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«Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment? ...»

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105. Note also that in many places, governors are recallable for extremely unpopular things. See G. Alan Tarr, The State of State Constitutions, 62 LA. L. REV. 3, 7 (2001) (noting that a 1996 constitutional amendment in Minnesota brought the total number of states allowing recall of state elected officials to eighteen); NAT'L CONFERENCE OF STATE RECALL OF STATE OFFICIALS, Mar. 21, 2006, available at

LEGISLATURES,

http://www.ncsl.org/programs/ legismgt/elect/recallprovision.htm (providing detailed analysis of the eighteen states allowing recall of state officials). See generally Vikram David Amar, Adventures in Direct Democracy: The Top Ten ConstitutionalLessons from the CaliforniaRecall Experience,92 CAL. L. REV. 927 (2004).

106. Of course, race and gender (coupled with state action issues) raise their own set of constitutional problems.

107. Amar, IndirectEffects of Direct Election, supra note 31, at 1351-52; Vikram David Amar, Note, The Senate and the Constitution, 97 YALE L.J. 1111, 1116-19 (1987-1988).

108. Amar, The Senate and the Constitution,supra note 95, at 1118-19.

109. See Akhil Reed Amar & Vikram David Amar, Is the PresidentialSuccession Law Constitutional?,48 STAN. L. REV. 113,131 (1995).

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

Senators themselves, combined with Thornton's teaching that our current Constitution does not permit Congress to regulate the qualifications for Congressional officeholding, obviously foreclose such a scheme?

V. Although the Senate Did Not Appear to Appreciate Its Role Last Year, Senators Themselves Have the Authority to Interpret and Vindicate the Meaning of the Seventeenth Amendment The Constitution makes each house, including the Senate, the "Judge of the... Qualifications of its own members."" ° So if the Wyoming Governor had decided to appoint someone outside of the three names submitted to him, it would arguably have fallen upon the Senate to decide whether this person was "qualified" to be appointed, such that the Senate would have had to decide what it thought the Seventeenth Amendment did or did not mean.

Indeed if a majority of Senators believed that the constitutional flaws I have identified in Wyoming's statute are unseverable from the portion of the Wyoming statute that authorizes the Governor to make temporary Senate appointments in the first place, the Senate could have legitimately concluded that there is no valid "empower[ment]" of the Wyoming Governor under the current scheme. The Senate could then have rejected as unqualified (and therefore refused to seat) anybody the Governor appointed-including people on the list of three he will shortly get.

Under this quite plausible scenario, the vacancy from Wyoming would have remained unfilled until either a popular election had been held or until the Wyoming legislature passed a new gubernatorial authorization that would be free of the impermissible restraints and that would allow the Governor to appoint a Democrat.

And under the so-called "political question" doctrine (which, many thought should have been invoked in Bush v. Gore ' itself), federal courts might very well say that since the Constitution gives the Senate power to judge its members' qualifications, federal courts ought to stay out of all these disputes.

–  –  –

The Senate should step up to its interpretive duties;"2 alas, it hasn't, and that is unfortunate. And if a new controversy ripens in Arizona this presidential election year, it could be tragic.

112. Amar, The Senate and the Constitution, supra note 95, at 1122.. See generally

DONALD G. MORGAN, CONGRESS AND THE CONSTITUTION: A STUDY OF

RESPONSIBILITY 344 (1966); Bernard W. Bell, Marbury v. Madison and the Revolution of 1800: Marbury v. Madison and the Madisonian Vision, 72 GEO. WASH. L. REV. 197, 206-07 (2003); Paul Brest, Congress' Role and Responsibility in the FederalBalance of Power:

Congress as ConstitutionalDecisionmaker and Its Power to Counter Judicial Doctrine, 21 GA. L. REV. 57 (1986).

[Vol. 35:4 HASTINGS CONSTITUTIONAL LAW QUARTERLY



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