A Possible Seventeenth Amendment Conflict Is Looming In Kentucky

Can the Kentucky legislature constrain the Governor's authority to fill a Senate vacancy?

The Seventeenth Amendment provides that each state shall have two senators, elected through popular elections. But what if a vacancy arises through death, resignation, or expulsion? The Seventeenth Amendment provides a two-part process. First, "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies." And what happens before that election is held? Second, "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."

It is clear enough that a state legislature is not required to allow a Governor (that is, the "executive") to make a temporary appointment. According to Pew Research, forty-six states have granted such authority. Once the state legislature vests the Governor with that power, can the state legislature constrain the Governor's selection? Again, according to Pew, eleven of those states impose certain constraints on the selection. Specifically, the Governor must select a nominee from the previous senator's political party. This approach makes sense from a pragmatic perspective. If the people elected a Republican/Democrat Senator for a six-year term, the people should be represented by a Republican/Democrat during a temporary vacancy.

Kentucky is one such state. Senate Bill 228 establishes an intricate framework for how a Senate vacancy can be filled:

The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under . . .   The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission.

The Republican-controlled legislature passed the bill over the veto of Governor Andy Beshear, a Democrat. The veto message highlighted the federal constitutional objections to the bill:

I am vetoing Senate Bill 228 because it improperly and unconstitutionally restricts the Governor's power to fill vacancies in the United States Senate. The purpose of the Seventeenth Amendment to the United States Constitution was to remove the power to select United States Senators from political party bosses. Senate Bill 228 violates the very purpose of this Amendment by returning that power to political parties in the case of a vacancy. . . . The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies, and the legislature may not impose an additional qualification on who the Governor may appoint beyond the qualifications set for a United States Senator set forth in the Constitution.

Beshear also identified a concern under the state constitution:

The bill also is unconstitutional under the Kentucky Constitution. Section 152 of the state constitution provides that the Governor "shall" fill by appointment vacancies in offices for the State at large. No conditions, qualifications, or limits are placed on that appointment power.

When the last was enacted in 2021, Professor Vik Amar highlighted constitutional objections, based on a law review article he published in 2008. (Sandy Levinson wrote on the issue as well.)

This issue, however, may not remain academic. Mitch McConnell, the longtime Senator from Kentucky, has had health issues. The Republican leader's term will conclude in January 2027. And the Democratic Governor's term will conclude in December 2023. If a vacancy arises over the next five months, or longer if Beshear is re-elected, Senate Bill 228 would be put to the test.

Already, a prominent Democrat attorney in Kentucky said that Beshear may not follow the law, consistent with his veto message. There are two possible paths. First, Beshear could simply ignore the list, and pick whomever he wants. Second, Beshear could go on offense and seek some sort of declaration that the statute is unconstitutional.

"Beshear either says, 'hey, Republican Party, thank you for your list, but I'm appointing whoever I want' and then that immediately gets challenged in court, or you could see Beshear taking the route of filing a lawsuit," Abate said. "I mean, he's got the guts to defy it," Abate added.

This decision can have national implications, as McConnell is the leader of the Republican caucus. (The Washington Times offered some commentary.)

Here, I will not opine on the Seventeenth Amendment issue. (I will do so later). Rather, I want to opine on the procedural aspects of the process.

First, Beshear can simply ignore the list, and appoint whomever he wants. We could expect prompt litigation from members of the state executive committee. But what remedy would the committee seek? Beshear would have already fulfilled his authority under the Seventeenth Amendment and selected a temporary Senator. Beshear could make that appointment quietly, as soon as a vacancy arises. Before any litigation is filed, the Senator can appear at the Capitol and present his credentials. At that point, I am not certain that a judge, whether federal or state, could undo the appointment. Whether the Senator is recognized would seem to be a political question under Baker v. Carr. The United States Senate could decline to recognize the Senator, perhaps due to the Governor's failure to comply with state law. But the Senators could determine, like Governor Beshear, that the statute itself is unconstitutional. As a matter of real politic, I suspect every Democratic Senator would gladly welcome a Democratic replacement for McConnell.

