The limits of the appointment power, II

We are told that Senate Democrats may seek to delay seating Scott Brown, should he be mighty by doing the impossible. Two issues arise: can they do that? And, if they can and do, does Paul Kirk remain a Senator in the interim?

The good news for the Democrats is that they can do it. Roland Burris provides an instructive comparison. Last January, the Senate Democratic leadership said they wouldn't seat Burris; one humiliating climbdown later, Senator Burris. Nevertheless, as I pointed out, they had no basis for refusing to seat Burris. Their power to judge the qualifications of its own members does not extent beyond judging the qualifications prescribed by the Constitution, and the power to judge members' elections and returns is not implicated when a member arrives pursuant to gubernatorial appointment. By contrast, in Brown's case, there is an election, regardless that it is special, and that suffices to implicate the Senate's power to judge elections and returns, supplying pretext for slow-walking Brown's admission.

Of course, if they do it, they will lay themselves open to charges of abuse of process, especially since the Senate has provisionally seated the apparent winner in prior cases.1 On the other hand, they have an extremely strong incentive to suffer through such humiliation. Their motives for such a slowdown are obvious: Obamacare dies if it loses a single vote, Kirk voted for it, and Brown has promised to vote against it. So if they can keep Kirk around for a few more days, they can break a filibuster and pass the bill.

But will refusing to seat Brown keep Kirk around for a few more days? To answer that, we have to understand what Kirk is doing there in the first place. After Sen. Kennedy's death, Massachusetts' legislature rushed through a bill authorizing Gov. Patrick to appointment a temporary Senator. Patrick appointed Kirk. We must consider why the Massachusetts legislature could do that. What are the sources and outer limits of that power? As in the Burris case,2 the answer is the Seventeenth Amendment to the federal constitution. Consistent with Article I § 4's recognition of general state authority to control elections, absent contrary federal law,3 it provides 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" (emphasis added).

So let me ask the question: precisely when does the perimeter of the Seventeenth Amendment cause an appointment made pursuant to it to expire? More pointedly: Does Senator Kirk's appointment expire once the election has taken place—or at least, once it has been certified, see 2 U.S.C. § 1a (state Governors have a federal duty to certify a Senator's election to the Senate President)—regardless of whether the Senate immediately seats the winner of that election?

Update: what to do next: the Kirk contingency plan

1. 1. See, e.g., Roudebush v. Hartke, 405 U.S. 15 (1972), which regular readers may recall from our coverage of Doug Hoffman's "unconcession").
2. 2. See SF: The limits of the appointment power (Dec. 2008).
3. 3. Which it authorizes. Cf. SF: Nationalizing election mechanics? (Nov. 2008).