BREAKING NEWS: Prop 8 Held Unconstitutional By Federal Appeals Court

The Ninth Circuit Court of Appeals has held that a California constitutional amendment that defines marriage in opposite-sex terms violates the Constitution.

Note: This is breaking news. I will have more analysis later today - once I can download the opinion and finish teaching classes!

Washington Times: Possibly "Illiterate" Obama Used "Naked Thuggery" to "Rape" the Constitution Like A "Suicide Bomber"

The title of this post is not inspired by a satirical article in The Onion.  Instead, it describes an op-ed written by Charles Hurt, a columnist for the Washington Times, a conservative newspaper.  By publishing Hurt's latest column, "President Obama's Thuggery," the Washington Times proves that it does not care about contemporary journalistic ethics.

Recess Appointments: A Brief Constitutional Analysis

Hurt's column is a racist rant that pretends to offer an analysis of President Obama's decision to make three recess appointments last week. The Constitution allows presidents to make recess appointments when the Senate is not in session and is unable to provide advice and consent. There is a legitimate constitutional debate over the legality of the recess appointments. Obama made the appointments when the Senate was in session. Accordingly, one could argue that his actions violate the Constitution.

On the other hand, it is clear that the Senate was only "in session" in a technical sense. Rather than actually meeting to discuss business, the Senate instead held multiple pro forma sessions. These sessions were designed specifically to block Obama from using his constitutional authority to make recess appointments. Ironically, the Democrats started using this subversive (and highly immature) practice during the Bush administration for the same purpose.

Legal observers who support Obama's decision argue that if Congress refused through subterfuge to offer advice and consent, the president could make the appointments on his own. The Constitution does not discuss the meaning of recess or session. Furthermore, it is possible that the Supreme Court would not intervene in this dispute. The Court could conclude that the matter presents a "political question" suitable for resolution by Congress and the President.

Racial Tirade

Hurt only discusses the recess flap for one fleeting moment. He devotes most of his analysis listing atrocities and dangers associated with Obama administration. Although Hurt's analysis is riddled with distortions, this is not its worst quality. Instead, Hurt's article is despicable because he uses graphically racist language to discuss Obama. The list below documents Hurt's racist rant. Decide for yourselves whether you consider this respectful journalism.

• Obama used the recess appointment "to utterly rape our most cherished Constitution"
  
• "Mr. Obama is now installing his henchmen to Senate-confirmed positions. . . ."
  
• Questioning whether anything could stop Obama "from simply 'recess appointing' thugs to the Supreme Court in order to uphold his socialist platform"
  
• Considering whether Obama "is learned, yet illiterate, which is entirely possible considering the perniciousness of affirmative action at places like Harvard Law School"
  
• "Obama has become our homegrown enemy. He shreds the Constitution with the unflinching calmness of a suicide bomber, uncaring that he is destroying the only system on Earth that could have given him the life and success he has enjoyed. . . ."

In the book The Color of Crime, Professor Katheryn Russell Brown of the University of Florida College of Law examines social stereotypes that subject black males to discrimination in the criminal justice system.  Russell says that collectively, these stereotypes construct individual black males as a criminalblackman (yes -- one word).

Russell's terminology accurately describes Hurt's treatment of Obama. Hurt depicts Obama as an illiterate rapist, thug, socialist, suicide bomber, domestic terrorist, and undeserving beneficiary of affirmative action.  That Hurt invokes racist imagery in his essay is beyond dispute. By publishing this rubbish that only pretends to offer pressing analysis, the Washington Times has discarded any lingering credibility that it has as a legitimate news source.

Governor Perry's Dangerous Ideas for the US Constitution

Texas Governor Rick Perry recently entered the race to become the GOP's 2012 presidential candidate. Although many early reports regarding Perry have focused on trivial issues like his "Texas Swagger," some media are now beginning to give him serious scrutiny.

Today, Chris Moody, a Yahoo News blogger, analyzes seven ways that Perry wants to change the Constitution. Perry set forth these ideas in his book: Fed Up! Our Fight to Save America from Washington. He also mentioned them during interviews and while campaigning. If implemented, Perry's ideas would dramatically curtail the exercise of individual rights and liberties. They would also dramatically restrain the ability of Congress to engage in sound fiscal policy.



Perry wants to make seven changes to the Constitution:

Abolish lifetime tenure for federal judges by amending Article III, Section I of the Constitution.



Congress should have the power to override Supreme Court decisions with a two-thirds vote.



Scrap the federal income tax by repealing the Sixteenth Amendment.



End the direct election of senators by repealing the Seventeenth Amendment.



Require the federal government to balance its budget every year.



The federal Constitution should define marriage as between one man and one woman in all 50 states.



Abortion should be made illegal throughout the country.

If You Want to Destroy Liberty -- Kill the Courts

Perry's ideas would imperil individual liberty. Particularly frightening are Perry's proposals for the Supreme Court. The Framers of the Constitution created the Supreme Court to act as a check against the other branches of the federal government -- and as a guardian against state governmental infringement of federal law. Perry would water-down the Court's important role in two ways. First, he would seek to eliminate lifetime tenure for judges. He would also seek to empower Congress to reverse Supreme Court rulings by a 2/3 vote.



Critics of judicial power often argue that the Court is antimajoritarian because federal judges have lifetime tenure. A lot of academic research has demonstrated that these fears are highly overstated. Regardless, lifetime tenure immunizes judges from retaliation by the political branches. If judges were subject to reappointment or -- even worse -- elections -- to keep their jobs, this would diminish the extent of their autonomy from political institutions.



Perry's proposal for a congressional override of Supreme Court decisions is also dangerous. Presently, Congress can reverse the Court's interpretation of statutes by a simple majority vote (it is unclear from Moody's post whether Perry knows this). The Court's rulings on the meaning of the Constitution, however, are final, unless the Court later reverses them --- or, unless "the people" amend the Constitution.

Congress can propose Constitutional amendments by a 2/3 vote, but 3/4 of the states must ratify the proposal. Perry would allow 2/3 of Congress to reverse the Court's interpretation of the Constitution without the involvement of the states. This proposal, which would make the Court vulnerable to the whim of Congress, would erode judicial autonomy that the Framers built into the Constitution.

Direct Curtailment of Individual Liberty

Several of Perry' other proposals more directly restrain individual rights. Perry, for example, favors constitutional amendments banning abortion and same-sex marriage. These are fairly standard Republican positions.