For the second option, the Governor could sue the executive committee, and argue that the constraint violates the federal and state constitutions. This suit can be brought in federal court or state court. In federal court, at least, such a suit would seem to be not-yet-ripe prior to a vacancy arising. The Governor would probably have to wait until the executive committee provides a list of names. The rules may be different in state court. If the Governor sues in state court, and there is only a claim under the state constitution, I don't think the case could be removed to federal court under the Mottley rule.

There is a third option. Members of the executive committee can go on offense, and seek a declaration that the Governor is bound by the state law before any vacancy arises. Such a suit would not-yet-be-ripe in federal court, but it could work in state court. Again, I don't profess to be an expert on Kentucky procedure. The upshot of this latter approach would be to avoid a stealth selection, which cannot be undone. The downside, of course, is the morbidity of the topic. Senator McConnell is still serving, and it is unsettling to even discuss a potential future vacancy. I know all too well that people were unhappy with a post I wrote about Chief Justice Roberts being unable to preside at President Trump's impeachment. But it is far better to talk about a succession crisis before it happens, not during the process.

I hope this issue remains an academic curiosity.

Comments

[Magister]

It's not clear that the upside for Democrats is that great; the Republican House is crazy, and this would just make them worse, so no worthwhile laws would get passed by a marginally larger Democratic caucus in the Senate. Maybe they could act on things that are Senate only, such as appointments. And it might give Republicans an issue to take advantage of in the subsequent special election or elsewhere. But the mere threat of doing these things may make the Republican list more moderate (hat tip Nimzowitsch).

[Darth Buckeye]

Yes. If the Dems held a majority in the House, the Senate would have an easier time abolishing the filibuster and enacting a dream list of legislation. As it is, a game like that would probably backfire in the special election to fill McConnell's seat and in the governor's reelection race.

[Dr. Ed 2]

No -- your "crazy" is my "idealistic" and the thing you are missing is the budget. A pissed-off Republican House might play by the same rules and include "poison pills" in the budget that the Dems in the Senate would never accept, shutting down the government indefinitely.

And the Senate can filibuster -- and angry Senators can filibuster on ANYTHING. All you need is a dozen or so to do this round the clock and then NOTHING gets done. It's happened in the past...

[Magister]

The filibuster hangs by a thread; one more Democratic senator might have doomed it (Manchin and Sinema may be all that prevents that currently). Just changing the rules to require 41 filibustering senators to avoid cloture would go a long way.

The House Republicans might try to shut down the government indefinitely; Republicans have started down that road before but not managed to blame the Democrats for it. And recently they couldn't get together on much in the debt ceiling showdown. Also, you yourself are crazy, Dr. Ed 2, even if you want to call yourself "idealistic".

[Dr. Ed 2]

I seem to remember the Dems loving the filibuster 20 years ago when it restrained Bush 43.

And who was the last SCOTUS nominee with 60 votes?

[Magister]

For the Republicans, the filibuster is primarily a tool for stopping government from doing anything, and they'll discard it when they need to get something done (nuclear option for Neil Gorsuch). Democrats also have used it as a parliamentary tactic, but they don't try to paralyze the federal government. When was the last time Democrats forced a shutdown of the federal government?

Kagan was the last nominee to get 60 votes for confirmation. Yes, you are correct that Democrats were right to be angered by the treatment of Merrick Garland. Who was the last Supreme Court nominee before Garland on whom the Senate declined to vote?

[MatthewSlyfield]

“Who was the last Supreme Court nominee before Garland on whom the Senate declined to vote?”

https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States

The list can be sorted by outcome.

Nine Supreme Court Justice nominations lapsed without any action taken by the Senate. Most of the lapsed nominations were resubmitted during the next Congress and got a floor vote, though a few were withdrawn after being resubmitted. Four nominations have lapsed without being resubmitted.

Excluding Garland, the most resent lapsed nomination that wasn’t resubmitted was Henry Stanbery in 1866

[Magister]

Yes, I knew that, from the same webpage; nominated by Andrew Johnson. It was a rhetorical question to mock Dr. Ed 2.

[TwelveInchPianist]

“they’ll discard it when they need to get something done (nuclear option for Neil Gorsuch).”

Huh? Gorsuch was retaliation for the Dem’s nuking the filibuster for lower court judges and executive branch nominees.

Reed was told that if he did that, he’d be effectively nuking the filibuster for SCOTUS justices as well, and he chose to do it anyway.

It was the Dems that discarded the filibuster when they needed to get something done, not the Republicans.

