Senatorial Minimalism?

At this point, it seems there is a good deal of doubt about whether the Senate truly believes that a Senatorial appointment by Illinois governor Rod Blagojevich is so tainted that it should exercise its power under Article 1, Section 5 of the Constitution and not seat Roland Burris. If that is so, then this controversy should be brought to an end and Burris should be seated forthwith. I would disagree with the Senate's assessment, but the Constitution provides that power to the Senate, not to me. I do disagree with the argument presented by Walter Dellinger for Senatorial minimalism:

It is only a decision to exclude Mr. Burris that would lead to a continuing dispute about whether the Senate had the authority to reject the choice of a sitting governor. The Senate can avoid this constitutional quagmire entirely by agreeing to seat Mr. Burris, a respected public servant no one has accused of any wrongdoing.

Mr. Dellinger clerked for Justice Hugo Black when Powell v. McCormack was decided. It is interesting that Dellinger does not discuss the fact that the Court could have avoided the constitutional question and not decided the Powell case, which was moot in its essential question, whether Powell would be seated in the 90th Congress. Dellinger writes:

A similar situation arose in 1967, when the House of Representatives refused to seat Adam Clayton Powell Jr., the outspoken congressman from Harlem accused of personal misconduct involving public funds. I was clerking for Justice Hugo Black two years later when he joined in the Supreme Court decision that the House lacked the power to deal with Powell’s conduct by refusing to seat him.

In Justice Black’s view, one of the worst abuses of power in England resulted from parliamentary majorities wrongly refusing to seat dissident legislators. That experience makes me very wary about the Senate’s barring a person from taking a seat unless its authority to do so is clear. Here it is not.

This is an interesting point. Because Justice Black viewed the refusal to seat dissident legislators in England as one of the worst abuses of power, he voted to reach out and decide a case that was basically moot. To wit, Dellinger endorses the Court's "refusal to avoid the Constitutional quagmire" (indeed, the Court went well out of its way to jump into the Constitutional quagmire to decide a mooted case). I would have felt better if Black's strong feelings on the meaning of US Constitution had been his motivation to decide Powell as opposed to his views on the practices in England. In his dissent in Powell, Justice Potter Stewart wrote:

I believe that events which have taken place since certiorari was granted in this case on November 18, 1968, have rendered it moot, and that the Court should therefore refrain from deciding the novel, difficult, and delicate constitutional questions which the case presented at its inception. The essential purpose of this lawsuit by Congressman Powell and members of his constituency was to regain the seat from which he was barred by the 90th Congress. That purpose, however, became impossible of attainment on January 3, 1969, when the 90th Congress passed into history and the 91st Congress came into being. On that date, the petitioners' prayer for a judicial decree restraining enforcement of House Resolution No. 278 and commanding the respondents to admit Congressman Powell to membership in the 90th Congress became incontestably moot.

. . . [O]n January 3, 1969, the House of Representatives of the 91st Congress admitted Congressman Powell to membership, and he now sits as the Representative of the 18th Congressional District of New York. With the 90th Congress terminated and Powell now a member of the 91st, it cannot seriously be contended that there remains a judicial controversy between these parties over the power of the House of Representatives to exclude Powell and the power of a court to order him reseated. Understandably, neither the Court nor the petitioners advance the wholly untenable proposition that the continuation of this case can be founded on the infinitely remote possibility that Congressman Powell, or any other Representative, may someday be excluded for the same reasons or in the same manner. And because no foreseeable possibility of such future conduct exists, the respondents have met their heavy burden of showing that "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 393 U. S. 203.

. . . [D]ismissal of Powell's action against the legislative branch would not in the slightest prejudice his money claim, [Footnote 3/25] and it would avoid the necessity of deciding constitutional issues which, in the petitioners' words, "touch the bedrock of our political system [and] strike at the very heart of representative government." If the fundamental principles restraining courts from unnecessarily or prematurely reaching out to decide grave and perhaps unsettling constitutional questions retain any vitality, see Ashwander v. TVA, 297 U. S. 288, 297 U. S. 346-348 (Brandeis, J., concurring), surely there have been few cases more demanding of their application than this one. And those principles are entitled to special respect in suits, like this suit, for declaratory and injunctive relief, which it is within a court's broad discretion to withhold.

"We have cautioned against declaratory judgments on issues of public moment, even falling short of constitutionality, in speculative situations." Public Affairs Press v. Rickover, 369 U. S. 111, 369 U. S. 112. "Especially where governmental action is involved, courts should not intervene unless the need for equitable relief is clear, not remote or speculative." Eccles v. Peoples Bank of Lakewood Village, 333 U. S. 426, 333 U. S. 431.

