentiary standard that would need to be met in order to justify an investigation prior to seating, presumably there would have to be something more than mere suspicion. Otherwise, the Senate could use its power to refuse to seat elected or appointed Senators for arbitrary or improper reasons.

One might argue that Blagojevich’s previously corrupt conduct is enough to warrant an investigation of whether Burris’s appointment was procured in a corrupt manner. This argument, however, is weak under the circumstances. Given that Burris was not appointed (or, apparently, even considered for appointment) until after Blagojevich was arrested for allegedly trying to sell the Senate seat to others, it seems highly unlikely that Blagojevich was bribed to appoint Burris (Blagojevich probably counted himself lucky that he didn’t have to pay Burris to accept the appointment). As Levinson points out, “it’s clear that [Blagojevich’s initial attempt to sell the seat] didn’t work, and that he, clever politician that he is, reached out to strengthen himself with a key constituency and, an added bonus, to discomfort many of his erstwhile Democratic Party allies.”

To be clear, I have no doubt that the Senate may conduct an investigation regarding the circumstances of Burris’s appointment, but it is questionable whether it has the constitutional authority to prevent him from taking his seat while the investigation is pending.

Would a challenge to the Senate’s refusal to seat Burris be justiciable? Regardless of whether the Senate has the constitutional authority to refuse to seat Burris, a court might conclude that the political question doctrine precludes it from reviewing that decision. Although Powell held the political question doctrine inapplicable to an attempt to exclude a Member for lacking qualifications other than those specified in the Constitution, Professor Dellinger states that the decision “leave[s] open the possibility that a Congressional decision finding that a member was not properly elected—in this case, appointed” would be immune from judicial review.

Indeed, it is generally believed that the exercise of the election-judging power would be, at least in most circumstances, non-justiciable. As then-Judge Scalia wrote in the DC Circuit case of Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986), involving an election contest from Indiana, “[i]t is difficult to imagine a clearer case of “textually demonstrable constitutional commitment” of an issue to another branch of government to the exclusion of the courts . . . than the language of Article I, section 5, clause 1 that ‘[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members.’”

Whether or not the decision to seat Burris would be non-justiciable depends, in part, whether the power to judge appointments inheres in the election-judging power, or whether it is merely an implied power. If the former, the decision not to seat Burris would more likely be viewed by the courts as beyond their review. However, even in that instance, the courts might review the Senate’s decision if they construe it not as an attempt to judge a particular appointment, but an attempt to strip the Governor of the appointment power altogether.

All in all, the question of justiciability is a close one (as I think most, if not all, of the commentators agree). However, as Professor Rappaport points out, “one must distinguish between who gets to decide and what the Constitution requires of the decisionmaker.” In other words, whether the Senate could get away with refusing to seat Burris is a different question that whether it has the constitutional authority to do so. In fact, Dellinger notes that the possible absence of judicial review is reason for the Senate to “take more care, not less” regarding its decision. As he puts it, the “Senate’s power to decide is only the power to decide correctly under the law, not the power to decide however the majority of the Senate prefers to decide.”

May the Senate use its powers under the Disciplinary Clause to expel Burris? The Constitution provides that each House may “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” One might argue that this provision limits punishment to “disorderly Behaviour,” but allows expulsion for any reason whatsoever. However, while both the House and the Senate have construed the scope of their disciplinary powers broadly, neither has suggested that it has the right to expel a Member without some sort of misconduct by that Member. Thus, I believe that it would be problematic for the Senate to expel Burris unless it found some sort of misconduct on his part (although one could imagine that such misconduct might consist of Burris’s acceptance of the appointment with knowledge of improper motivations on the part of Blagojevich). Nonetheless, Professor Hasen is almost certainly correct that if the Senate were to expel Burris (which would require a two-thirds vote), such action would be judicially unreviewable.

Rahm Emanuel’s Peculiar Resignation

            By letter dated January 2, 2009 (although apparently released earlier in the week), Rahm Emanuel informed Illinois Governor Rod Blagojevich that “I am writing to resign my position as United States Representative from the Fifth Congressional District of Illinois, effective January 2, 2009.” 

            What is odd about this letter is that January 2 was the last full day of Emanuel’s term as Representative in the 110th Congress, which expired at noon on January 3.  As I pointed out previously, there was little reason for Emanuel to resign his seat in the 110th Congress since that seat could not be filled by a special election in the remaining time.  It is hard to understand why Emanuel would resign his seat one day before his term expired. 

            Even more surprising, the letter does not explicitly state that Emanuel is resigning his seat in the 111th Congress.  Resigning his position as Representative on January 2 would not, at least read literally, have any effect on Emanuel’s status in the 111th Congress.  The letter speaks of resigning only one “position” and, on January 2, his “position” was that of United States Representative in the 110th Congress.  With regard to the 111th Congress, Emanuel was not a “Representative” or a “Member,” but a “Member-elect.”  