[Magister]

The Democrats responded to unprecedented levels of Republican filibustering of Obama nominees. The Republicans did that because Obama had the temerity to be elected. Twice. Obama was able to do that because the Republicans had previously lied the country into a disastrous war and crashed the economy. The Republicans did that because that's the sort of thing they do, in the service of maintaining their power and cutting taxes for rich people and not even trying to run the country well. But I'm sure Republicans blame it on Democrats, somehow.

Right wing rule 1: the Republicans are never to blame for anything bad; they can only be forced to do bad things by Democrats.

[TwelveInchPianist]

"The Democrats responded to unprecedented levels of Republican filibustering of Obama nominees. "

So they discarded the filibuster when they wanted to get something done.

The Republicans, OTOH, were merely acting according to the new norm that was set when the Dems nuked the filibuster.

[David Nieporent]

And who was the last SCOTUS nominee with 60 votes?

Kagan.

[Rev. O.T. Medal]

Magister is right, So long as the Rs hold the house, how Kentucky appoints an interim Senator raises only academic questions (albeit interesting ones). Because the Ds do not control the House, a Democratic Senate, with or without a temporary additional vote, cannot pass any laws and there already are enough Ds in the Senate to confirm judicial nominations or presidential appointees.

The stakes will be much higher if, after the 2024 election, Beshear retains the KY governorship, Biden retains the presidency, the Ds retake the house, and and MM dies at a time when the composition of the Senate is such that, an additional Democratic vote -- even for a few moths -- would result in elimination of the filibuster and passage of a stack of bills already teed up by he House or significant structural change (e.g., DC statehood) . I doubt we will see that particular scenario, though.

[Tilted]

"The Seventeenth Amendment does not authorize legislatures to direct how the Governor makes an appointment to fill vacancies..."

It seems to me that the bill in question, more so than it directs how the governor makes such appointments, grants the power to make such appointments to "the state executive committee of the same political party as the Senator who held the vacant seat to be filled."

That committee can not only pick the 3 finalists, it can effectively pick the actual appointee. What if it picked 2 people who wouldn't even qualify to be Senator? Or what if it picked 2 convicted, and still incarcerated, child abusers along with the person it actually wanted? For all intents and purposes, under this law, it would get to chose the appointee if it was so inclined.

I think, if the Seventeenth Amendment was meant to give state legislatures discretion to grant someone other than the state executive the effective power to make such appointments, it would have used substantially different words than the ones it uses - or arranged the ones it uses substantially differently.

[LawTalkingGuy]

Your hypos sound like they would support an as-applied challenge if the committee actually did that rather than a facial challenge to the statute.

[bernard11]

But you don't have to go as far as tilted's examples.

I'm confident the committee could find two nominees who were at least somewhat plausible, but who they knew the governor would never accept.

List two of the most extreme members of the legislature, for example.

Anyway, this sort of reading determinancy into ambiguity is an interesting game for constitutional lawyers, I guess, but the final resolution of the question is going to look like the result of a coin flip to me.

[LawTalkingGuy]

The arguments in favor of the governor’s discretion strike me as very structurally similar to the ISL arguments, but in this case, regarding the Governor rather than the legislature. It presupposes that the US Constitution can create power unrestricted by state constitutions or state laws in a state office that only exists due to a state constitution! Basically an independent governor doctrine for senate appointments. But just like the state legislature can be restrained by state constitutions (or prior laws) in matters of federal election law, a governor can also be restrained by that same system. Indeed, in governors, it’s particularly interesting because there is by no means a requirement for states to have one! PA didn’t have one until 1790.

[Dr. Ed 2]

I think all three would have to be qualified -- much like a DA must be a licensed attorney.

[Kazinski]

Once the state constitution says the governor can appoint a successor then the legislators hands are tied.

Their next play, assuming there is nothing contrary in the state constitution, is to drastically accelerate the special election to fill the seat.

[Michael P]

Are US Senators considered state officers? By its explicit and repeated text, Article 152 of the state constitution only provides for appointing "city, town, county, district or State officers" -- and it does not apply to the legislature. Just as the federal constitution allows the state legislature to prescribe the manner for the state executive to appoint an interim US Senator, it seems that the governor's state constitutional argument is based on a strained and unnatural reading of the actual constitution.