Perry, however, also favors a repeal of the Seventeenth Amendment, which allows for the election of US Senators by popular vote in each state. Recently, several other conservatives have advanced this proposal. The Seventeenth Amendment gives voters the right to elect Senators; previously state legislators had that power. The Seventeenth Amendment expanded the representation of the American people in Congress, and it gave voters more power to influence the actions of their representatives. Perry, like other conservatives, wants to take this power away from the people and give it back to state lawmakers. This would represent a serious erosion of individual political power.

Fiscal Nightmare



Perry's remaining proposals are fiscally unsound. First, he wants to amend the Constitution to prohibit Congress from taxing income. This proposal appeals to people who believe -- without any evidence -- that taxation has ruined the country. Perry's idea would make the notion of a functioning national government virtually impossible. A balanced budget amendment, which Perry also favors, would have a similarly disastrous impact on federal fiscal policy (see prior blog post).



Final Thoughts



I am pleased to see that some media have begun to scrutinize Perry. His Texas swagger -- whatever that is -- should not even occupy space in public discourse. It is unimportant.

Instead, the media needs to focus on Perry's ideas and proposals -- which he has detailed in a book and in numerous campaign speeches and interviews. Hopefully, Chris Moody's analysis of Perry's dangerous ideas for the Constitution will lead to even more analysis of his policy positions. This is not the time for Hee Haw journalism.

UPDATE

Chris Moody published the article scrutinizing Perry's views of the Constitution. This blog post has been amended to give attribution to Moody, rather than the Associated Press.

Silliness From Wall Street Journal: Editorial Demands Kagan Recuse Herself From Healthcare Litigation

A Wall Street Journal editorial demands that Elena Kagan recuse herself from lawsuits challenging the constitutionality of the healthcare reform legislation. The editors, however, lack a legal basis to demand that Kagan recuse herself.

The Senate cannot make this demand because this would violate the separation of powers. And while federal law might require that she recuse herself from cases in which she was directly involved as Solicitor General, she has already promised not to sit on those cases if she is confirmed.

The Wall Street Journal speculates that Kagan probably offered an opinion on the legality of the healthcare statute -- but, of course, the editors cannot prove this. Lacking any factual basis to argue for recusal, the editors argue that Kagan should recuse herself from cases challenging the legislation because they disagree with her answer to questions regarding the Commerce Clause (which is central to the constitutional issue).

Although Kagan's statements reflect current Supreme Court doctrine, the Wall Street Journal editors accuse her of incorrectly supporting an expansive view of the commerce power. Because they disagree with an expansive view of the Commerce Clause, they believe she should recuse herself from the healthcare litigation if it reaches the Court. According to the editors, her view (with which they disagree) proves she is partial:

We also think there are grounds for recusal based on her response during her Senate hearings on the substance of the state legal challenge. The Florida case boils down to whether Congress can compel individuals to buy health insurance under the Commerce Clause. Ms. Kagan danced around the history of Commerce Clause jurisprudence, but in one response to Senator Coburn she did betray a bias for a very expansive reading of Congress's power.

The Commerce Clause has "been interpreted to apply to regulation of any instruments or instrumentalities or channels of commerce," she said, "but it's also been applied to anything that would substantially affect interstate commerce." Anything? This is the core question in the Florida case. If she already believes that the Commerce Clause justifies anything that substantially affects interstate commerce, then she has all but prejudged the individual mandate question.

This is a baseless argument. In US v Lopez, one of the most important cases on the Commerce Clause, the Court held that Congress could "regulate those activities having a substantial relation to interstate commerce . . . i.e., those activities that substantially affect interstate commerce" (emphasis added). This is essentially what Kagan stated during the hearings.

While language in some cases suggests that "activities" only include "economic" activity, the Court has not indicated that this is a requirement. In Gonzales v. Raich, for example, the Court upheld enforcement of the Controlled Substances Act against an individual who consumed homegrown marijuana for medicinal purposes. The individual did not obtain marijuana on the open market. Nevertheless, the Court held that in the aggregate, homegrown marijuana could have a substantial effect on the market for marijuana (making it more available -- contrary to the purpose of the federal statute). Justice Scalia concurred and argued that so long as the activity being regulated is part of a broader statute dealing with interstate commerce, then Congress can regulate the activity pursuant to its Commerce Clause authority. Even one of the most conservative justices has embraced Kagan's view of the Commerce Clause.

The Wall Street Journal editors' demand for Kagan to recuse herself is blatantly political and without merit. Finally, it seems like the editors have conceded the point that the mandate has a substantial relation to interstate commerce. Perhaps the Supreme Court will agree.

UPDATE: Media Matters has published an extensive essay that criticizes the Wall Street Journal editorial.

UPDATE II: Think Progress also has a good article on this subject.

Absolute Lunacy From New Jersey: Appeals Court Rules That State Must Allow Recall Petition to Proceed

A New Jersey Appeals Court has ruled that state election officials must allow a recall petition of Senator Menedez to proceed.  This is a baseless ruling.  The best thing the court could say about the constitutional question is the following indecisive point:

To summarize, we neither declare the recall provision in our State Constitution as applied to a United States Senator definitively valid or invalid (emphasis added).

I have discussed this matter before (see here). The Supreme Court has repeatedly held that neither Congress nor states can alter the requirements and conditions for members of Congress. The Court has precluded Congress from refusing to sit duly elected members due to "unethical" conduct. The Court has also precluded states from establishing term limits for members of Congress.

The recall is a more invasive step than a term limit. Furthermore, the Framers considered but refused to adapt language that would have allowed for the recall of members of Congress. The only method the Constitution provides for "recall" is the expulsion process. That power, however, rests with Congress alone -- not the states.

The New Jersey court discusses this abundant precedent and concludes that it provides a strong argument against the constitutionality of the New Jersey recall provision. Nevertheless, the court morphs into a first-year law student and pretends that the absence of language in the Constitution or prior cases explicitly mentioning "recall" means that the question remains undecided and that it cannot invalidate a state constitutional ruling without definitive authority.

Most shockingly, the New Jersey court holds that the absence of precise language in the Constitution on this issue could mean that states retain the power to recall members of Congress. This is the exact argument that the Supreme Court rejected in the term limits ruling. The New Jersey court, however, cites to Justice Thomas' dissent in the term limits case to support this proposition. So, the New Jersey court actually behaved in a manner that is less sophisticated than first-year law students. They know better (at least my students) than to base an argument on a rejected point of law. Hopefully, the New Jersey Supreme Court will reverse this stupid ruling. Stupid is the best word I can use to describe it.

Tea Party Attempting Unconstitutional "Recall" of Democratic Senators

As much as Tea Party members whine that Congress is violating the Constitution, one would expect the group not to advocate clearly unconstitutional measures itself. Well, this logic has not influenced the Tea Party movement.

