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The farce continues

By Jack M. Balkin

According to a story on the Times website, Illinois's Attorney General "said on Wednesday that the secretary of state cannot be compelled by the court to sign the papers, and that it is up to the Senate to resolve the matter in Washington." This is really quite extraordinary, if she's being represented accurately. It seems to suggest that Illinois courts are without power to issue a writ of mandamus to a state official who is, it appears, acting absolutely lawlessly in refusing to act under his clear statutory duty to recognize the unimpeached governor's legal ability, under Illinois law (and the 17th Amendment) to appoint a senator by certifying the instrument of appointment. Lisa Madigan, of course, earlier went to court to ask it to declare the Governor mentally incompetent to serve, so she certainly doesn't shy away from judicial intervention. What, precisely, does she want the Senate to say: that it will waive the requirement of certification if they determine that a state official, in this case the secretary of state, is behaving lawlessly? Or that it will dispense with the certification requirement entirely inasmuch as this appears to add to the requirements set out by the 17th Amendment? If Illinois were a business, one might suggest placing it in receivership. But, hey, most people think we really didn't need a functioning President the past ten weeks, so why should we think that one of our major states needs a functioning state government?

Apropos of dysfunctional state governments, I note that the New York legislature has just met; it is, for the first time since 1964, controlled in both houses by the Democrats, so it will be interesting to see if it is capable, for example, of preparing a budget or otherwise acting like a responsible government. To expect New York to function like a democracy, even under Democratic leadership, is probably too much, however. Federalism would look a lot better if we could find more states that provide models of responsible governance. I'm sure there are some (and I am not being at all sarcastic).

Full post as published by Balkinization on January 07, 2009 (boomark / email).