[Krayt]

If your party wants a lackey to help rubber stamp anything the party does nationally, it sounds like three idiots is just what the doctor ordered.

[LawTalkingGuy]

I don’t see the federal constitutional issue here. “May empower” seems to give the legislature discretion on how to do this, and I don’t buy the Amar argument that “empower” is simply an either or proposition. You can empower someone a little or a lot. Here, the legislature is empowering the governor only a little rather than a lot. But it is still empowering him to do something the legislature could otherwise say he can’t do at all. Maybe if they mandated he could only appoint one person recommended by a committee i would see the problem, but since he’s given a choice I don’t.

[Magister]

But if the legislature can empower only a little, can they empower the governor to only pick a single candidate put forward by the party that held the seat before the vacancy? Could they also compel the governor to make that single choice, in which case the governor has no real power over the appointment? At the very least, the governor should be able to refuse to make such an appointment, which gives them some negotiating power. But the Kentucky law requires the governor to make an appointment within 21 days.

Also, has the state legislature improperly delegated authority (its own or the governor's) to the political party? (E.g., if the senator were from a third party not represented in the legislature or holding the governorship, unlikely as that scenario is. In any case, they are giving the authority to the state executive committee of the former Senator's party to state whether candidates are real members of their party - I imagine otherwise the governor could find some Democrat who has registered as a Republican.)

Beshear's most practical course is to try to get a more moderate Republican and/or one least likely to run in the special election; refusing any compromise alone might make the Republican look bad to voters in the special election, and the threat of litigation could be part of the pressure to compromise. Litigating preemptively or ignoring the law entirely would risk making Beshear and the Democrats look bad, with little to gain by a temporary appointment.

[Allutz]

Why not. The governor can always decline and leave the seat vacant, leaving him no worse off than if the legislature declined to empower him at all.

[y81]

Another possibility is that McConnell would coordinate with state Republican authorities, and they could pass legislation stippling the governor of all appointment power before McConnell resigns. If a Republican wins the next gubernatorial election, they can change back.

[David Nieporent]

If a legislature strips the governor of all appointment power — which it can certainly do — then the seat remains vacant until the special election fills it. That doesn't seem overly desirable to the GOP.

[Brett Bellmore]

True. Their best option would actually be a crash election, not leaving the seat vacant.

[y81]

Vacant until the next election is a lot better than having a Democrat in office, who would (i) free the Senate Democrats from dependence on Manchin and Sinema and (ii) stand for re-election with the advantages of incumbency.

[F.D. Wolf]

One may recall that in 2004, the Massachusetts legislature repealed the law allowing the governor to appoint a temporary replacement in the Senate so that Republican governor Mitt Romney would not be able to appoint a successor to Sen. John Kerry should Kerry have won the presidential election. In 2009, after the death of Sen. Ted Kennedy, the legislature re-instated the governor's power to appoint a Senator.

I am amused by the line, "he's got the guts to defy it," regarding Gov. Brashear and the law. I doubt if the political parties were reversed that willingness to defy a law and precipitate a constitutional crisis would be framed as an act of courage. As commenter Magister notes, it may not be worth it. It's not as if an appointment would flip the Senate, which the Democrats already control.

As for the constitutionality of the issue, I believe the Court (assuming it had jurisdiction to hear such a case) would essentially follow Chiafalo v. Washington (2020), the faithless elector case in which it upheld state laws requiring presidential electors to vote for the candidate that won the state. Nothing in the Constitution specifically allowed states to do that, but nothing prohibited it either. Likewise, here, nothing in the Constitution says the appointment power must be "all or nothing."

[Dan Schiavetta]

Another Democrat in the Senate would be huge, since they wouldn’t need Manchin any more.

IIRC 2004 was the only time Democrats tried something that Republicans are now in the habit of — changing the law so as to deny powers to an opposite-party governor — and they lived to regret it.

[F.D. Wolf]

You may view it as "huge" from your perspective, but Gov. Beshear, from his perspective, may not view a fight (that he might not even win) for one additional Democrat in the U.S. Senate for a few months as worth sacrificing his name, reputation, and political career within his state.

[Dan Schiavetta]

Good point. Perhaps he will appoint a Manchin clone, or the most moderate Republican he can find.