According to the Washington Times, the Tea Party movement is trying to "recall" several Democratic senators before their terms in office expire. The Washington Times reports that several states have "recall" measures that cover federal officeholders. There is a major problem with these laws: they violate the Constitution.

As the Supreme Court held in Powell v. McCormack, the Constitution establishes all of the requirements for members of the House and Senate. In Powell, the Court held that Congress could not alter those requirements. The House tried to block Adam Clayton Powell from taking his House seat on the grounds that he had engaged in financial impropriety. The Constitution, however, did not allow the House to block Powell, because he had met all of the requirements of office listed in the Constitution.

In US Term Limits v. Thornton, the Supreme Court extended Powell and held that states lacked the authority to alter the requirements of members of Congress as well. Thornton involved a challenge to an Arkansas law that established term limits for members of the House and Senate. The Court held that the law violated the Constitution. There is nothing unique about a "recall" statute that would make it permissible.

Nothing in the Constitution permits the recall of members of Congress -- although the Constitution does allow each house to "expel" a member. The only power that voters have over members of Congress comes through the normal electoral process. That process takes place every six years for members of the Senate and every two years for members of the House. The Tea Party crowd will have to wait until the targeted senators complete their terms. Yes -- the law applies to everyone.

Maryland Teacher Called Police to Remove Student From Class for Refusing to Recite Pledge of Allegiance

In January, a Maryland school teacher called two police officers to escort a student from her classroom because the 13-year-old exercised her constitutional rights and refused to stand and recite the Pledge of Allegiance. The student also refused to stand for the Pledge of Allegiance on the previous day of school.

The teacher's attempt to force the student to recite the Pledge of Allegiance violates the constitutional doctrine stated by the Supreme Court in the 1943 ruling West Virginia Board of Education v. Barnette. In Barnette, the Court overruled prior caselaw and held that forcing students to salute the flag and recite the Pledge of Allegiance "transcends constitutional limitations on [the school officials'] power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control" (emphasis added).

The teacher's conduct also violates state policy. A Maryland student handbook states that: "You cannot be required to say a pledge, sing an anthem, or take part in patriotic exercises. No one will be permitted to intentionally embarrass you if you choose not to participate" (emphasis added). The other students in the class mocked the defiant student as police escorted her away from the classroom.

On the first day that the student refused to recite the Pledge of Allegiance, the teacher yelled at her. Now, the teacher must apologize -- thanks to a settlement negotiated by the ACLU.

More South Carolina Shenanigans: Law Would Prohibit Use of U.S. Dollars in the State

South Carolina is one of the nation's poorest states. Many of its citizens are struggling to survive with even less than they had before the global economic crisis. Instead of working on concrete solutions for the people of South Carolina, several of the state's "leaders" continue to engage in shenanigans.

In June 2009, Governor Mark Sanford vanished from the state for a week to consummate an adulterous relationship in Argentina. But Sanford became infamous before this escapade when he rejected stimulus money that his state desperately needed to provide unemployment and welfare benefits to needy persons and to avoid deep cuts in the state's already troubled public school system. The legislature reversed his horrific decision.

To make matters worse, Lieutenant Governor Andre Bauer recently analogized providing assistance to poor people to giving food to "stray animals." Bauer said: "You're facilitating the problem if you give an animal or a person ample food supply. They will reproduce, especially ones that don't think too much further than that." Translation: Let them die.

Proposed Law Would Reject Dollar as Legal Tender
Now, State Representative Mike Pitts, a fourth-term Republican, is the latest South Carolina politician to make the wall of shame. Pitts has introduced a bill that would ban the use of U.S. dollars in the state. Instead, commerce in the state would require silver or gold coins. The Palmetto Scoop explains the "logic" behind the measure:

Pitts said the intent of the bill is to give South Carolina the ability to “function through gold and silver coinage” and give the state a “base of currency” in the event of a complete implosion of the U.S. economic system.

“I’m not one to cry ‘chicken little,’ but if our federal government keeps spending at the rate we’re spending I don’t see any other outcome than the collapse of the economic system. . . .

“To me, something I can hold tangible in my hand I can put more value in, especially under the current rate of inflation. . . In the case of total economic collapse, a barter tool is going to be worth a whole lot more value than paper with ink on it.”

Pitts has the right to criticize the nation's economic policy. His effort to pass this measure, however, is a colossal waste of state resources.

The Measure Would Violate the Constitution
The Constitution endows Congress with the power to "coin money [and] regulate the Value thereof." States do not retain the power to issue their own currencies; accordingly the 10th Amendment would not legitimize the measure.

Pursuant to its explicit constitutional authority, Congress has made U.S. currency the "legal tender for all debts, public charges, taxes, and dues." The federal law would trump the South Carolina measure due to the supremacy of federal law (established by the Constitution).

By contrast, the Articles of Confederation, which the nation scrapped because it was woefully inadequate as a governing document, prohibited Congress from coining money unless 9 of the then 13 states consented. Under the Articles of Confederation, states retained the power to create their own currency. This archaic system, which prevented the formation of a national economy, no longer exists.

Confronted with the reality that his proposal would violate the Constitution, Pitts comes across as a Tea Party-conspiracy theorist and accuses the federal government of "consistently" violating the Constitution (two "wrongs" make a right). While Pitts makes nonspecific assertions that the federal government perpetually exceeds the scope of its powers, his proposal would violate explicit provisions of the Constitution and federal statutory law.

Final Take
Rather than wasting time proposing blatantly unconstitutional legislation, Pitts should endeavor to do something useful for the people of his state. This is the type of conduct that should enrage voters. It is a wasteful stunt and nothing more. Citizens of South Carolina deserve better representation than this.

The Mount Vernon Manifesto: More Rightwing Hysteria

Yesterday, the economist Thomas Sowell echoed the rallying cry of Tea Party participants in an essay warning readers that "politicians" (i.e., Democrats) are robbing them of their freedom. Sowell, however, fails to identity any actual rights that politicians have stolen from the public.

Today, a group of conservatives has released a document called the "Mount Vernon Manifesto," which similarly asserts that the federal government is robbing people of individual liberty. The document, however, fails to specify any particular right that the government has infringed.

The document also contends that the federal government has exceeded the scope of its constitutionally delegated powers. The document, however, does not provide even one example of an unconstitutional exercise of federal authority.

Vague Allegations of Rights Infringement
Rather than providing specific examples of rights infringement, the Mount Vernon Manifesto argues in very vague and unsubstantiated terms that the government has improperly constrained individual liberty. This flaw makes the document read like a paranoid conspiracy theory, rather than a credible statement about the status of constitutional rights.

