Friday, December 12, 2008

Senate Seat Follow-Up

As I remarked yesterday, the Supreme Court case of Powell v. McCormack makes it pretty clear that the Senate would not have the power to refuse to seat a Senator appointed by Illinois Governor Rod Blagojevich to fill the seat vacated by Barack Obama (although, having seated the appointee, it could vote to expel him or her by 2/3 vote). The news is starting to catch up to this point.

But what if the Senate did refuse to seat Blagojevich's pick? Could a court actually order the Senate to seat the person?

This gets a little more complicated. The relief issued in Powell v. McCormack was declaratory. The Supreme Court determined only that Powell was entitled to a judicial declaration that the House of Representatives was without power to exclude him from membership. Further relief was unnecessary, because Powell had been re-elected! He was excluded from the 90th Congress, but he had been re-elected to the 91st Congress and was seated in that Congress. So the Supreme Court didn't face the ultimate question about how far a court could go in ensuring compliance with its decision.

The Court's opinion (which was unanimous) did say that declaratory relief can "be used as a predicate to further relief, including an injunction." So the prospect for a coercive order that an appointee be seated is there. Still, somehow I think the current Court would be more receptive than the Powell Court to the argument that courts lack power to issue coercive relief directed at a House of Congress.

So while Powell seems to make it pretty clear that the Senate could not refuse to seat a Blagojevich appointee, it's less clear what would happen if the Senate did that anyway.

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