[Dr. Ed 2]

[Dr. Ed 2]

Not exactly -- see: https://en.wikipedia.org/wiki/Paul_G._Kirk#U.S._Senate

Memory is that the 2004 law mandated a special election in 90 days but the Governor could appoint an interim replacement, who could, of course, run for the rest of the rest of the term in the special election. I'm trusting wiki because I honestly don't remember all the details.

What happened is Gov Deval Patrick (D) appointed Paul Kirk (D) to the interim seat (for 4 months), with the Special Election in January of 2010. In Massachusetts...

It was a nasty day, snow north of the MassPike (I-90) and freezing rain south of it, and Birkenstocks not doing particularly well in either. Hence Scott Brown (R) won and served two years.

[the questing vole]

The legal/constitutional questions are quite interesting, but the political situation in Kentucky would certainly lead one to suspect that Beshear won't attempt to challenge this. Kentucky has become more and more a populist Trump-style state (like its neighbor West Virginia), and appointing or attempting to appoint a Democrat to a Senate seat would be political suicide for Beshear. Beshear is a bit like Manchin was a few years ago. He is still popular within the state, but he's on the razor's edge because of the crazed leftism of the national party.

[Rev. Arthur L. Kirkland]

Kentucky has become more and more a populist Trump-style state (like its neighbor West Virginia)

You are right about the resemblance:

STATES RANKED BY EDUCATIONAL ATTAINMENT
(includes territories; 52 jurisdictions ranked)

HIGH SCHOOL DIPLOMA
Kentucky 40
West Virginia 44

COLLEGE DEGREE
Kentucky 48
West Virginia 52

ADVANCED DEGREE
Kentucky 37
West Virginia 44

MOST REPUBLICAN STATES
Kentucky 7
West Virginia 2

FEDERAL DEPENDENCY
Kentucky 5
West Virginia 2

Kentucky and West Virginia: Two deplorable peas in a parasitic pod.

[Bob from Ohio]

Just impeach and remove him.

Overwhelming GOP majorities in both houses.

[Krychek_2]

What would be his high crimes and misdemeanors? Being a Democrat who won an election in Kentucky?

Also, does anyone know what his re-election prospects are anyway? IIRC he won on a fluke, and if he’s not getting re-elected anyway he may not care about the political ramifications.

Go for it. It’s not like Mitch McConnell would appoint a Democrat if the shoe were on the other foot.

[Bored Lawyer]

"What would be his high crimes and misdemeanors?"

Is that the standard in Kentucky?

In any case, ignoring state law seems to be a fair grounds for impeaching a governor.

[Krychek_2]

I agree with the argument that the state law is unconstitutional. And if he appointed himself to the Senate it would put him beyond the power to impeach.

[Dr. Ed 2]

But then the KY AG could bring obstruction of justice charges.

Just like is being done to Trump.

[Voize]

The KY standard for impeachment is “any misdemeanors in office”.

[LawTalkingGuy]

This is probably the most appropriate remedy.

[Mwinger]

How about this fourth option: on receiving a list of acceptable persons, the governor says, "Sorry, none of these is acceptable. Try again." A new list would still be limited to people of the same party, but there could be some compromise (supposing there is any interest in compromising between political parties).

[Moderation4ever]

I was kind of wonder about this type of an option. What if the Democratic Governor appointed a Republican, but not one with the Legislatures approval. One likely to be more moderate and willing to work with the Governor. Would Republicans take this to court?

[freedom121]

Talk about jumping the gun. As far as I know, McConnell is still alive. That gives the Kentucky legislature time to
1. repeal the authorization for the governor to appoint a temporary senator
2. impeach and remove the governor if they feel in the mood.

If a Republican wins the next election, the legislature can restore the ability to appoint a temporary replacement.
This would keep the seat in Republican hands while the lawyers sort out what constraints the legislature can put on the governor.

If I were a Kentucky legislator, I would repeal the law right now, to prevent the governor from immediately appointing AOC as the next senator.

[Dr. Ed 2]

it also may not have been as serious as it seemed -- it could have been (and likely was) a TIA -- see: https://en.wikipedia.org/wiki/Transient_ischemic_attack

A BIG TIME warning sign, but the fact that he could talk normally a few minutes later makes me think TIA.

Remember that even if he has a full-blown stroke, he STILL is a US Senator. There are THREE Democrat Senators who have had strokes -- John Fetterman, Ben Ray Luján, and Chris Van Hollen -- so before we start deciding about the balance of power....