The document borrows from the Declaration of Independence as a blueprint for its analysis of liberty. In so doing, the document purportedly "asserts self-evident truths based on the laws of nature and nature’s God. It defends life, liberty and the pursuit of happiness. It traces authority to the consent of the governed. It recognizes man’s self-interest but also his capacity for virtue."

Neither the Declaration of Independence nor the conservative manifesto, however, supplies a concrete listing of specific liberty interests. Similarly, the Mount Vernon statement does not demonstrate how the government has denied such rights.

The Mount Vernon Manifesto Is Not Even Inherently "Conservative"
Although the Mount Vernon Manifesto repeatedly claims to advance conservative values, the document is not even inherently conservative. The substance of "self-evident" liberty interests will depend upon the perspective of the beholder.

Liberals believe that "liberty" and the "pursuit of happiness" extend to sexual freedom, autonomy over reproductive choices, and even to imposing affirmative obligations on the government to make liberty meaningfully accessible to all citizens. Social conservatives, however, do not believe in these rights. In other words, the same (ambiguous) text in the Constitution and Declaration of Independence can support a host of different values -- liberal or conservative.

This observation applies with equal force to the portion of the document that advocates limited government. Since the ratification of the Constitution, all commentators have agreed that the document limits the power of the federal government. The precise boundaries of those limits, however, have been subject to vigorous debate throughout American history.

Alexander Hamilton and Thomas Jefferson did not see eye to eye on this subject. Both intellectual camps that they represented made reasonable appeals to history, tradition, and to the text of the Constitution to support their arguments.

The Mount Vernon Manifesto, however, treats history in completely uncomplicated terms. It assumes -- incorrectly, that the Framers viewed the boundaries of federal power and individual rights in unified terms, but that modern politicians have corrupted the system of government. This is a deep and fatal inaccuracy.

Final Take
The Mount Vernon Manifesto is clearly a political document. It is not designed to approach U.S. history and the Constitution in the nuanced terms that an honest portrayal requires. The failure of the documents' authors to specify concrete governmental invasions of liberty or excessive and unconstitutional use of governmental power renders the document meaningless as a serious statement on the status of government and history. Apparently, the authors are in pursuit of other agendas.

UPDATE
At least one commentator agrees with my conclusion that the document is "meaningless" as a serious document regarding government policies and liberty. Daniel Larison, writing for the American Conservative Magazine, observes that:

The statement itself is so anodyne, unobjectionable and filled with stock phrases that no one to the right of Olympia Snowe could have that much to say against it. The statement was written specifically to be as inclusive, vague and undemanding as possible. It was done this way so that every movement faction could accept it without complaint. It reads like remedial instruction on civics from the Claremont Institute, and the actual politics of most of the signatories have about as much to do with “the Founding” as does Claremont’s distorted understanding of the same. If I thought it worth the time, I might pick apart some confused ideas about “the conservatism of the Declaration,” but as far as conventional movement conservative rhetoric goes this is unremarkable stuff.

There is no danger here of an unreasonable “purity test.” The standard being set by this statement is so low that anyone in the conservative movement could claim to agree with everything in the document and still merrily go about his way violating both the letter and the spirit of the principles to which he supposedly just subscribed. The statement is so generic and so divorced from any contemporary policy debate that everyone from Marc Thiessen to Ron Paul could endorse it without the endorsement having any effect on their current policy views. Any consensus this broad and unrelated to actual policy is pretty meaningless (emphasis added).

UPDATE II
Jesse Walker of Reason.com argues that:

[T]he manifesto's rhetoric. . .is so all-inclusive and platitudinous as to be practically meaningless. Even the plank on foreign policy is carefully phrased so that both hawks and doves can embrace it: The text supports "advancing freedom and opposing tyranny in the world" while adding that we should "prudently" consider "what we can and should do to that end," a resolution that depending on your concept of prudence could entail anything from cutting a few dictators' share of the foreign aid budget to invading China (emphasis added).

Dan Quayle: Passing Healthcare Bill With Simple Majority Is Unconstitutional

Former Vice President Dan Quayle has projected himself in contemporary political debates by offering some interesting constitutional interpretation. During an appearance on Fox News, Quayle blasted the idea of Democrats using the reconciliation process to pass healthcare reform. This filibuster-free route would allow for passage of the bill in the Senate with a simple majority -- or 51 votes. Quayle says that doing so would violate the Constitution:

They're gonna go to budget reconciliation, which I believe would set a very bad precedent, because essentially -- if they could do it, and I don't know if they can do it, but if they could do it -- what you have done, effectively, is to take away the filibuster in the United States Senate. . . . So, therefore, you have 51 votes in the House and 51 votes in the Senate. That is not what our Founding Fathers had in mind. That is not the constitutional process (emphasis added).

Reality
Article I of the Constitution establishes and delegates power to Congress. Article I is silent regarding how many votes a particular bill must receive before it is sent to the President and with respect to the procedural rules for each chamber. Instead, the Constitution generally allows each chamber to determine its own rules (with some very specific exceptions).

Nevertheless, Article I clearly describes the actions of Congress that require a supermajority. For example, overriding a veto requires a 2/3 vote of each house. Also, a decision to convict the President during the impeachment process requires a 2/3 vote of the Senate. The Constitution, however, does not create the filibuster, even though it has a long history. The filibuster is a Senate rule -- not a constitutional mandate.

Finally, it is unclear where Quayle gets the "51 votes in the House" figure. A simple majority of the House consists of at least 218 votes.

The Onion Eerily Accurate: Lampoons Lunatic Rightwing Arguments About the Constitution

The Onion continues to outshine the mainstream media. While the media passively report the silliest arguments rightwingers advance regarding the Constitution, The Onion has actually challenged this rubbish. The article, Area Man Passionate Defender Of What He Imagines Constitution To Be, responds to many of the paranoid and baseless arguments that the extreme right has made since Obama became president. Here is a snip:

According to Mortensen—an otherwise mild-mannered husband, father, and small-business owner—the most serious threat to his fanciful version of the 222-year-old Constitution is the attempt by far-left "traitors" to strip it of its religious foundation.

"Right there in the preamble, the authors make their priorities clear: 'one nation under God,'" said Mortensen, attributing to the Constitution a line from the Pledge of Allegiance, which itself did not include any reference to a deity until 1954. "Well, there's a reason they put that right at the top."

"Men like Madison and Jefferson were moved by the ideals of Christianity, and wanted the United States to reflect those values as a Christian nation," continued Mortensen, referring to the "Father of the Constitution," James Madison, considered by many historians to be an atheist, and Thomas Jefferson, an Enlightenment-era thinker who rejected the divinity of Christ and was in France at the time the document was written. "The words on the page speak for themselves."