In short, the case Dellinger relies upon is hardly a model of restraint. Quite the opposite. It is ironic to see it used to urge restraint on the Senate.

Speaking for me only

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    At the risk of being a broken record (5.00 / 1) (#2)
    by Steve M on Wed Jan 07, 2009 at 08:27:11 AM EST
    I would note that my proposed course of action, investigating the Burris appointment and then seating him once the investigation presumably turns up nothing, fully protects the Senate's prerogatives for future cases while simultaneously avoiding a messy court battle in the present case.

    In terms of the politics of the situation, this is a face-saving strategy for Senators who didn't expect Burris to call their bluff.  And rather than give Republicans free rein to demagogue the seating of Blagojevich's nominee, it forces them to participate in the investigation and actually point to concrete evidence which suggests Burris should not be in the Senate.  I stand by my recommendation.

    I have always agreed with (none / 0) (#8)
    by dk on Wed Jan 07, 2009 at 09:00:30 AM EST
    this position.  However, at this point, I don't really see how the investigation would be structured, given the public statement of the entire Democratic senate caucus already absolving Burris of any taint.  Can they really turn back the clock and say that an investigation is warranted now given that they have essentially already passed judgement on the question?

    Seems like they can still claim they have met their prerogatives for future cases without launching any formal investigation at this point.  Again, I agree that it would have been better form and better politics if they had just done their investigation instead of their silly line-drawing in the first place, but that ship may have sailed.


    I think that (none / 0) (#11)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:04:11 AM EST
    if you are going to think about this precedentially, then the Senate has ceded the power to judge "elections and returns" forever.

    Why? (none / 0) (#15)
    by dk on Wed Jan 07, 2009 at 09:14:03 AM EST
    If they say that they considered whether Burris was tainted, decided he wasn't, and then seated him, what's the problem?

    Just because you and others may disagree in the criteria of analysis doesn't mean they didn't exercise their constitutional authority.


    Because they did not (none / 0) (#18)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:18:26 AM EST
    if they seat him. We know what they said about it already. They said it BEFORE Burris was appointed.

    What changed since then?

    I think the practical effect is clear - the Senate will have permanently ceded its power to judge elections and returns.


    Can't predict the future, of course. (none / 0) (#29)
    by dk on Wed Jan 07, 2009 at 09:34:23 AM EST
    But my instinct says that this won't end up being much of a precedent setter.  The power only really comes into play in very unique situations, and most likely each will play out on its own set of facts.

    But, regardless, if they do exercise the power in the future, I hope that next time they exercise it responsibly (i.e. launch an investigation, and then come to a conclusion) rather than the way they did it this time (i.e. announce a conclusion first as a way to pay a political game of chicken and then have to wiggle that conslusion into the matching the ultimate outcome).


    Unique situatons? (none / 0) (#51)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:06:15 AM EST
    Like what? When a governor tries to sell the seat? Oh wait, not THAT unusual circumstance. Must be some other unusual circumstance.

    No, like if there was proof that (none / 0) (#55)
    by dk on Wed Jan 07, 2009 at 10:18:02 AM EST
    the Governor actually sold the seat to the person he appointed.

    For most of us this has (none / 0) (#20)
    by ruffian on Wed Jan 07, 2009 at 09:22:33 AM EST
    been an education or reminder that they have that power in the first place. Certainly it came as news to the average citizen, even if it was poorly explained by the media. I think that even if they don't exercise the power this time, they reminded people that they can. I know that is pretty weak tea, but I don't think it gives up the power forever.

    I disagree (none / 0) (#22)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:25:33 AM EST
    This controversy constitutes being a de facto extension of Powell to the "judge elections and returns" power of Article 1, Section 5.

    Any remedy for corruption, taint or fraud in an election or appointment to a House or Senate seat now must come from a court, not the Senate.

    The Senate no longer will adjudicate its own elections and returns, if this is precedential of ocurse.


    I defer to you on matters of precendence (none / 0) (#24)
    by ruffian on Wed Jan 07, 2009 at 09:30:47 AM EST
    since I don't know the criteria for something becoming precedential. And I agree that if this is bound to become precedential, they better not back down. It would turn from farce to tragedy if an important Senatorial prerogative is lost.

    It is not a question of criteria (none / 0) (#28)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:33:58 AM EST
    The next Senate could choose to seat anyone it choose and then there could be a test case.

    I am talking about political precedence.

    Think of it this way, if a Governor who is going to be impeached and indicted for trying to sell a Senate seat can have his appointment to that VERY SEAT have his appointment accepted, which appointment or election is the Senate exactly going to reject?


