Do elected officials have a duty to follow the rulings of courts, even when the courts will not enforce those rulings? To the non-lawyer, this question may be reminiscent of trees falling in empty forests, but for constitutional theorists, it is a central issue in the debate over the Constitution outside the courts. And, if push comes to shove, it may end up playing a role in resolving the question of Roland Burris's eligibility to serve as Senator from Illinois.
There are, it seems to me, four Senatorial paths to blocking Burris:
1) The easiest mechanism would be to seat him and then expel him, but this requires a 2/3 vote.
2) Next comes the technicality route: Declare Burris ineligible because his commission isn't counter-signed by the Illinois Secretary of State, who is refusing to sign, while the Illinois courts are going to take their time ruling on an action seeking to compel the signature. (It's the fun part of Marbury v. Madison all over again!).
3) Then there's the boldest move: Declare Burris ineligible because tainted by the process used to select him (which, at the least, probably includes earlier rejection of candidates unwilling to play ball). For a spirited defense of this approach, see this nice piece by Akhil Amar and my colleague Josh Chafetz.
4) Finally, if all else fails, there's what we might call the Andrew Jackson approach--named for the President who, so the probably-false legend goes, said in response to the Supreme Court's decision in Worcester v. Georgia, "John Marshall has made his decision. Now let him enforce it."
Option 4--defiance of a court ruling that Burris is entitled to serve--would directly raise the Constitution-outside-the-courts issue in one scenario.
By the time Powell v. McCormack got to the Supreme Court, the House of Representatives argued that the case was moot. The 90th Congress had refused to seat Adam Clayton Powell, but after Powell's re-election, the 91st Congress seated him. The Court held that the case was not moot because the question whether Powell should be paid his still-withheld salary for the 90th Congress was alive. But as a consequence of the intervening events, the Supreme Court had no occasion to pass on the question of whether it, or a lower federal court, had the authority actually to order the House to seat Powell. As a result, the case only granted a declaratory judgment.
Now suppose that the Senate cannot muster the votes for option 1, and that a court rejects whatever arguments the Senate advances (presumably something like option 2 or option 3 or a combination) in response to a lawsuit by Burris. Powell makes clear that Burris would then be entitled to a declaratory judgment, but suppose further that the Senate still refuses to seat Burris. When faced with a recalcitrant defendant in ordinary litigation, the normal course is for the plaintiff to return to court to convert the declaratory judgment into an injunction, and if that is not followed, to seek to have the defendant(s) held in contempt.
There are reasons of etiquette and separation of powers why a court that is willing to declare Burris a Senator might nonetheless not go so far as to order that he be seated. Still, for my money, a Court that was willing to end the post-election Presidential contest in 2000 notwithstanding the Constitution's pretty demonstrable commitment of the matter to Congress would likely be willing to order the Senate to seat Burris given that Powell expressly holds that the Constitution does not commit to Congress the right to make judgments beyond determining the qualifications spelled out in the text.
If I'm right about that, then Harry Reid and/or his minions get thrown in the slammer until Burris gets sworn in. But if I'm wrong, then we will have a great victory for the Constitution-outside-the-courts crowd: A court ruling that Burris is eligible to serve, yet his continued exclusion. One reason why I think I'm right (and if I don't think I'm right well, really , who will?!) is that judges hate this scenario. They regard it not as the vindication of checks and balances but as lawlessness.
To be sure, there is an important technical legal difference between:
a) court declares Burris a Senator but doesn't issue injunction, and Congress ignores court declaration;
b) Court enjoins Congress to seat Burris and Senate refuses.
Technically, only b) is lawless. But precisely because this distinction will likely be lost on most people, I suspect that a court willing to declare will be willing (if push comes to shove) to enjoin. And at that point, I very strongly doubt that the Senate Sergeant of Arms would protect a recalciatrant Harry Reid.
Posted by Mike Dorf