According to sources who have read the nation's charter, the U.S. Constitution and its 27 amendments do not contain the word "God" or "Christ."

Mortensen said his admiration for the loose assemblage of vague half-notions he calls the Constitution has only grown over time. He believes that each detail he has pulled from thin air—from prohibitions on sodomy and flag-burning, to mandatory crackdowns on immigrants, to the right of citizens not to have their hard-earned income confiscated in the form of taxes—has contributed to making it the best framework for governance "since the Ten Commandments."

"And let's not forget that when the Constitution was ratified it brought freedom to every single American," Mortensen said.

Great stuff!

Very Hot Air From "Hot Air" -- Regarding Healthcare Reform

Ed Morrissey of Hot Air has pumped out an essay defending the rightwing's largely unsuccessful effort to convince any reputable constitutional law scholar (on the right or left) that proposed healthcare reform would violate the Constitution. Morrissey's essay takes issue with my recent post that applauds Nancy Pelosi for dismissing a CNSNews reporter's question on the subject. Morrissey makes several arguments. I find none of them persuasive.

Conservatives Have Demanded "Absurdly Specific" Language Justifying Healthcare Reform
Morrissey says that "our argument has never been that Congress cannot pass laws, or that Congress cannot pass laws without some absurdly specific mention in the Constitution." This is disingenuous. On September 22, Hot Air posted a viral video (via CNSNews) that shows a high school "government" teacher pleading with Mark Warner for specific language in the Constitution authorizing the government to "run healthcare." Certainly, a citation to Article I, or even more specifically to the Commerce Clause or to the taxation and spending powers, would not have alleviated her anxiety. Nor would it have satisfied Hot Air and CNSNews.

Furthermore, the CNSNews article that served as the basis for the Hot Air piece ominously reported that Warner said "there is 'no place in the Constitution' that mentions health care. . . ." If conservatives are, as Morrissey claims, uninterested in absurdly specific text, then Warner's statement is not newsworthy. Clearly, the Constitution does not mention health care (or education, telephones, etc.). This silence, however, does not deprive Congress of any authority over the industry.

In addition, Morrissey himself has argued that unless the Constitution "covers" a power, then Congress must "butt out." He made this assertion in response to Representative Shea-Porter's rejection of a strict reading of the Constitution that would limit Congress to the exact wording of the text. If Morrissey is not demanding exact language regarding healthcare, then he should not have found Shea-Porter's argument worthy of discussion. Although Morrissey has been more flexible at times, he has (intentionally or unintentionally) pushed a method of constitutional interpretation that he now labels "absurd."

The Framers Did Not Know About Airplanes
Morrissey also takes issue with my argument that demanding specific text on a subject would nullify the government's authority to create the Air Force. Morrissey, of course, does not point to language in the Constitution that refers to the "Air Force" or even to airplanes. Instead, he cites to more generalized language empowering Congress to provide for the "common defence." This, however, is the exact same type of constitutional interpretation that should guide debates over the constitutionality of healthcare reform. Interstate commerce, taxation, spending, and "general welfare" come to mind as places to anchor healthcare reform. Conservatives, however, have demanded precise language from liberals, while embracing generalized provisions to justify policies they favor.

Furthermore, Morrissey completely ignores more difficult questions that the strict approach implicates. For example, he specifically evades the question of Medicare's constitutionality, and he is absolutely silent regarding federal bans on partial-birth abortion, crack cocaine, acts of terrorism and other issues my essay raises. I do not believe these laws necessarily fall outside of the scope of federal authority, but I have not approached the Constitution from the constrained perspective that conservatives have advanced.

The Tenth Amendment Does Not Make Healthcare Reform Unconstitutional
Finally, Morrissey's interpretation of the Tenth Amendment -- which other conservatives seem to share -- is also flawed. In a prior essay, Morrissey argues that:

The Constitution sets their power and circumscribes it rather clearly in Article I, Section 8 and Section 9 of the Constitution. The Tenth Amendment reserves all other powers to the states or to the people, underscoring the explicit limitation on Congressional power. . . .Therefore, when the Constitution does not “cover” a subject, it explicitly and expressly intends for Congress and the federal government to butt out.

The Tenth Amendment is a truism: every power that is not delegated to the federal government is retained by the states. The provision, however, does not tell us what is in fact delegated. Nor does it state that the text of Article I expressly "covers" the entirety of permissible federal authority.

Morrissey is stuck in the era of the repudiated and supplanted Articles of Confederation. Anyone who has read McCulloch v. Maryland should know that the Court rejected the notion that unless the power was "expressly" mentioned in Article I, then Congress lacked authority; this was the law under the Articles of Confederation. Under the Constitution, Congress (as Morrissey seems to concede) has implied powers. Accordingly, the Tenth Amendment does not provide any useful information about this subject.

Pelosi Was Right to Dismiss Question Regarding Constitutionality of Healthcare Reform

Updated Thread: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

________________________________________________
Today, a "reporter" from CNSNews.Com, a conservative blog, asked Nancy Pelosi to point out language in the Constitution that specifically authorizes Congress to mandate that individuals purchase health insurance. Pelosi dismissed the question by responding, "Are you serious?" Pelosi's response was absolutely warranted.

Conservatives have tried unsuccessfully to argue that the Constitution does not permit various aspects of Democratic healthcare reform. Liberal and conservative Constitutional Law scholars have rejected these arguments, but people continue to assert them.

I am particularly perplexed/annoyed by the conservative assumption that unless explicit text directly authorizes a legislative enactment, then Congress necessarily lacks the power to pass the law. This is a extraordinarily foolish and unsupportable view of the Constitution. The Constitution is written in general terms; only a few provisions define individual rights and governmental powers with precision. To make this point more concrete, I quote from a previous essay on the subject:

It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

In addition to the above observations, a method of constitutional interpretation that demands specific and unambiguous textual support would mean that the following federal rights or powers could not exist: the right to pray during school or to be free of racial quotas in college admissions; and the power to ban child pornography on the Internet; "drill drill drill" for oil in Alaska; force air passengers to submit to safety screening; and to criminalize acts of terrorism. The Constitution does not specifically mention any of these things.

I am happy to debate the meaning of the Constitution -- but, please: let's retire ridiculous and unserious arguments.

UPDATE: Hot Air chimes in, and I respond: Very Hot Air From "Hot Air" -- Regarding Healthcare Reform.

Erwin Chemerinsky on Healthcare Reform: It's Constitutional

Erwin Chemerinsky - Dean of UC Irvine Law School and Professor of Constitutional Law -- and I are on the same page regarding healthcare reform. In a Los Angeles Times op-ed, Chermerinsky argues that Congress has the authority to mandate coverage. I have made the same argument (see here and here).