[Brett Bellmore]

“As far as I know, McConnell is still alive. ”

And decidedly more functional than Feinstein, who has actually given her kids power of attorney to control her own finances, because she’s not competent to do it herself anymore.

[Mr. Bumble]

Not quite Brett. The issue revolves around the estate of her late husband and an inheritance fight. That's a lot to handle.

[David Nieporent]

Brett, always repeating talking points he doesn't understand.

First, he gets the facts wrong. Feinstein gave power of attorney to her kid (not "kids") regarding a legal dispute, not over her finances.

Second, he misunderstands the import of those facts. Giving someone power of attorney — despite what right wing figures are gloating over — does not mean admitting that one is incompetent or relinquishing one's own authority to make decisions.

Feinstein should retire, yesterday. But this just doesn't have the significance he thinks.

[Noscitur a sociis]

This decision can have national implications, as McConnell is the leader of the Republican caucus.

Why?

[Dr. Ed 2]

I was going to say the same thing.

Kennedy wasn't an official leader because of the Waitress Sandwich incidents (etc.) but he definitely was a leader in the Senate.

Paul Kirk neither inherited Kennedy's positions nor even his staff. He *might* have inherited Kennedy's office, but I'm not even sure about that.

[bernard11]

As far as McConnell's position is concerned, the only national implication would be that the Republicans get a different Minority Leader, who may not be as skilled as McConnell at parliamentary maneuver. But that would be a consequence of McConnell's resignation, not the decision about a replacement.

The other issue is whether a D or an R gets the seat, but again that has nothing to do with McConnell's position.

[jdgalt1]

Article I, Section 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, ..." Once the governor appoints someone, I think this puts any challenge in the Senate's hands and that no court would have jurisdiction.

[LawTalkingGuy]

This is a good point. But is there any wiggle room in the time it would take to bring the commission to the senate for a state or federal court to declare it invalid or order the holder to refrain from presenting it to the senate to be seated?

[F.D. Wolf]

Barack Obama resigned his Senate seat on November 16, 2008, after winning the presidential election. On December 30, Illinois Gov. Rod Blagojevich, who had just been indicted on corruption charges, appointed Roland Burris to succeed Obama. Ill. Secretary of State Jesse White refused to sign the Senate certificate form. When Burris arrived in Washington on January 6, 2009, to claim his seat, the Senate refused to seat him. On January 9, the Illinois Supreme Court ruled that White must sign the certificate. Burris v. White, 901 N.E.2d 895 (Ill. 2009). Burris was sworn in on January 15.

So, while the Senate would have the final say, it will likely defer to state law, including state court decisions. In practical terms, if Gov. Bashear were to appoint someone not in accordance with state law, I suspect this would quickly be challenged in state court, and that the United States Senate would probably defer to any state court decision.

[Neugierige]

This would be a backdoor way to overturn Thornton (1995)

Exclude a term limited member of Congress from the ballot. If he sues in federal court and they make you put him on, put a second race on the ballot, just like the first, except that the runner up of the party primary is on, instead of the guy who sued.

When the election happens, certify the winner of the second race. Any challenge would have to be taken up on Capitol Hill.

It would be best to do this when first when the house in question is controlled by Republicans, for three reasons:
First, Republican-type jurists have been the most supportive of the idea that nothing stops a state from imposing limits. Second, Republicans have been the more favorable party towards term limits as a matter of policy. Third, most of the staunch defenders of departmentalism have been Republican.
(Though Democrats have been turning departmentalist lately, too.)

[Neugierige]

I meant this as a reply to jdgalt1. Damn Computer.

Having two people contesting a seat rather than one (possibly unqualified) person would make all the difference.

[not guilty]

Professor Blackmun curiously omits discussion of Article I, Section 5.

Suppose Governor Beshear appoints a Democrat, and the Senate seats him/her. I think that review of action would be justiciable in federal court on the authority of Powell v. McCormack, 395 U.S. 486, 516-22 (1969). I am not sure, however, what potential plaintiff(s) would have Article III standing to sue.

[Neugierige]

The supreme court didn't have jurisdiction in Powell v McCormack, which, by the time it was announced, had basically become a case about back-pay.