    OK, I thought you meant some sort (none / 0) (#37)
    by ruffian on Wed Jan 07, 2009 at 09:51:21 AM EST
    of legal precedence that would be established.

    Politically yes, if this isn't cause for not seating someone, they are basically saying that only the most obvious election fraud imaginable would make them reject someone. Which makes it an unusable power.


    Well, I think to say (none / 0) (#38)
    by dk on Wed Jan 07, 2009 at 09:54:31 AM EST
    that would make it an "unusable power" might be an exaggeration.  You seem to assume that obvious election fraud could never occur.  I'm not so sure.

    Good luck (none / 0) (#49)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:05:16 AM EST
    with that "obvious fraud" case.

    Is this an actual investigation? (none / 0) (#14)
    by ricosuave on Wed Jan 07, 2009 at 09:12:07 AM EST
    Or just a an "investigation" with big air quotes around it?  Would they have to hold hearings?  Would they be tougher than they were about subpoenas on bush officials?  How much time and money should they pour into this investigation.  Will this be an investigation of Burris or of Blagojevich?  

    Do you really think Republicans are going to either be satisfied with the level of investigation that was carried out, or (if granted free reign to investigate so they can't complain later) that they will not use this as a launching pad for tying Blagojevich to every Dem official in the US?

    But if it is just a phony, time-wasting exercise with no real action and a foregone conclusion, designed not to uncover wrongdoing but to save face, then count me out.  That is not the kind of government I want.


    Heck (none / 0) (#54)
    by Steve M on Wed Jan 07, 2009 at 10:15:51 AM EST
    Invite Patrick Fitzgerald to testify if you like.  Whatever it takes to establish convincingly that Burris is either clean or he isn't.  Moot point anyway.

    There is no basis (none / 0) (#41)
    by Pepe on Wed Jan 07, 2009 at 09:59:12 AM EST
    in the law for what you propose to start with. You sound like the Senate Dems who got themselves in this mess by just making stuff up as they went a long - particularly Reid. What you propose is to ignore the law and go on a witch hunt on a man who has a solid record as a government servant. You also ignore the very real fact that whatever Blagojevich is he isn't dumb enough to appoint someone who has paid for the Senate position thereby self-incriminating himself.

    As for what BTD said, who has been wrong on this issue from the beginning, including being wrong on his posts about DiFi, where to start?

    So I will just comment on this piece of silliness:

    Dellinger endorses the Court's "refusal to avoid the Constitutional quagmire" (indeed, the Court went well out of its way to jump into the Constitutional quagmire to decide a mooted case). I would have felt better if Black's strong feelings on the meaning of US Constitution had been his motivation to decide Powell as opposed to his views on the practices in England.

    Well first of all Black's opinion, his ENTIRE opinion, was based on the US Constitution, not just on the one cherry picked passage provided. It helps to look at an opinion and it basis in it's entirety, not just one passage taken out of context of the whole.

    And for the comment he made regarding "the practices in England" - what is wrong with that? Much, if not most, of the Constitution itself was founded on the rejection of the practices of England - from laws, to rejecting monarchy and establishing a real and working democracy, to religious freedom, etc etc!!! If a country and it's laws and traditions were founded on the rejection of the "practices in England" then I see absolutely no problem in mentioning those things in a court opinion. What, are we to forget the very basis of why this country was fought for and formed? To suggest so is silly.

    As for BTD's comment that the SCOTUS should have never taken up Douglas - - again, What! The SCOTUS in that case was the only vehicle we has to make sure that any other branch of government, in this case the House, did not over reach their authority. In that case the overreach would have been the House rejecting the will of the voters which would have been a very very bad precedent to set and would have been a blow to democracy itself, and yes, would have taken us a step backward to the undemocratic practices in England - just as Black mentioned.

    To shift gears here, as I said yesterday the Dems totally blew it on this not only legally but politically. They took a story that they should have quickly buried and brought it to the front pages. Obama did the same. Not a stellar start for the president-elect or the new Dem majority in the Senate. They manage to effectively snuff out their effort to right the economy from the news and wrap themselves in self-inflicted controversy. And in the end they look like damned fools having to backtrack and follow the rule of law.

    I'm also kind of ashamed at all the knee jerkers all over the blogs who missed on all of this and joined the choir against Burris by totally ignoring the laws of the land. Group think is very dangerous.

    And oh yeah, to repeat from my post yesterday - Obama should fire his press advisers. If they could not see how this was going to suck the air out of his visit to DC they have no place in his administration. In fact if Obama himself could not see that it does no bode well for the future. Gees if I were a Republican I would be going to one of their parties they are probably holding to celebrate the blunder of Obama and the Dems. Plenty of laughs to go around!


