# Senator Kirk and the Constitutionality of Expedient Law Switching **URL:** \ **Category:** Great Debates\ **Created:** [October 7, 2009, 7:07pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967 "2009-10-07T19:07:26Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [October 8, 2009, 9:13pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/41 "2009-10-08T21:13:57Z")
Well, at this rate we only need to wait a couple of years and they’ll change the law again, right? ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [October 8, 2009, 10:57pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/42 "2009-10-08T22:57:00Z")
> [@Chronos](#): > > The really stupid part of this whole thing is that the Massachusetts legislature could have gotten this right in the first place. Back in the Romney administration, it would have been perfectly reasonable for them to have passed a law requiring the replacement be chosen from a shortlist provided by the outgoing Senator’s party. They could have then just dusted off their hands and left that same law on the books indefinitely, and it would have produced the “correct” outcome then, and now, and a century from now when the Noodlecratic senator resigns while the governor is from the rival Bull Platypus party. It’d be a fair, and transparent, and democratic, and unpoliticized process, that everyone could agree to. But instead they decided to play this silly political game that produces the same outcome, but which puts the entire process under a partisan stink. From what I understand, it was thought that such a system would be in violation of the Massachusetts Constitution. I think it’s questionable whether it would be permissible under the federal Constitution. The Seventeenth Amendment seems designed to only allow the legislature to choose to allow the governor to make an appointment, not to impose any conditions on the choice. [Here’s](http://writ.news.findlaw.com/amar/20081023.html) an old article about the issue (dealing with a law of that sort in Arizona, in the case that McCain would win the Presidential election). ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 8, 2009, 11:34pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/43 "2009-10-08T23:34:25Z")
> [@waterj2](#): > > From what I understand, it was thought that such a system would be in violation of the Massachusetts Constitution. I think it’s questionable whether it would be permissible under the federal Constitution. The Seventeenth Amendment seems designed to only allow the legislature to choose to allow the governor to make an appointment, not to impose any conditions on the choice. [Here’s](http://writ.news.findlaw.com/amar/20081023.html) an old article about the issue (dealing with a law of that sort in Arizona, in the case that McCain would win the Presidential election). This has me confused too. When California passed term-limits, SCOTUS ruled it unconstitutional to apply to Congress basically saying a state cannot restrict the requirements for electing a Federal official beyond what is in the Constitution. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [October 9, 2009, 12:34am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/44 "2009-10-09T00:34:56Z")
I don’t see how it could be against the federal constitution, given that some other states already have similar procedures in place, and the Supreme Court has never given them the smackdown. But if that’s such a big worry, then pass a law that the Governor can appoint a replacement provided that he does so from a shortlist. That way, all the legislature is doing is exercising their power to allow or prohibit the governor from making an appointment; just based on some criterion. It’d still be possible for a governor of the opposite party to refuse to go by the list and thereby leave the seat vacant for a few months, but that’s no worse than what Romney would have done. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [October 9, 2009, 12:53am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/45 "2009-10-09T00:53:34Z")
> [@Mr.Moto](#): > > Well, at this rate we only need to wait a couple of years and they’ll change the law again, right? One would hope so. One would hope that - given their purpose - they would change the law to what seems to be a consensus both on the board and in real life - that the governor of a state should appoint a temporary Senator who belongs to the same party as the vacating Senator. Whether that Senator is then replaced by a special election at a special time, or at the more normal biennial election is irrelevant to me. **waterj2** , to the best of my knowledge, the Massachusetts constitution is completely irrelevant to the selection of federal offices, just as term limits in a state constitution do not apply to Representatives or Senators. ---
**Author:** ![muldoonthief](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muldoonthief/32/3188_2.png) [@muldoonthief](https://boards.straightdope.com/u/muldoonthief)\ **Post date:** [October 9, 2009, 2:42pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/46 "2009-10-09T14:42:07Z")
> [@Chronos](#): > > I don’t see how it could be against the federal constitution, given that some other states already have similar procedures in place, and the Supreme Court has never given them the smackdown. But if that’s such a big worry, then pass a law that the Governor can appoint a replacement provided that he does so from a shortlist. That way, all the legislature is doing is exercising their power to allow or prohibit the governor from making an appointment; just based on some criterion. It’d still be possible for a governor of the opposite party to refuse to go by the list and thereby leave the seat vacant for a few months, but that’s no worse than what Romney would have done. But has it happened in any of those states where a Senator or Rep left office, and the governor was of a different party? Don’t you have to wait until the circumstances occur before you can challenge the constitutionality of a law? It could just be that no one with standing to bring a case (i.e. a governor with restricted powers) has done so. ETA: A few weeks ago, the MA press was reporting that putting such a restriction in place was debated in the statehouse, but it was rejected because it might be unconstitutional. Whether this was true, or whether they didn’t want to admit that this was a purely partisan play 5 years ago and now, I don’t know. I do believe that no Democratic state senator or rep has admitted that this was just partisan politics - they’ve always claimed they’re just interested in advancing democracy. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [October 9, 2009, 2:55pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/47 "2009-10-09T14:55:28Z")
How can any law restricting the appointment of anyone based on party affiliation be constitutional? Parties are nowhere to be found in the Constitution. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 9, 2009, 5:28pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/48 "2009-10-09T17:28:02Z")
> [@BobLibDem](#): > > How can any law restricting the appointment of anyone based on party affiliation be constitutional? Parties are nowhere to be found in the Constitution. That doesn’t necessarily impair suc a law from being created. The question to be answered is not, “Are political parties mentioned in the Constitution?” No, the question is: “Does a law requiring replacement senators be members of a particular political party run afoul of the Constitution?” And, specifically, which part of the Constitution is offended by the law… ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [October 9, 2009, 6:26pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/49 "2009-10-09T18:26:18Z")
