Since the U.S. Supreme Court decided Marbury v. Madison over 200 years ago, the law of the land has been that an appointment to federal office is complete and irrevocable once the last act required by the person vested with the appointment power is performed . . .
Wright explains in his letter that the state statute authorizing the governor to appoint Burris is derived from the Seventeenth Amendment to the Constitution. He notes that the state statute does not require the Secretary of State to concur with the appointment or certify that the appointment has occurred. The Secretary of State, however, is statutorily required to countersign and affix the state seal to commissions reflecting the Governor's appointments. "As Marbury v. Madison explains, a secretary of state signs and affixes a seal to the commission merely as evidence that an appointment has taken place," Wright adds.
Marbury arose after President John Adams made several judicial appointments based on a new judicial act passed by the lame duck Congress prior to Thomas Jefferson taking his oath as president. Acting as Secretary of State, James Madison refused to deliver the commissions for several of the Adam's appointees. One of the appointees, William Marbury, petitioned the Supreme Court to issue a writ of mandamus compelling Madison to deliver the commission of his appointment. Chief Justice Marshall agreed that Madison should have delivered Marbury's commission, but he ruled his appointment invalid because the act of Congress under which he was appointed was unconstitutional because it attempted to expand the original jurisdiction of the Supreme Court as provided by the U.S. Constitution, a conclusion questioned by some legal scholars to this day. Marshall distinguished the act of appointing from the act of commissioning. Once the president had made the appointment and affixed his signature to it, Marshall concluded he had performed all acts necessary to vest a legal right in the appointee. The Secretary of State's role was merely to perform a ministerial act:
This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible, but is a precise course accurately marked out by law, and is to be strictly pursued. It is the duty of the secretary of state to conform to the law, and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the president. It is a ministerial act which the law enjoins on a particular officer for a particular purpose.
Marshall's statement of the law on this point, although dicta in this particular case, should carry significant weight in Burris' pending petition for a writ of mandamus before the Illinois Supreme Court and any subsequent legal challenge to the Senate if it refuses to seat him based on Secretary of State White's refusal to affix his signature to the governor's appointment of him. Burris has requested the Illinois Supreme Court for an expedited hearing of his petition. New senators will be seated this coming week. It will be interesting to see what action, if any, Illinois' high court decides to takes in this matter. The State's Chief Justice, Thomas R. Fitzgerald, will preside over Governor Blagojevich's impeachment trial if the House, as expected, impeaches him. The House could vote on his impeachment before the end of this next week.
UPDATE: On "Meet the Press" this morning, Sen. Harry Reid said "we can do whatever we want to do" in defending his position that the Senate can block Burris' appointment by refusing to seat him. Reid says he can't remember what he told Gov. Blagojevich when he contacted him about the Senate seat, but he's certain he didn't tell him who he should or should not appoint. "It's made up," Reid said in reference to the claims laid out in a Sun-Times story that he told the governor not to appoint Jesse Jackson, Jr., Danny Davis or Emil Jones. Having said all of that, Sen. Reid conceded there was room for negotiation, meaning that it is possible that Burris will still be seated. What exactly Sen. Reid expects in return for seating Burris is anybody's guess. Anyone see the irony here?