    Black did not author the opinion (none / 0) (#47)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:04:37 AM EST
    I quoted Dellinger on what Black's motivation was. As for my being wrong on everything, we will never know will we? the case was not decided.

    A case need not be decided (none / 0) (#59)
    by Pepe on Wed Jan 07, 2009 at 10:25:12 AM EST
    for common sense to be recognized. Your comments as I pointed out are just dead wrong and I gave good and logical reasons for that which you did not rebut. Nuff said.

    Are you still posting here? (none / 0) (#56)
    by Steve M on Wed Jan 07, 2009 at 10:18:37 AM EST
    I'm glad you think that Laurence Tribe, Akhil Amar, and all the other constitutional law experts who believed the Senate had the right to refuse Burris were "totally ignoring the laws of the land," but I think your credentials to serve as the final authority on this are somewhat lacking.  Maybe, just maybe, there's an issue in existence where you don't have it all figured out.

    LOL (none / 0) (#61)
    by Pepe on Wed Jan 07, 2009 at 10:35:46 AM EST
    Am I still posting here? What a predictable and sophomoric comment from you Steve.

    I didn't read Tribe or Amar on this issue. Didn't have to. The law is the law and no amount of political theater changes that fact. Well except for  people like you who chose to ignore the law and make up their own reality on a consistent basis.

    Looks like Tribe and Amar are going to have egg all over their faces on this one. They too ignored the law and got caught up in the political theater along with you. Seems that there is not going to be enough eggs to go around.


    Right (none / 0) (#62)
    by Steve M on Wed Jan 07, 2009 at 10:46:28 AM EST
    It's not possible that anyone other than yourself could have a reasonable interpretation of the law that differs from yours.  Thanks for reminding me why I chose to ignore your childish rants and why I will now return to doing so.

    What was there to interpret? (none / 0) (#65)
    by Pepe on Wed Jan 07, 2009 at 11:11:57 AM EST
    It is not a complex law at all. I even think Reid understood the law but foolishly attempted to circumvent it with a head fake and a bluff. How does he like his eggs?

    And Steve, the only thing "childish" is you. If my so called rant was so off base you would have pointed that out, but you didn't because you couldn't. What I said about you trying to make up your own reality on the issue was correct as were my comments about BTD's post and about how Obama and the Dems screwed up. You know that so stop with the sophomoric commentary.

    If your next post is on a personal basis (which seems to be your SOP) as was the last one was I'm not going to waste my time responding. But if you have something to discuss about the actual issue or what I posted about the issue then we have something to "intelligently" talk about. Save the schoolyard stuff for others.


    Amar's argument (none / 0) (#70)
    by blogname on Wed Jan 07, 2009 at 11:50:06 AM EST
    Constitutional law scholars on the largest con law emailing list for the most part blasted Amar's arguments. They are not that popular.
    Also, a number of leading theorists have advanced the opposite side. Con law issues are rarely black and white, and I will say that this one is not. But the weight of authority goes against the Senate, and it is not entirely close either.

    Who could have predicted (5.00 / 1) (#3)
    by ricosuave on Wed Jan 07, 2009 at 08:30:40 AM EST
    that the Democrats would cave in.  They could have put tons of legal research into it and come up with all kinds of constitutional and procedural reasons to bar him.  But it is far easier to make a bold statement and then refuse to back it up.

    The secretary of state of Illinois gave them a fig leaf to hide behind.  When that is gone, does anyone actually believe they will stick to their guns?

    Reason for doubt could be (none / 0) (#1)
    by Saul on Wed Jan 07, 2009 at 08:19:37 AM EST
    as Darren Hutchinson explains in his article
     A Harry Reid Flip Flop?

    I completely understand (none / 0) (#4)
    by Abdul Abulbul Amir on Wed Jan 07, 2009 at 08:34:26 AM EST

    I completely understand why any Blago appointment is to say the very least suspect.  OTOH from a purely political point of view every news clip that mentions both Blago and Reid is a distraction that Obama can do without.

    If they don't seat him, then what? (none / 0) (#5)
    by me only on Wed Jan 07, 2009 at 08:37:26 AM EST
    What is the hopeful outcome for those who don't want to seat Burris?

    It's a war of attrition (none / 0) (#9)
    by ricosuave on Wed Jan 07, 2009 at 09:01:04 AM EST
    Blagojevich has no reason to back down, and earns some people indirectly on his side while they push for Burris.  Reid, et al, have nothing to gain by dragging this out other than distraction, potential dissention in the party (and a phyrric micro-victory in their yet-to-be-waged war on corruption).  They have to hope that the state officials solve their problem for them by removing Blagojevich or by determining that the Sec State of Illinois is justified in refusing to sign.

