Amidst all of the debate about the propriety of Blago appointing Roland Burris for Obama's Senate seat, there appears to be little discussion of the ability of the Senate to refuse to seat Burris. There is 1 Supreme Court decision on point here, the 1969 Powell v. McCormack opinion. Applying that precedent to this appointment shows that it will be difficult, if not impossible, for the Senate to refuse to seat Burris.
Adam Clayton Powell, Jr spent 13 terms in Congress representing a CD that was primarily based in Harlem. When he was elected to his 12th term, the House voted not to seat him. He sued, and the case went up to the SCOTUS. In a 7-1 decision, written by CJ Warren the Court held that the House did not have the authority to refuse to seat Powell.
The core ruling in the decision was that the ability of houses of Congress to judge the qualifications of their members under Art. I, Sec. 5 was limited to judging standing qualifications which are expressly set forth in the Constitution. Since Powell had been duly re-elected by the residents of his CD, there was no basis for the House to exclude him. The Court did not address the ability of the House to expel him by a 2/3 vote b/c of the various financial improprities that had been asserted against him.
While Roland Burris has not been elected to the Senate by the people of IL, he has been appointed to fill a Senate vacancy by the current IL governor. While we all agree that Blago should be removed from office ASAP, there is no question that he retains the power to fill the seat until he is impeached and removed from office. Burris, furthermore, unlike Powell has yet to be charged w/ any wrongdoing himself. He is (well) over the age of 30, he is an IL resident, and he has been a US citizen for over 9 years, the other qualifications for office.
Under these circumstances, it appears that the Powell decision precludes the Senate from refusing to seat Burris. The Senate does have the power to expel Burris by a 2/3 vote once he is sworn in. That power has not been exercised since 1862, however. 8 senators were expelled in 1861-62 for supporting the Confederate rebellion, but none have been expelled since then. In the past 66 years, expulsion proceedings were started against Harrison Williams (Abscam) in 1982 and Robert Packwood (sexual misconduct/abuse of power) in 1995. Both men resigned their seats before a final vote.
It is a little surprising, accordingly, that there is widespread talk of the Senate refusing to seat Burris. Reid, Obama, or anyone else who is familiar w/ the Powell decision knows that there is no basis to refuse to seat Burris. Anyone who is familiar w/ Senate traditions knows that expulsion has historically been reserved for such violations as joining an open rebellion or getting videotaped taking bribes.
The asserted basis for not allowing Burris to take his seat is respect for the rule of law. There is after all, something rather seamy about someone taking a seat after being appointed by someone who tried to sell the seat to the highest bidder. The rule of law, however, holds that no basis exists for refusing to seat Burris. Senate traditions militate against removing Burris for the misdeeds of others.
Reid may have made a public commitment here that he will ultimately be unable to fulfill.