By contrast, David Rivkin and Lee Casey, two conservative law firm partners, have made multiple arguments challenging the constitutionality of a federal mandate. I have not found any commentary by Constitutional Law scholars which contends that the mandate would violate the Constitution.

Still Wrong: David Rivkin and Lee Casey

Conservative lawyers David Rivkin and Lee Casey are at it again -- arguing that a healthcare mandate would violate the Constitution. Last month, the duo wrote an op-ed in the Washington Post that made the same arguments. That essay failed to take hold among among constitutional law theorists. Now, they are trying again. Unfortunately, they are still wrong.

I have addressed this issue in two blog essays:

Is Healthcare Reform "Unconstitutional"? No -- Why Rivkin and Casey Are Wrong

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

Conservative Jonathan Adler has reiterated his disagreement as well:

Is Obama Care Unconstitutional? - Part Deux.

More Hot Air from "Hot Air": Implies Healthcare Reform Unconstitutional

No serious Constitutional Law scholar has argued that healthcare reform (in any of the currently proposed formats) is unconstitutional. Some conservative commentators, however, have tried unsuccessfully to float the argument.

Yes, Virginia, Healthcare Reform Is Constitutional
On August 22, David Rivkin Jr. and Lee A. Casey, two rightwing attorneys, argued in the Washington Post, that healthcare reform violated the Constitution. Their argument, however, only captured the hearts of conservatives desperate to find a good good reason to oppose healing the sick.

Today, the conservative blog Hot Air tried to revive the argument by posting footage of Senator Mark Warner explaining why healthcare reform is constitutional. Although the video link no longer works, the summary by Hot Air states that Warner cites to the Commerce Power as authority for healthcare reform. This is exactly correct, but I would add the Taxation and Spending Powers as well. I have thoroughly analyzed this issue in a prior blog post (and in the comments section to that post). Even conservative Constitutional Law professors have made similar arguments (see the post I linked).

Absurdity of the Question
It is absolutely absurd to ask whether the constitution specifically or explicitly allows Congress to regulate or reform healthcare. The Constitution speaks broadly and ambiguously. Only a few provisions are specific and beyond dispute (like the age requirement for presidents and members of Congress).

The Constitution does not specifically or explicitly authorize the creation of the Air Force or Medicare, nor does it discuss the federal prosecution of crack cocaine possession. And the "Framers" certainly did not specifically contemplate airplanes, prescription drug and hospital plans for seniors, or crack cocaine because these things were not realities when they wrote the Constitution.

If conservatives only believe Congress can regulate things that are explicitly mentioned in the actual text of the Constitution, then they should essentially advocate the abolition of the federal government. At a minimum, they should seek the immediate repeal of laws banning partial-birth abortion and kidnapping; the Constitution does not mention children or abortion.

Also, as many students of high school and college civics classes know, Article I of the Constitution contains the "necessary and proper" clause, which endows Congress with unenumerated powers that are needed to carry out its expressly delegated powers. In the very first case interpreting this provision (McCulloch v. Maryland), the Supreme Court rejected the narrow interpretation offered by anti-federalists.

Many of today's conservatives pretend that the Necessary and Proper Clause does not exist or that courts can only interpret it conservatively. Nothing in the history of the clause or the Court's interpretation of it compels an exclusively narrow interpretation.

Finally, I find it ironic that the GOP's so-called Bill of Rights for Seniors pretends to offer protection for Medicare, while conservatives have repeatedly asserted that healthcare reform violates the Constitution. If Congress lacks the power to pass healthcare reform, then it probably lacks the power to create Medicare, which conservatives claim to support. The inconsistencies are absolutely dizzying.

The Audacity of Hypocrisy: Mike Huckabee Says Appointing "Maria" Sotomayor Will Lead to an "Extreme Court"

I will assume that Mike Huckabee meant to say "Sonia," rather than "Maria," in the original version of his diatribe condemning Obama's decision to nominate Sonia Sotomayor as a Supreme Court Justice. But it is really difficult to escape the irony of Huckabee calling Sotomayor an extremist.

Huckabee blasts Obama for picking Sotomayor, arguing that:

Sotomayor comes from the far left and will likely leave us with something akin to the "Extreme Court" that could mark a major shift. The notion that appellate court decisions are to be interpreted by the "feelings" of the judge is a direct affront of the basic premise of our judicial system that is supposed to apply the law without personal emotion. If she is confirmed, then we need to take the blindfold off Lady Justice.

Oh, the melodrama! I do not accept Huckabee's characterization of Sotomayor's judicial philosophy. Nevertheless, I will hold aside my objections in order to focus on Minister Huckabee's deep hypocrisy.

Huckabee claims that appointing Sotomayor will bring bias and extremism to the Court. But his own views of the Constitution are far more dangerous and unjustifiable than anything in Sotomayor's background. During the 2008 Republican primaries, Huckabee made an interesting argument about the Constitution. He said that it should be amended to comply with "God's standards":

[Some of my opponents] do not want to change the Constitution, but I believe it's a lot easier to change the constitution than it would be to change the word of the living God, and that's what we need to do is to amend the Constitution so it's in God's standards rather than try to change God's standards. . . .

Huckabee has the audacity to call Sotomayor an extremist, but he wants to undo over two centuries of constitutional law that precludes the establishment of religion. I will take Sotomayor's "empathy" and proven record of accomplishment over Huckabee's desire to amend the Constitution in order to impose his view of "God's standards" upon the rest of the country. As my colleague Professor Jamie Raskin so aptly stated, replying to a fellow Maryland State Senator who invoked the Bible in order to oppose same-sex marriage:

"People place their hand on the Bible and swear to uphold the Constitution. They don't put their hand on the Constitution and swear to uphold the Bible."

Huckabee could learn a lot from Raskin.

Professor Balkin Defends Constitutionality of Bonus Tax

Professor Jack Balkin has summarily rejected most of the prevailing constitutional arguments against the House of Representatives measure that would tax bonuses received by AIG executives and other TARP participants. The five most prevalent arguments include that the tax would violate the: 1. Due Process Clause of the Fifth Amendment; 2. Takings Clause; 3. Ex Post Facto Clause; 4. Contracts Clause; and 5. Bill of Attainder Clause. I agree with Balkin that 2, 3, and 4 are not relevant, but his due process and bill of attainder analysis is too swift.

Due Process
With respect to the due process argument, I agree with Balkin that a reviewing court would likely consider whether the measure is "rationally related to a legitimate government interest." Balkin argues that Congress can legitimately seek to avoid "extraordinary rents" to TARP participants and their employees and to curb "improper incentives and moral hazard in subsidized companies and their employees."