    Blago's action gave Reid no hopeful outcomes, so he is stalling for time to see if the situation resolves itself locally before he actually has to do anything publicly.


    I agree.... (none / 0) (#6)
    by Exeter on Wed Jan 07, 2009 at 08:55:44 AM EST
    plus there is the issue of precedence... do we really want to go down this road?

    The Case Was Not Moot! (none / 0) (#7)
    by blogname on Wed Jan 07, 2009 at 09:00:09 AM EST
    The Court concluded that the case was not moot, because the issue of back-pay remained live.  So even if Powell could not obtain injunctive relief (because of mootness) he could still receive the monetary remedy he sought. Alas, the case was not moot.

    The Court decided it was not moot (none / 0) (#10)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:02:54 AM EST
    because it could, not because it followed its own precedents.

    There is no doubt the case was moot under the precedents controlling the case. And precedents that have controlled SINCE the case.

    Powell's mootness holding was sui generis.


    W (none / 0) (#16)
    by blogname on Wed Jan 07, 2009 at 09:14:21 AM EST
    Mootness doctrine does preclude hearing of the case if a claim for damages or an injunction still exists. An injunction could issue even if the past threat has subsided when the Court believes that the wrongful action could happen again.  A damage claim exists when, even if the threatened action has subsided and will not recur, the plaintiff has suffered a cognizable injury from the wrongful act.  I do not know if this was the FIRST case to make this holding, but even accepting your statement that it was, isn't this good law? If not, then defendants can escape liability by ceasing wrongful conduct and promising never to engage in the behavior again.  If courts declared cases moot on those grounds alone, then plaintiffs could never recover.

    Of course this is true (none / 0) (#17)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:16:46 AM EST
    but beside the point. There was no way the facts therein constituted a continuing controversy or threat to Powell regarding the main thrust of the case.

    Again, I suggest you read Potter Stewart's dissent. the majority opinion is truly nonsense on the mootness question and indeed, was sui generis on the point.


    You are arguing law (none / 0) (#50)
    by Pepe on Wed Jan 07, 2009 at 10:05:42 AM EST
    and ignoring the preservation of democracy as I point out in my post upthread. Ignoring democracy in favor legal nuance is not wise.

    Which election (none / 0) (#52)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:06:59 AM EST
    did Burris win for  the Senate?

    Are you losing it? (none / 0) (#64)
    by Pepe on Wed Jan 07, 2009 at 10:57:39 AM EST
    You were no discussing Burris in your sub-thread with 'blogname'.

    I've been noticing that as a tactic you have been spinning other posters heads by defecting the topic to other things irrelevant to the actual posts and then doing so by not actually answering the post but by posing an irrelevant question as you tried with me. Please don't bother. Such disingenuous maneuvers are way to obvious.

    Just goading you.


    edit (none / 0) (#71)
    by blogname on Wed Jan 07, 2009 at 11:50:44 AM EST
    "does not" in the first sentence.....

    The House Speaker Wanted to Assert Power (none / 0) (#12)
    by blogname on Wed Jan 07, 2009 at 09:04:54 AM EST
    The House speaker could have avoided a decision, perhaps, by settling the monetary claim. Since the 90th Congress had already ended, and if, as the excerpt you cite, the House would never attempt to bar Powell again -- then the only reason for not settling the action is because the House wanted to test the boundaries of its power.  It lost the bargain. That's not the Court's "fault." And it does not amount to judicial overreach. Parties settle all the time when they are unsure how the legal analysis will look.

    This is simply wrong (none / 0) (#13)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:09:16 AM EST
    It requires you to ignore the controlling precedent on the question. I suggest you read Potter Stewart's dissent on the issue.

    The case was moot. The Powell ignored controlling precedent and jumped into the Constitutional fray because it wanted to.

    My point is that it is ironic that Dellinger hangs his hat on Powell when everything he says about the Senate avoiding the constitutional issue more properly applies to the Powell decision he cites with approval.


    What about my last point: (none / 0) (#19)
    by blogname on Wed Jan 07, 2009 at 09:20:12 AM EST
    If courts declared cases moot -- even if plaintiffs have suffered a cognizable injury -- simply because the wrongful conduct has stopped and will likely never occur again -- then this will allow defendants to escape liability in a host of settings.  Take the ordinary tort action. Most plaintiffs are not in a constant relationship with a tortfeasor, so the wrongful conduct has ended and won't recur -- but the plaintiff has suffered a loss that the court must remedy.  This is a basic legal principle.

