In the discussions of the Senate’s options in responding to the Burris appointment, it is accepted that, following Powell v. McCormack, the Senate could freely expel the Senator, once seated, whom it could not so easily exclude. The vote to expel would be iron-clad: the Senate, while not able to simply exclude the appointee, can quickly put him out the door. 

     Yet on these facts—where the individual takes his seat by appointment and not by election—the Court might well decline to make form so clearly triumphant over substance.  For, unlike the Powell case, the grounds for exclusion and expulsion would be the same.

     In Powell, the Court took the House to be adding to the constitutional “qualifications” of the candidate, duly elected, to take his seat.  This it would not allow.  But it would not have stood in the way of the House’s decision to expel for conduct deemed unacceptable in a Representative:  grounds having nothing to do with the election returns, the accuracy of which were never in question.  Powell was clearly elected; the question for the House was his fitness to hold the seat.

     Here the Senate, if it so chose, could expel Burris on the same grounds as it would propose to exclude him—objection to the appointment.  Amar and Chafetz argue that the Senate is the supreme judge of returns, and they would construe the report of an appointment to be a “return.”  This seems a plausible reading of the Senate’s authority, but another way to test  the argument is to consider whether the Senate could expel Burris for the same reason—that the appointment was suspect at its source. 

     If so—and none of the commentators so far seem to doubt it—would the Court require the Senate to accept the discredited appointment, permitting the appointee to perform the duties of the office and cast votes, solely to put it through the motions of later expelling the appointee?  The Court could well see this as forcing the Senate to sustain considerable harm—not the least of which are the votes affected by the participation of a Senator whose appointment it holds to be invalid and intends to undo by expulsion. 

     The one difference, of course, is the super-majority voting requirement for expulsion, but Amar and Chafetz suggest that the Senate can anticipate and address this potential objection:

Finally, the Senate can bulletproof its vote to exclude Burris by adopting an anticipatory "sense of the Senate" resolution declaring that if Burris were ever to take the matter to a federal court and prevail, the Senate would immediately expel him. Expulsion would ultimately require a two-thirds vote. If two-thirds of the Senate is ready to vote against Burris now, an anticipatory resolution would discourage him from going to court in the first place. It would also discourage any activist judges who might be tempted by his case.

     Powell concluded that in protecting the right to vote—the outcome of a duly conducted election—the Court would do its constitutional duty without affront to a coordinate branch’s constitutional prerogatives.  A court presented with the Blagojevich/Burris case might well decide that there in no constitutional value—nothing like the right to vote—to justify the cost to the Senate of a judicial decree that it proceed by one process rather than another to achieve the same result on the same grounds. 

     In Powell, after all, the Court found that “Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its Members for disorderly behavior and, in extreme cases, to expel a Member with the concurrence of two-thirds" (emphasis added).  The Court today could judge that the Burris appointment does not fall within the category of “most cases.”

Bob Bauer