CAN A STATE LEGISLATURE LIMIT A GOVERNOR'S CONSTITUTIONAL AUTHORITY TO APPOINT SENATORS WHEN A VACANCY OCCURS?
Kentucky could be the first test, but let's hope it's not.
Senate Minority Leader Mitch McConnell (R-Ky) freezing in mid speech five days ago. (Courtesy NBC News.) He seems ill and infirm but not yet incapable of performing his duties, which is good, because after Mitch, we can expect chaos on the Republican side of the aisle. That’s not helpful when the GOP House is almost completely nuts.
If you follow politics or the news to any degree, you now there are some genuine and serious concerns about the health and well-being of Senate Minority Leader Mitch McConnell (R-KY.) A few months ago he suffered a temporarily debilitating fall, and in the last month he’s had two public displays of “freezing” and being in apparent catatonic trances. Fortunately, he appears to have recovered, but he is 81 years old and his doctor’s report merely stated that the Senator was free to return to work with no details about his conditions.
We all hope for a full and speedy recovery from whatever ails the Senator, and that there be no further such incidents. First, this is the proper, humane and decent approach. Second, anyone who follows Mitch will be far les successful in reigning in the crazies of the GOP. Whatever we may think of Mitch McConnell, without him, the Senate would be as dysfunctional as the House. The extremist and wacko wing of the Senate GOP, consisting of Cruz, Hawley, Cotten, Tuberville, and Paul, among others, has nowhere near the influence their House colleagues in their caucus’ Nut Brigade enjoy under the spineless leadership of Kevin McCarthy.
None of this is up to us. It’s either up to Mitch McConnell or fate. It’s sad to see historically prominent Senators like Dianne Feinstein and Mitch McConnell stumble to the finish line so helplessly, but the decision to leave can be made only by them alone or by whatever cosmology-or lack thereof-one believes decides these matters.
Here’s the Problem for the Kentucky GOP: Kentucky Law Conflicts with the US Constitution
In 1913, the 17th Amendment to the Constitution was enacted. It called for direct elections of US Senators, ending all legislative appointments of Senators. In the event of a replacement, the “executive authority” (governor) calls an election, except that the state legislature can establish a framework where the governor appoints a replacement to serve until the legislature schedules an election date of their own. In practice, this usually means a Senator is appointed to serve until the next general election, although there is nothing to stop a state legislature from requiring a special election. (As Oklahoma did last year when it held a special election to replace Senator James Inhofe, who called it quits at age 87.)
Kentucky is one of eleven states that enacted an as of yet untested restriction on this federal Constitutional authority given governors. Those states require that the gubernatorial appointment be of a person in the same party as the vacated Senator. Kentucky takes this even a step further, removing from the governor the opportunity to choose the member of that that party of their choice, and requires the governor to pick from three names presented by the vacated Senator’s political party.
Senator Dianne Feinstein (D-CA), 90 years old and apparently unable to function as a Senator. Courtesy Getty Images. during a recent televised committee hearing, the Senator was unaware she was being asked to vote, began a rambling speech, and her aides had to assist the Senator to get the vote completed.She has a stellar career behind her, but the people of CA, the US and her fellow Senators deserve someone fully capable.
There would be no Constitutional crisis if Senator Dianne of California were to accept the time has come to step down. Her state’s replacement law simply follows the Constitution; the governor appoints a replacement of their choice to serve until the next general election. Governor Newsom’s problem is he promised the seat to an African-American woman, sure to create a political firestorm if he did so a year before the primary to replace the Senator, who is not running for reelection. That’s a political problem of his own making.
The Kentucky process unconstitutionally infringes on a governor’s power to appoint a replacement.
I don’t see how a federal court could rule any other way. All appointment authority emanates from the 17th Amendment, and the only authority it grants state legislatures are to decide when the replacement election shall occur and to empower a governor to make an interim appointment. “Empower” means just what that unqualified, unrestricted word means: the state legislature can give a governor that vast discretion to appoint a replacement pending the next election, chosen by them. But the legislature cannot tell the governor who to appoint, and I don’t believe any such partisan requirement could withstand Constitutional scrutiny.
In our federal system, the Supremacy Clause of Article VI means that the feds always have the upper hand where they are specifically given authority in the Constitution or other federal law. The Constitution gave the governors authority to call elections when there are Senate vacancies; the only authority given state legislatures was to set a different election date and empower the governor to appoint whoever that governor chooses pending the election. This makes total sense, because the purpose of the 17th amendment was to remove from state legislators their previous power to appoint US Senators. Why on earth would this Amendment give them back a power just taken away a paragraph above?
IN THE END, IT IS ALL UP TO THE US SENATE
No matter who the governor of a state appoints, no matter what process is employed, the final word is up to the United States Senate. Article I, Sec. 5 of our Constitution reads: “Each House shall be the Judge of the elections, Returns, and Qualifications of its own Members…” The Senate has done so fifty six times, most recently when losing candidate and incumbent Norm Coleman (R-MN) unsuccessfully challenged his Secretary of State’s certification of Al Franken as the winner. If Governor Andy Beshear of Kentucky were required to name a replacement for Sen McConnell, and he named a Democrat, and independent, or a Republican not on the GOP’s list, the Kentucky Republicans or any sitting Senator may file a challenge and the Senate votes whether to seat the appointee or someone else or take some other action.
It Shows Yet Again How the Republicans Don’t Like Our Constitution
Today we’re talking about how the Republicans don’t like that the 17th Amendment completely removed a state legislature’s power to appoint US Senators.
The other day we were talking about how the Republicans don’t like the 14th Amendment guarantee of birthright citizenship, i.e., you are born in the US, you are a citizen. That’s what the Constitution says.
Republicans are always arguing that the First Amendment ban on “recognizing an establishment of religion” really doesn’t mean what it says. They also don’t believe that the Tenth Amendment’s reservation of powers to the states of those not given the federal government does not apply to a woman’s control over her body, to people of the same sex choosing to marry, or to equal protection for people of all genders and sexual identities and orientations.
Almost none of them believe in the peaceful transition of power of Article II, Sec. 1, nor do they accept the Constitutional process of the Electoral College.
I haven’t seen many major political movements in this country as profoundly unAmerican as today’s Republican Party.
Click here to read a Yahoo News article about the Kentucky law.
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