    That is not the question asked (none / 0) (#21)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:22:59 AM EST
    You ask what the rule of mootness SHOULD be as opposed to what it is.

    I refer you again to Justice Potter Stewart's dissent.


    Yes but (none / 0) (#25)
    by blogname on Wed Jan 07, 2009 at 09:31:07 AM EST
    So, if the result would defy logic, it's impossible to question it?

    Second, I have read both the majority and the dissent, and I find Warren's analyis distinguishing the case that Stewart believes makes the issue moot persuasive. In that case, the plaintiff did not even brief the issue of salary, and the court , on its own, decided that it was "incidental." In this case, the court concluded that the salary issue was not incidental and therefore distinguished the two cases. Furthermore, remedies law cases have a longstanding tradition of remaining live if a damage claim exists. So your assertion that the court invented law for Powell is just wrong. Courts have awarded damages despite the cessation of wrongful conduct for as long as mootness has existed.


    Do you really? (none / 0) (#27)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:31:58 AM EST
    Can you quote the parts you found persuasive?

    For those interested (none / 0) (#31)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:40:30 AM EST
    The pertinent part of the majority decision:

    Where one of the several issues presented becomes moot, the remaining live issues supply the constitutional requirement of a case or controversy. See United Public Workers v. Mitchell, 330 U. S. 75, 330 U. S. 86-94 (1947); 6A J. Moore, Federal Practice 1157.13 (2d ed.1966). Despite Powell's obvious and continuing interest in his withheld salary, respondents insist that Alejandrino v. Quezon, 271 U. S. 528 (1926), leaves us no choice but to dismiss this litigation as moot. Alejandrino, a duly appointed Senator of the Philippine Islands, was suspended for one year by a resolution of the Philippine Senate and deprived of all "prerogatives, privileges and emoluments" for the period of his suspension. The Supreme Court of the Philippines refused to enjoin the suspension. By the time the case reached this Court, the suspension had expired and the Court dismissed as moot Alejandrino's request that the suspension be enjoined. Then, sua sponte, [Footnote 9] the Court considered whether the possibility that Alejandrino was entitled to back salary required it "to retain the case for the purpose of determining whether he [Alejandrino] may not have a mandamus for this purpose." Id. at 271 U. S. 533. Characterizing the issue of Alejandrino's salary as a "mere incident" to his claim that the suspension was improper, the Court noted that he had not briefed the salary issue, and that his request for mandamus did not set out with sufficient clarity the official or set of officials against whom the mandamus should issue. Id. at 271 U. S. 533-534. The Court therefore refused to treat the salary claim and dismissed the entire action as moot.

    Respondents believe that Powell's salary claim is also a "mere incident" to his insistence that he was unconstitutionally excluded so that we should likewise dismiss this entire action as moot. This argument fails to grasp that the reason for the dismissal in Alejandrino was not that Alejandrino's deprivation of salary was insufficiently substantial to prevent the case from becoming moot, but rather that his failure to plead sufficient facts to establish his mandamus claim made it impossible for any court to resolve the mandamus request. [Footnote 10] By contrast, petitioners' complaint names the official responsible for the payment of congressional salaries and asks for both mandamus and an injunction against that official. [Footnote 11]

    Furthermore, even if respondents are correct that petitioners' averments as to injunctive relief are not sufficiently definite, it does not follow that this litigation must be dismissed as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly unconstitutional House resolution. That claim is still unresolved, and hotly contested by clearly adverse parties. Declaratory relief has been requested, a form of relief not available when Alejandrino was decided. [Footnote 12] A court may grant declaratory relief even though it chooses not to issue an injunction or mandamus. See United Public Workers v. Mitchell, supra, at 330 U. S. 93; cf. United States v. California, 332 U. S. 19, 332 U. S. 25-26 (1947). A declaratory judgment can then be used as a predicate to further relief, including an injunction. 28 U.S.C. § 2202; see Vermont Structural Slate Co. v. Tatko Brothers Slate Co., 253 F.2d 29 (C.A.2d Cir.1958); United States Lines Co. v. Shaughnessy, 195 F.2d 385 (C.A.2d Cir.1952). Alejandrino stands only for the proposition that, where one claim has become moot and the pleadings are insufficient to determine whether the plaintiff is entitled to another remedy, the action should be dismissed as moot. [Footnote 13]

    There is no suggestion that petitioners' averments as to declaratory relief are insufficient, and Powell's allegedly unconstitutional deprivation of salary remains unresolved.

