Looking Ahead to a Constitutional Crisis

I’ve spoken with a Senate source regarding the process by which Roland Burris will (or won’t) be seated in the U.S. Senate. First off, have a look at Rule 2 of the Senate:

The presentation of the credentials of Senators elect or of Senators designate and other questions of privilege shall always be in order, except during the reading and correction of the Journal, while a question of order or a motion to adjourn is pending, or while the Senate is voting or ascertaining the presence of a quorum; and all questions and motions arising or made upon the presentation of such credentials shall be proceeded with until disposed of.

The question of whether Burris shall take his seat or not is a privileged matter; the Senate cannot avoid doing something about it. This is one case where Senator Reid cannot simply pretend that the credentials were never received.

According to a Senate staffer familiar with the process, it’s likely that the Secretary of the Senate will receive Burris’ credentials from Governor Blagojevich prior to the start of the new Congress (and the objection of the Illinois Secretary of State is reportedly irrelevant to the issuance of those credentials). On that first day, the roll call of Senators to be sworn in will then include Burris’ name. Senator Reid — or someone else — will object to Burris taking the seat, and the Democratic majority will vote to refer the matter to the Senate Rules Committee for review. It is a foregone conclusion that the Rules Committee will recommend against seating Burris, and that recommendation will be affirmed by a Senate vote.

Assuming that nothing happens to resolve this dispute, Burris and the State of Illinois will presumably take Reid and the Senate to court — since the Supreme Court made clear in Powell v. McCormack that the Senate cannot reject a Senator on other than the straightforward question of eligibility for the office. And it is entirely conceivable that this fight could end with the court mandating that the Senate seat Burris.

And what would Harry Reid do then?

This could come to resemble Florida, 2000 — particularly if the Democrats lack votes to pass some elements of Obama’s agenda. And it seems that the only person in position to prevent such a crisis — the only person blessed with ties to all the major players — is Barack Obama. When will he step in to forge a solution that treats all sides fairly?