Assuming that these interests are indeed legitimate, the due process problem arises because in February, Congress explicitly exempted AIG's bonus payments from legislation that regulates compensation and bonus practices of TARP recipients. Although the measure would have effectively banned the controversial bonus payments, Congress gave the provision prospective, rather than retroactive application.

I would normally agree with Balkin that courts should not second-guess Congress under ordinary rational basis review. But AIG acted with explicit legal authority when it paid the bonuses. Neither the original version of TARP nor the regulations promulgated by the Treasury Department in the Bush and Obama administrations bans the bonuses. Congress recently enacted a measure that would have banned the bonuses, but it does not apply to AIG. Apparently, the Treasury Department requested that the restrictions not apply retroactively, and Congress agreed.

Now, Congress is trying to direct the Treasury Department to change course and subject the bonuses it only recently voted to exempt from regulation to an almost 100% tax. Even if these facts do not lead 5 or more Supreme Court Justices to conclude that the law violates the Due Process Clause, the issue strikes me as being a bit more complicated than Balkin's analysis suggests.

Bill of Attainder
Balkin's analysis of the bill of attainder issue is too abstracted and divorced from the factual context in which the tax proposal arises. Balkin dismisses the bill of attainder argument because the law does not "single out" individuals and it applies retrospectively and prospectively:

First, the tax defines the class to which it applies to an abstractly defined group rather than naming particular individuals. It applies to persons working for enterprises that have received emergency government subsidy; it is not aimed at particular companies or specific employees. Second, the tax is for a regulatory purpose, as described above, and not for a punitive purpose. Preventing misuse of government funds, limiting bad incentives, and avoiding moral hazard are regulatory purposes, not punitive purposes. The fact that isolated members of Congress may have expressed an impermissible punitive or retributive purpose does not mean that the tax violates the Constitution if the text of the bill on its face has an overtly regulatory purpose. Third, the tax is both prospective and retrospective in its targets, which is consistent with a regulatory as opposed to a punitive purpose.

If the factors Balkin lists are the only ones a court would consider in a bill of attainder analysis, I would argue that they could weigh against the tax, and not necessarily for it. Balkin's argument that the tax does not target AIG recipients and that it applies to an "abstractly defined group" requires us to suspend reality. Even though the House measure is written in general terms, the motivation behind the measure is very clear: The House seeks to "punish" AIG and its executives by recouping almost 100% of the bonus payments.

Balkin's argument would legitimize the type of formalistic arguments that litigants often make when they want to avoid the impact of and impulse for their actions. Formalism has been invoked to justify gross violations of due process and equality (such as segregation and unequal application of the criminal law). Balkin's abstracted analysis of the bill of attainder provision comes dangerously close to legitimizing the very type of formalistic arguments that routinely mask and excuse injurious and unfair governmental action.

So When Exactly Does "Change" Arrive? Senate Battle Over Burris and Blagojevich Offers "More of the Same"!

For over a year now, virtually every candidate for elected office has appropriated Obama's highly successful "change" mantra. But if you have taken just a few moments out your holiday festivities to read the latest political developments, Washington, DC will remain the same absent some catastrophic event.

What Happened to the Economy, Health Care, the Wars, and Civil Rights?
Despite all of the urgent problems the country needs to address, Senate Democrats apparently believe that their first major constitutional, political and media battle in 2009 should center around a two-year, filler Senate position. And as I write this essay, Republicans have just threatened to play the same game and block comedian Al Franken from representing Minnesota in the Senate -- despite his apparent 39-point victory over GOP incumbent Norm Coleman.

With such frivolity unfolding, our trustworthy media will undoubtedly flock like lemmings to Capitol Hill where they will remain planted and reporting every single development or rumored development in the messy drama. [Editor's Note: Despite the new Franken-Coleman developments, for the sake of space and my own sanity and free time, this essay focuses exclusively on the Blagojevich-Burris-Reid affair.]

Blagojevich Performing His Obligations As Governor
The 17th Amendment authorizes states to conduct Senate elections (Article I addresses the House) and to fill vacancies when they arise. In the event of a vacancy, the Constitution gives states the option of holding a special election or allowing a governor to choose the replacement. Illinois law allows the governor to fill Senate vacancies, and the current governor has done so, by naming Roland Burris to occupy Obama's vacated seat.

Not so fast, say Senate Democrats. Democrats refuse to allow Burris to occupy the seat because a federal prosecutor has filed a criminal complaint against Illinois Governor Rod Blagojevich, accusing him, in part, of conspiring to profit from public office by selling the vacated seat.

Many constitutional law scholars (myself included) believe that the weight of historical evidence, constitutional text, and Court doctrine deny the Senate the authority to veto Blagojevich at will. Nevertheless, Harry Reid, the Senate Majority Leader, says that the criminal charges place a "taint" over the selection process that renders any appointment by Blagojevich illegitimate, which in turn empowers the Senate to disregard Burris or any other candidate the governor had selected. I'm not buying this argument -- at all.

Legally, Governor Blagojevich's Position Remains Unaltered
Despite the filing of criminal charges against Blagojevich, his role as governor has not changed. Blagojevich has not been convicted or even indicted, and even if he had been, this alone would not effectuate his removal from office.

Also, the Illinois legislature declined to deprive Blagojevich of the power to fill the vacancy -- a move that, if successful, would have prevented the current conflict. Instead, the Attorney General asked the Illinois Supreme Court to declare Blagojevich incompetent to serve -- in other words, to conduct an undemocratic judicial impeachment of the governor. The court, however, refused to do so. Meanwhile, impeachment proceedings have progressed at a snail's pace.

To make matters worse, the prosecutor has announced that he needs an additional three months to prepare a case against the governor, but he has requested that the impeachment panel refrain from taking testimony from alleged candidates (or their agents) with whom Blagojevich allegedly tried to make a deal. Due process, however, requires that material witnesses participate in fact-finding proceedings so that the accused can confront them and factfinders can develop a reliable record.

If the Illinois impeachment panel progresses without testimony from material witnesses, then its conception of due process will rival that of the outgoing Bush administration. Nonetheless, the panel has now promised to deliver a "quickie" impeachment with results by as early as next week.

The impeachment panel's promise reduces to simple equation: Withholding necessary witnesses PLUS steamrolling the proceedings EQUALS a denial of procedural fairness. With liberals promising to conduct rapid, outcome-already-determined impeachment proceedings without testimony from material witnesses change has not arrived, certainly not in Illinois -- the cradle of change.