    Respondents further argue that Powell's "wholly incidental and subordinate" demand for salary is insufficient to prevent this litigation from becoming moot. They suggest that the "primary and principal relief" sought was the seating of petitioner Powell in the 90th Congress, rendering his presumably secondary claims not worthy of judicial consideration. Bond v. Floyd, 385 U. S. 116 (1966), rejects respondents' theory that the mootness of a "primary" claim requires a conclusion that all "secondary" claims are moot. At the Bond oral argument, it was suggested that the expiration of the session of the Georgia Legislature which excluded Bond had rendered the case moot. We replied:

    "The State has not pressed this argument, and it could not do so, because the State has stipulated that, if Bond succeeds on this appeal, he will receive back salary for the term from which he was excluded." 385 U.S. at 385 U. S. 128, n. 4. Bond is not controlling, argue respondents, because the legislative term from which Bond was excluded did not end until December 31, 1966, [Footnote 14] and our decision was rendered December 5; further, when Bond was decided, Bond had not as yet been seated, while, in this case, Powell has been. [Footnote 15] Respondents do not tell us, however, why these factual distinctions create a legally significant difference between Bond and this case. We relied in Bond on the outstanding salary claim, not the facts respondents stress, to hold that the case was not moot.

    Finally, respondents seem to argue that Powell's proper action to recover salary is a suit in the Court of Claims, so that, having brought the wrong action, a dismissal for mootness is appropriate. The short answer to this argument is that it confuses mootness with whether Powell has established a right to recover against the Sergeant at Arms, a question which it is inappropriate to treat at this stage of the litigation. [Footnote 16]

    Mootness as a pleading issue. Not convincing to me.

    Nope but I will give you precedent for: (none / 0) (#63)
    by blogname on Wed Jan 07, 2009 at 10:52:32 AM EST
    Where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests. See Standard Fashion Co. v. Magrane-Houston Co., 258 U.S. 346, 353, 42 S.Ct. 360, 361, 66 L.Ed. 653 (1922).

    The quote comes from Powell.  As someone quite familiar with Remedies doctrines, this is pretty standard. Also, there are very few 8-1 rulings where I agree with the dissent.  This was not one of them.

    Stewart just botched his analysis by failing to consider basics of civil litigation.  Plaintiffs can pursue multiple forms of relief, and if one form of relief becomes "moot," as it did in Powell (the court could not order him admitted to an expired congressional term), the other claims for relief can keep the case alive for Article III purposes.  Otherwise, this would defeat most complex litigation claims -- or cases that last for long periods of time (most of them) where an injunction repairing the effects of prior misconduct is moot.  

    Today, con law scholars teach Powell to expound on the political question doctrine - not to treat it as a dramatic departure from the mootness docrtine. It simply wasn't.


    Reid is weak.... DI-FI says seat Burris (none / 0) (#23)
    by Exeter on Wed Jan 07, 2009 at 09:29:08 AM EST
    and I would bet what DI-FI wants, DI-FI gets

    Breaking News! (none / 0) (#26)
    by Saul on Wed Jan 07, 2009 at 09:31:31 AM EST
    Burris to be seated.

    The article I've seen (none / 0) (#30)
    by andgarden on Wed Jan 07, 2009 at 09:40:16 AM EST
    quotes anonymous sources. But the writing has been on the wall since yesterday.

    Its on TV (none / 0) (#33)
    by Saul on Wed Jan 07, 2009 at 09:42:19 AM EST
    News conference being set up (none / 0) (#35)
    by Cream City on Wed Jan 07, 2009 at 09:47:38 AM EST
    for Reid and Burris.  Their meeting is over, and all sources state it's a done deal, with Burris in the Senate.

    See also Chicago Trib re state secretary of state, whose response to Burris' suit was required today, saying that the Senate was silly, because the sos signature is only "ceremonial."  So he's not happy about being made the "fall guy."

    Kass and Co. will have fun with that in their columns, as the sos has just argued that the taxpayers don't need to issue his paycheck, it seems.


    Good god (5.00 / 1) (#39)
    by ruffian on Wed Jan 07, 2009 at 09:59:09 AM EST
    So, if I might recap -

    They call attention to the Blago taint. Then they back off that and make someone else a fall guy with a flimsy excuse. Now they are going to have a news conference to try to explain it away.

    Has the Senate voted for majority leader yet? Can we get someone else besides Reid now? Because that will be the only silver lining from all of this.


    50 Democratic Senators (none / 0) (#45)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:03:20 AM EST
    signed the letter.

    Good point (5.00 / 1) (#48)
    by ruffian on Wed Jan 07, 2009 at 10:05:06 AM EST
    His finest moment of leadership.