> [@Bricker](#): > > No, the question is: “Does a law requiring replacement senators be members of a particular political party run afoul of the Constitution?” And, specifically, which part of the Constitution is offended by the law… Article 1, Section 3, which sets the qualifications to be a member of the Senate? It exceeds the power of a state to impose additional requirements as to who can be a member beyond those set out by the Constitution. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [October 10, 2009, 4:26am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/50 "2009-10-10T04:26:51Z")
[QUOTE=17th Amendment] 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: Provided, 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. [/QUOTE] So does the Constitution allow the legislature to restrict who the executive as to who (s)he can appoint? I think not, that once the legislature leaves it up to the executive, he gets to choose whomever he wants. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [October 11, 2009, 8:18pm UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/51 "2009-10-11T20:18:25Z")
> [@Bricker](#): > > He goes on to ask what the real law is in Massachusetts, and proposes two hypotheticals: > > [ul] > [li]Democratic but not Republican governors can appoint interim Senators to fill vacancies pending a special election[/li][li]When the governor is a member of the same political party as a Senator whose seat has become vacant, the governor can appoint an interim Senator to fill a vacancy pending a special election.[/li][/ul] > > Dorf suggests that the first interpretation, if true, is a violation of Equal Protection guarantees; the second, he says, is not nearly as problematic. > > I could continue paraphrasing him, but he writes much better than I, and I urge interested readers to simply click and read his post in full. > > But: I think he’s right insofar as interpretation one. And i think that proving it or imposing a judicial remedy is essentially impossible. **Bricker** , the Fourteenth Amendment reads, in relevant part: > [@](#): > > No State shall…deny to any person within its jurisdiction the equal protection of the laws. It would help if you could demonstrate that the _office of the Governor of Massachusetts_ is Constitutionally a ‘person’ with respect to this clause of the Fourteenth Amendment. IANAL, but that seems like a stretch to me. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [October 12, 2009, 1:02am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/52 "2009-10-12T01:02:49Z")
> [@RTFirefly](#): > > It would help if you could demonstrate that the _office of the Governor of Massachusetts_ is Constitutionally a ‘person’ with respect to this clause of the Fourteenth Amendment. IANAL, but that seems like a stretch to me. Do you think this is about the Governor? ISTM that the real aggrieved party is the voters of Massachusetts, particularly those that happen to not be Democrats. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 12, 2009, 1:05am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/53 "2009-10-12T01:05:36Z")
> [@Mr.Moto](#): > > Do you think this is about the Governor? ISTM that the real aggrieved party is the voters of Massachusetts, particularly those that happen to not be Democrats. Losing elections does not render a voter “aggrieved”. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [October 12, 2009, 1:20am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/54 "2009-10-12T01:20:21Z")
> [@Fear\_Itself](#): > > Losing elections does not render a voter “aggrieved”. I agree - but having election law shift for nakedly partisan purposes certainly can. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 12, 2009, 1:26am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/55 "2009-10-12T01:26:28Z")
Why? If they won more elections, they could (and would) shift the law for _their_ own partisan purposes. So long as the law is followed when changing the law, I don’t see anyone as aggrieved. Frustrated maybe; perhaps that will motivate them in the next election. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [October 12, 2009, 1:49am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/56 "2009-10-12T01:49:55Z")
> [@Mr.Moto](#): > > Do you think this is about the Governor? ISTM that the real aggrieved party is the voters of Massachusetts, particularly those that happen to not be Democrats. Would a law that the governor must replace a Senate vacancy with an appointment from the same party soothe you and the aggrieved losers of the last Senatorial election? You know, the law that they have in such places as Utah and Arizona? That’s what I’d support if I still lived in Massachusetts. To pick up on a side debate, I can’t say if such a law is, in fact, constitutional. I can say that no such law has been overturned. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [October 12, 2009, 2:06am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/57 "2009-10-12T02:06:46Z")
> [@Mr.Moto](#): > > I agree - but having election law shift for nakedly partisan purposes certainly can. Wow – it took you nearly nine years to realize it, but congratulations – we now see eye to eye on the 2000 election – at least based on your statement. Kudos on being a mensch and standing up for fairness, after all this time! ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [October 12, 2009, 2:45am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/58 "2009-10-12T02:45:30Z")
> [@Polycarp](#): > > Wow – it took you nearly nine years to realize it, but congratulations – we now see eye to eye on the 2000 election – at least based on your statement. Kudos on being a mensch and standing up for fairness, after all this time! I have always understood why people were pissed off about 2000, even if I didn’t agree with the sentiment. But even with that, I’m not sure this applies here. For better or worse, that election was contested according to the rules in place at the time. That isn’t happening here - the rules are being changed as the process goes forward. ---
**Author:** ![Frank](https://avatars.discourse-cdn.com/v4/letter/f/3d9bf3/32.png) [@Frank](https://boards.straightdope.com/u/Frank)\ **Post date:** [October 12, 2009, 2:51am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/59 "2009-10-12T02:51:26Z")
> [@Mr.Moto](#): > > That isn’t happening here - the rules are being changed as the process goes forward. Leaving that aside, as I agree this is a true statement, who’s aggrieved? Under either the new law or the old law, there will be an election on January 19th. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [October 12, 2009, 3:37am UTC](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967/60 "2009-10-12T03:37:38Z")
> [@Mr.Moto](#): > > That isn’t happening here - the rules are being changed as the process goes forward. But the rules allow for the rules to be changed. I understand that Republicans feel frustrated. But if the law is followed, they are not aggrieved. [Previous page](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967.md?page=2) [Next page](https://boards.straightdope.com/t/senator-kirk-and-the-constitutionality-of-expedient-law-switching/512967.md?page=4)