Moreover, had Emanuel intended to refer to his seat in the 111th Congress, one would expect him to have used a less ambiguous term than “resignation.”  Technically, it is arguable that a Member-elect does not “resign” at all, but simply declines to take the oath or accept the seat.  See J. Chafetz, Leaving the House: The Constitutional Status of Resignation from the House of Representatives, 58 Duke L. J. 177, 188, 216-18 (2008) (discussing the distinction).  For example, when Newt Gingrich decided in November 1998 that he would leave Congress at the end of the 105th Congress, he informed the Governor of Georgia that he had “withdrawn” and would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress.” 

Emanuel clearly expects that everyone will understand his letter to be statement of intent not to take his seat in the 111th Congress.  Perhaps then his letter merely reflects sloppy drafting.  Or could he have deliberately set out to create an ambiguity with regard to his status in the 111th Congress?

Is Hillary Clinton Unconstitutional?

          On Friday, December 19, 2008, the President signed into law S.J. Res. 46, which provides “[t]he compensation and other emoluments attached to the Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007 and ending at noon of January 3, 2013.”  

            This law, of course, is the so-called “Saxbe fix,” which in this case is intended to obviate objections to the constitutionality of appointing Senator Hillary Clinton as Secretary of State.  Because the salary of the Secretary of State was raised in January 2008 (by approximately $4,700 to $191,300) and Clinton was elected for a (second) term in the Senate from January 3, 2007 to January 3, 2013, her appointment would violate the Emoluments Clause absent this fix. 

            It should be noted that the January 2008 pay raise resulted from a procedure established by a statute, 5 U.S.C. § 5303, enacted before Senator Clinton was in Congress.  Under this law, the salaries of federal employees, including the Secretary of State, are increased annually according to a cost of living formula unless the President certifies that such an increase would be inappropriate.  The Executive Order issued pursuant to this statute did not make such a certification so the pay raise went into effect. 

            Professor Tribe, among others, argues that the 2008 pay increase does not implicate the spirit of the Emoluments Clause because “the salary increase at issue here was created not by any enactment for which Senator Clinton voted or on which she had any opportunity to vote.”  Since Clinton played no role in the pay increase, the theory goes, there is no reason why it should affect her eligibility for appointment.  As Professor Sandy Levinson puts it, “no serious argument can be made that preventing [Clinton’s] nomination would relate to the purposes (preventing self-dealing or corruption) of the initial clause.” 

            There are several problems with this argument.  First, the Emoluments Clause is a prophylactic rule that applies regardless of whether the Member voted on, or even voted against, the pay raise for the office in question.  Whether it was to prevent clever forms of self-dealing or corruption or whether it was to incentivize Members to limit pay increases, the Framers wanted the disability to apply regardless of whether the Member had any responsibility for the pay raise in question. 

            Second, it may be an overstatement to say that the 110th Congress bore no responsibility for the pay raise since Congress was responsible for approving the budget and appropriating the funds for the pay increase.  Third, if the use of automatic pay increases were recognized as a means of circumventing the Emoluments Clause, this would give Members an incentive to adopt such pay increases, which would seem to be the opposite of what the Clause was attempting to accomplish. 

            Finally, the text of the Emoluments Clause simply requires that there have been an increase in emoluments during the relevant time and does not specify how the increase must come about.  Thus, even Professor Tribe apparently acknowledges that the Clause applies to Senator Clinton,  If this is so, it is difficult to see how the Saxbe Fix becomes any more effective merely because of the automatic nature of the pay increase. 

            Because, as I previously argued, the Saxbe Fix does not effectively remediate the violation of the Emoluments Clause, Hillary Clinton is in fact unconstitutional.  (see Michael Stokes Paulson, Is Lloyd Bentsen Unconstitutional?, 46 Stan. L. Rev. 907 (1994) and this post on the Volokh Conspiracy).  So, in fact, is Senator Ken Salazar, who will be nominated as Secretary of the Interior, and possibly Representative Hilda Solis, who will be nominated as Secretary of Labor (although in the latter case this depends on whether there is another pay increase which occurs while she is serving in the 111th Congress, which began earlier today). 

            As Professor Tribe notes, it may very well be that no plaintiff will ever have standing to contest in court the constitutionality of any of these appointments.  However, Tribe asserts that President-elect Obama would not violate the Emoluments Clause and his constitutional oath merely because “the institutional limits of the Article III Judicial Branch would let him get away with a violation of that oath.”  Tribe contends that this would “hardly satisfy the constitutional conscience of a chief executive as dedicated to the to the Constitution as President-elect Obama, who reveres the Constitution as something more than the sum total of judicially enforceable restraints on government power.” 

            So President-elect Obama really cares about the Constitution, unlike some presidents that Tribe is too diplomatic to mention, and will comply with its restraints even when it is inconvenient to do so.  Of course, in this case it turns out, somewhat conveniently, that President-elect Obama interprets the Constitution to allow him to do what he wants to do, but I am sure that is just a happy coincidence.