    The signature of the SOS (none / 0) (#69)
    by oldpro on Wed Jan 07, 2009 at 11:28:06 AM EST
    could hardly be the controlling issue.  Seems to me that would give every state's SOS veto power over their governor's appointments.  What would be the constitutional authority for that?

    Actually (none / 0) (#57)
    by Pepe on Wed Jan 07, 2009 at 10:21:33 AM EST
    the writing has been on the wall since the beginning of this Obama/Senate created fiasco. I'm astounded by how many people missed this.

    Understanding the law and political miscalculation does not require the reading of articles.


    OK talex, whatever. (none / 0) (#58)
    by andgarden on Wed Jan 07, 2009 at 10:23:03 AM EST
    talex? (none / 0) (#66)
    by Pepe on Wed Jan 07, 2009 at 11:19:04 AM EST
    You mistakenly brought that up before. I just looked up that poster and found nothing so they must have been here a long time ago. Whatever the case and who ever they were I guess I should applaud them for being able to get under your skin for such a long time even after they departed. That poster really psyched you out didn't they?

    Given the Senate's posture on this (none / 0) (#32)
    by Big Tent Democrat on Wed Jan 07, 2009 at 09:41:19 AM EST
    one wonders why they went through this charade at all.

    Reid is about (5.00 / 2) (#42)
    by Warren Terrer on Wed Jan 07, 2009 at 10:00:13 AM EST
    to capitulate. It's what he does.

    And given his tough statement that Coleman will never sit in the Senate again, I can't shake this uneasy feeling that Coleman will be sworn in by the end of the week.


    It is what they do (none / 0) (#53)
    by andgarden on Wed Jan 07, 2009 at 10:07:00 AM EST
    The day Blago made the appointment, I said he was smart to eff with the Senate Democratic leadership.

    Well, if the simplest answers (none / 0) (#34)
    by dk on Wed Jan 07, 2009 at 09:46:25 AM EST
    are usually the correct ones, I'd think it was good old fashioned desire for power.

    The Democratic leadership (Reid, Obama, whomever) wanted the power to push their their candidate (whoever that turned out to be) through the appointment process.  Blago was not cooperative (and quite possible a crook) and they played chicken.


    They played chicken (5.00 / 1) (#36)
    by jbindc on Wed Jan 07, 2009 at 09:50:46 AM EST
    and lost big time.

    Why is it they found their spines on something like this as opposed, to, oh on FISA or standing up to Bush on something?


    Well, they didn't really find their spines (5.00 / 2) (#43)
    by ruffian on Wed Jan 07, 2009 at 10:01:25 AM EST
    as it turns out. Their bluster is intact however.

    Stupidity (none / 0) (#67)
    by Pepe on Wed Jan 07, 2009 at 11:21:48 AM EST
    That is why they did it.

    Thank goodness for DiFi, of all people, to slap them and "others" back into their senses.


    She signed the letter (none / 0) (#68)
    by Big Tent Democrat on Wed Jan 07, 2009 at 11:22:38 AM EST
    Kind of ridiculous to thank her.

    The letter was discussed yesterday (5.00 / 1) (#72)
    by Pepe on Wed Jan 07, 2009 at 11:51:53 AM EST
    It was clearly a head fake. It didn't work, it wasn't going to work and that was clear from the beginning when Blagojevich didn't resign. At least the Dems showed solidarity (too bad it wasn't on something that mattered instead of something stupid). When the head faked failed DiFi was the first one to have the balls to call BS on it and get things back on track. For that she deserves some props. If it were not for her they and Obama would have stumbled through the rest of the week on this. She saved the day.

    Affect of cave in on Blago impeachment? (none / 0) (#40)
    by Saul on Wed Jan 07, 2009 at 09:59:11 AM EST
    Just wondering since one of the reason to advance the impeachment was to get Quinn to override the Blago appointment but since that is now a moot point will this now cave in the impeachment of Blago?

    Great question (none / 0) (#44)
    by Big Tent Democrat on Wed Jan 07, 2009 at 10:02:24 AM EST
    I think the impeachment of Blago becomes imperative now.

    Would not suprise me at all (none / 0) (#46)
    by ruffian on Wed Jan 07, 2009 at 10:03:26 AM EST
    the appetite for impeachment seemed rather weak to me, despite the supposed fast tracking in the last couple of days.

    If and/or when (5.00 / 1) (#60)
    by KeysDan on Wed Jan 07, 2009 at 10:31:55 AM EST
    (most likely the latter) Blagojevich is impeached/convicted and Pat Quinn becomes governor, Quinn may affirm and support the appointment of Burris so as to politically tidy-up Burris as senator, while maintaining disapproval of Blago's tainted process. Nothing more lost, and maybe something gained in some quarters.