It is both quite likely today's SCOTUS would refuse to make the same mistake, and that the House or Senate would simply ignore the ruling.

[bevis the lumberjack]

This is all wonderful fabulism, but McConnell isn’t going anywhere. Unless the Reaper calls. Yeah, he’s not in great shape, but Dianne Feinstein is still there. By comparison to the Feinstein of the last few years. McConnell seems as energetic as Tigger.

[Voize]

Beshear shouldn't appoint a Democrat even if he has the legal authority to do so, although I have to admit the irony of doing it to McConnell would be delicious.

[Rev. Arthur L. Kirkland]

I agree on both counts.

The better way to deal with Sen. McConnell and Kentucky would be to diminish the federal subsidies.

[Allutz]

That largely flow to Democrats in Kentucky? That's a bold move Cotton, lets see if it pays off.

[Kleppe]

I think governors ought to select replacement senators from among the same party as the predecessor, mostly because it would likely disincentive political violence (i.e., an extremist could not achieve a change in the balance of power by assassinating an incumbent). That being said, I'm not convinced this should or even could be mandated legally. Maybe a newly elected governor should promise to adopt such a policy.

[Krayt]

So many loud talking heads on this issue, who don't even know what their predetermined positions they angrily believe since birth, dammit, are, yet.

[The Turtle Dove]

What Amar the Younger's Justia piece seems to miss is that both state and federal law can serve as sources of positive obligation here. The legislatures' "must appoint" might be valid under Kentucky law, as the "may" of the federal amendment is permissive, i.e., it simply allows the state's constitutional mechanism to function.

This opens a larger question, one which might prove dispositive as to the validity of the state's legislature's terna (Roman term for list of three names). Is the question of whether the state legislature has the authority to do this a matter of state (Commonwealth) or federal law? The Amendment allows the legislature to "empower the executive to make temporary appointments," so any power vested in the state executive to do that sort of thing passes without residue through the screen of review under the Federal Constitution. But the state, according to its own constitution, might validly require a supermajority vote for that, or prohibit vesting such power in a lame duck executive, or an executive subject to impeachment, or any executive who took office under succession as opposed to election. And the question of whether such restrictions would be valid would be a matter for the state's highest court, in interpreting the powers vested by the state constitution, as a matter of state law.

So, short form: federal (may vest) >> state legislature (must appoint) >> executive federal constitutional claim that his or her agency is being constrained, which speaks to the role of the Kentucky governor as Elector of Frankfurt, not the federal appointer under XVII, as the vesting happens by state agency, merely permitted by XVII.

The only requirement from Philadelphia, et seq., is that everything happen under the auspices of a republican (small r) government.

Top of the head, likely wrong, don't rely.

Mr. D.

[Mike45]

It's amazing how flexible politicians are in interpreting constitutional matters. Since the 17th amendment doesn't provide any limitations on the power to appoint interim senators so any restrictions are unconstitutional, yet the 2nd amendment doesn't limit the government's power to regulate the types times places and manor of the right to keep and bear arms.
The constant attacks on the 2nd have provided plenty of precedent for the legislature's "reasonable restrictions" on the powers of the executive.

[Mr. Bumble]

No fan of McConnell but he seems more alive than dead, especially when compared to Feinstein and Fedderman.

[Anon]

I, for one, find such unpressuming moments of a man of such high office quite refreshing.

[sparkstable]

If, as someone said above, the KY Const. consistently refers to state level jobs as opposed to federal state-wide jobs for executive appointment in the case of vacancies then the gov is SOL.

The legislature MAY vest the power to appoint. It leaves it up to the state leg to decide if/when they want to do this. They decided they will vest such power under certain codlnditions, those being constraints on the Exec. The Exec has no legal claim to the power absent the legislature's pleasure. Nothing dictates they have to give the gov such power. They could just say "Nope... you get to call an election and that's it. We will go without a Senator in the meantime."

If the gov acts outside of the terms the leg gave for vesting the appointment power the he is breaking the law. The US Constitution doesn't speak to this at all. The state leg can't appoint anyone so even if they try to go to the extreme and appoint someone themselves... they would be out of step because the 17A has taken that power from them.

The options are either vacancy until election or appointment on the leg's terms.

[Moderation4ever]

This is of course an academic exercise as Senator McConnell is very much alive and unlikely to resign.