Quick look at the Illinois Constitution
Article V of the Illinois Constitution deals with the Executive Branch.
Today Pat Quinn discussed a provision that allows a Governor to “step aside” rather than resign.
Article V, Section 6. (c). Whenever the Governor determines that he may be seriously impeded in the exercise of his powers, he shall so notify the Secretary of State and the officer next in line of succession. The latter shall thereafter become Acting Governor with the duties and powers of Governor. When the Governor is prepared to resume office, he shall do so by notifying the Secretary of State and the Acting Governor.
If the office of Lieutenant Governor is vacated, it remains empty until the end of the term. So if Pat Quinn becomes Governor through Blagojevich’s impeachment or resignation, he will not have a Lieutenant Governor.
Article V, Section 7. If the Attorney General, Secretary of State, Comptroller or Treasurer fails to qualify or if his office becomes vacant, the Governor shall fill the office by appointment. The appointee shall hold office until the elected officer qualifies or until a successor is elected and qualified as may be provided by law and shall not be subject to removal by the Governor. If the Lieutenant Governor fails to qualify or if his office becomes vacant, it shall remain vacant until the end of the term.
Comment by Joshua on 9 December 2008 at 2:59 pm:
Also, if you’re wondering why Blago was authorized to make the appointment, and how the IL General Assembly can legislate this power away, I’ll give a quick answer here. The IL Constitution doesn’t empower the Governor with making the appointment, and the state legislature can intercede because of authority given to them by the 17th Amendment to the US Constitution. I found an excellent comment on another blog explaining how this works:
The U.S. Constitution does not vest authority in a state’s governor to appoint senators when a vacancy occurs. The 17th Amendment dictates this rule and says, “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” The U.S. Constitution requires the governor to hold an election so the people may elect a replacement. However, the U.S. Constitution allows a state’s legislature to authorize their governor to appoint a senator until the next election. But without this authorization, the governor has no power to appoint a replacement. So if a governor has the power to appoint a replacement in the U.S. Senate, this power comes from the state’s legislature, not the U.S. Constitution.
Comment by Joshua on 9 December 2008 at 3:05 pm:
And here is the state law that the ILGA would be amending:
(10 ILCS 5/25‑8) (from Ch. 46, par. 25‑8)
Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.
(Source: Laws 1943, vol. 2, p. 1.)
Comment by Dan on 9 December 2008 at 7:43 pm:
Thanks for an interesting discussion. The New York Times is currently reporting that the Governor’s power to fill temporarily a vacant U.S. Senate seat is found in the Illinois Constitution, which seems clearly wrong. What I am wondering is whether, given that the vacancy in the Senate seat currently exists, an attempt by the Illinois General Assembly to change the law granting the Governor the temporary appointment power could be challenged as an invalid retroactive assertion of legislative power. Any thoughts on that question?
Comment by kofi the senate candidate number kofi on 9 December 2008 at 10:31 pm:
Completely off the cuff, I see no problem with the GA changing the law before the Governor exercises his power. I only think it would qualify as an ex post facto move if the Governor had already appointed someone and they moved to invalidate that appointment. I’m not familiar with Illinois case law on the subject, and I this is probably a tenuous comparison at best, but I would compare the GA revoking this power to the Congress revoking the Supreme Court’s jurisdiction in Ex parte McCardle. The legislative move was valid because the judicial branch hadn’t yet exercised its authority. Analogous to the GA moving before Blagojevich exercised his.
Comment by Joshua on 10 December 2008 at 10:45 am:
Dan, I think that Amendment XVII’s placing the power w/ the state legislature would be enough to overwhelm any argument about retroactive assertion of legislative power. I think a more interesting argument would be, if blago names someone today before the ILGA can get that passed, then what happens? Or even more fun, what if they pass a change to the law, he vetoes it, and while they are overriding the veto, he just makes an appointment. Assuming he picks someone who seems credible, like a current member of congress, would Durbin really go to the trouble of trying to unseat him?
The ILGA should impeach his ass immediately, given Pat Quinn promises to make a reasonable appointment. I think some in the ILGA think Quinn is much less reasonable than he really is. Why take a risk on a general election and allowing a republican to possibly win, when instead the ILGA could either give themselves the power to appoint someone more directly, or they could let Quinn make an appointment, maybe he could agree to appoint one of say 5 or 6 people that are acceptable to both Madigan and Cullerton. Just a thought.
Comment by Joshua on 11 December 2008 at 9:55 am:
Random question based on a tenuous legal theory:
do you think the legislature could pass a resolution saying they do not authorize blagojevich to make the appointment, notwithstanding the provision of state law? To change the law, it takes more than the legislatures consent, the gov needs to sign it (or the leg. must override a veto). Does anyone think that passing a joint house and senate resolution would be sufficient to block blago from making the appointment? Maybe it would give Jesse White grounds to refuse to certify a Blago appointment.
I don’t think this would work, but just tossing out the idea…
Comment by The Benevolent Dictator on 12 December 2008 at 12:29 pm:
I don’t think your suggestion really will work. It just sets up more legal challenges, etc. The best thing to do is impeach him and convict and remove him as fast as possible in as dignified a way as possible. I initially thought Lisa’s move would not be good; but now she’s structured it as a temporary removal pending impeach/convict due to Blag’s criminal allegations directly related to his performance and naming Quinn temporarily to serve. That temp remedy has a lot of appeal and is reasonable. What would be good would be have the GA vote to support Lisa’s petition.
Comment by Joshua on 12 December 2008 at 12:34 pm:
I tend to agree, but Am 17 does give the authority to the state legislature…might be worth thinking about.
I was impressed that L-Mad had Abner Mikva w/ her. Lots of automatic credibility