Reid's "Taint" Argument Is Tainted
Reid and his supporters argue that the Senate must exclude any candidate Blagojevich selects because the criminal complaint taints the selection process. But the "taint" argument does not hold up to scrutiny. First, "taint" is such a broad and amorphous concept that it could support a Senate veto under an infinite number of scenarios, which would effectively obliterate the 17th Amendment's framework, which authorizes states to fill Senate vacancies.

That taint argument also assumes wrongdoing by Blagojevich simply because a prosecutor accused him of committing a crime. Personally, we might "believe" that Blagojevich is guilty of a crime, but a criminal complaint is simply a set of allegations -- not facts.

The constitution that I teach mandates that prosecutors prove allegations against defendants -- not that defendants prove their innocence. In other words, our constitutional culture assumes the innocence of the accused. Court doctrine treats the presumption of innocence as an essential element of a system of justice and ordered liberty.

Senate Democrats, however, have discarded the presumption of innocence and are using the criminal complaint to disempower not only Blagojevich, but any candidate he selects for the position. But unless Burris bought the seat, the taint argument simply cannot apply.

Reid nonetheless insists that the Senate must reject any person that Blagojevich selects. This blanket assertion -- made without any factfinding whatsoever -- undermines Reid's credibility and worsens the due process deprivation by treating with suspicion every potential appointee, regardless of whether a legitimate basis for linking that person to impropriety exists. Because Reid's argument undermines basic constitutional principles that require procedural fairness, his threat to exclude Burris in order to prevent taint is itself tainted.

Business As Usual in Washington, DC
For those of you who feared that change would devastate Washington, be not afraid. If you still dream of a different tomorrow, you should probably temper your hope.

Most of the nation's political leaders promised "change" in 2009. The Burris (and now Franken-Coleman) controversy, however, indicates that Congress will cling (at least in the near future) to the familiar past and will engage in public grandstanding over relatively insignificant matters when they could instead use that energy to tackle the world's most pressing problems. If you remain unpersuaded, here are some facts to consider [Editor's Note: Beware of Sarcasm]:

* While Bush hunted fruitlessly for nonexistent weapons of mass destruction, Congress subpoenaed athletes and held days of hearings in order to rid professional sports of terroristic steroid use.

* In 2005, after the ultimately destructive housing bubble had already begun, Congress convened an emergency session on national security to reverse a decade of exhaustive Florida litigation that allowed Terry Schiavo to end her life with dignity.

* And in the 1990s, while millions of Americans suffered from a lack of health care, members of Congress made sure that no future president would ever consensually stain a blue dress "not his wife's" (thanks for the line, Cokie Roberts) without suffering severe consequences.

Today, foreclosures, unemployment and bankruptcies have reached record levels. The nation's armed forces continue to battle two costly and deadly wars (costly, deadly, and war -- redundant). Poor people lack essential resources such as health care, jobs, food, shelter and education. Violent crimes have surged as jobs vanish. Children remain "left behind." And deprivations of civil and human rights continue but often go unnoticed and unpunished.

Although these critical issues require immediate attention, our nation's "leaders" have decided to spend precious intellectual and political resources in order to defeat a two-year, probably one-"term," legally appointed replacement Senator. Weighing the costs and benefits, Senator Reid, the Senate's flawed priorities and procedural unfairness will probably harm society much more than living with Blagojevich's alleged taint.

PS: After analyzing the constitutional and political issues at stake in this situation (and writing about them on the blog), I began to wonder why this was even happening. This essay is the product of those thoughts.

Related Readings on Dissenting Justice:

Some Media Outlets Begin "Palinizing" Roland Burris

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Like It or Not, Democracy Prevails: Illinois Supreme Court Refuses to Declare Blagojevich Unfit to Serve

Blago Impeachment: What Would Lincoln Do?

Defiant Blagojevich Names Obama's Successor: Decision Raises Political and Constitutional Questions

Embattled Illinois Governor Rod Blagojevich has defiantly named a successor to serve the remainder of Obama's Senate position. Any candidate that the governor named would have caused conflict, because many politicians, including Obama, have called for Blagojevich to resign and to refrain from naming a successor. But Blagojevich's decision to select former State Attorney Roland Burriss for the position presents even greater political complexity.

Race Politics

Burriss, who is black, would become the only black member of the Senate if his nomination survives a likely battle in the Senate. By picking a respected black politician to replace Obama, Blagojevich forces Democrats to either deny a Senate seat to a black politician or to legitimize his defiant exercise of authority over the process despite increasing demands that he leave office or otherwise decline to name a successor.

It appears that Blagojevich intentionally introduced race politics to the selections process. He first offered the position to Danny Davis, a black member of the House of Representatives, but Davis turned down the offer.

And during the press conference at which Blagojevich made the announcement regarding Burriss, Bobby Rush, a black member of the House of Representatives, stated that: “There are no African-Americans in the Senate . . . And I don’t think that anyone, any U.S. senator who’s sitting in the Senate, right now, wants to go on record to deny one African-American from being seated in the U.S. Senate.”

Rush also urged members of Congress not to "hang or lynch the appointee as you try to castigate the appointer." In response, Blagojevich added: "Feel free to castigate the appointer but don't lynch the appointer. I am not guilty of any criminal wrongdoing!"

Constitutional Questions

Blagojevich's decision to name a successor also complicates an already complex legal situation. Senate Democrats vowed to reject any candidate that Blagojevich names. They claim the authority to do so based on Article I, Section 5 of the Constitution, which states that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . . ." But the Supreme Court narrowly interpreted the scope of this provision in Powell v. McCormack.

In Powell, the House of Representatives refused to seat Adam Clayton Powell of New York, who faced accusations of financial impropriety. John McCormack, the Speaker of the House, claimed such authority under Article I, but the Supreme Court (in a 7-2 ruling) held that the Constitution only gives each chamber the power to judge those qualifications specifically listed in the constitution (e.g., that candidates for Congress meet certain age or residency requirements and that they were chosen under prescribed procedures). The Court's narrow interpretation of Congressional authority under Article I, Section 5 favors Blagojevich and Burriss.

Even if a candidate meets the requirements to occupy a seat in Congress, the Constitution nevertheless permits each house to "expel" a member. Expulsion, however, requires a requires a 2/3 vote and a showing that the candidate for expulsion has engaged in wrongful conduct

Given the public sentiment against Blagojevich naming a successor, at least 2/3 of the Senate probably does not want Burriss to take office. But unless these Senators can demonstrate that Burriss has engaged in improper conduct, they would not have a legitimate basis to expel him. If the Senate refuses to acknowledge the appointment, and Burriss does not withdraw his acceptance of the offer, then Burriss would have to initiate litigation seeking an injunction barring the Senate from refusing to seat him.