The notion that the Democrats can refuse to seat Roland Burris out of hand is, at best, constitutionally dodgy. This is because of the Supreme Court's 1967 Powell v McCormack decision, in which it ruled that the Congress's power to judge the qualifications of its members is expressly limited to the conditions mentioned in the Constitution (e.g. age, residency, and U.S. Citizenship). If the Congress wants to deny membership for any other reason, it has another power, which is expulsion. Although the power of expulsion is much broader than the power of exclusion, it comes with a higher price tag: two-thirds of the Senate must vote to expel one of its members rather than a simple majority.

Given this, Reid and the Democrats have essentially three strategies they could pursue if and when Burris's name comes before the Senate Chamber:

1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.
2) Attempt to expel Burris after seating him.
3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.

1) Attempt to exclude Burris by majority vote, almost certainly inviting a court challenge.

Reid's language about refusing to seat Burris seems to be an invocation of Article 1, Section 5 of the Constitution, which holds that “Each House shall be the judge of the elections, returns and qualifications of its own members.” In the case of Burris, however, there was no election in play (rather, he was appointed), so there are no questions about elections or returns – and McCormack holds that the Congress's ability to judge the qualifications of its members is limited to circumstances that don't pertain in the case of Burris.

Still, the Senate could hold a vote and decline to seat Burris, and take their chances in court. Then, Burris (or Blagojevich?) would sue, probably also seeking an injunction that required the Senate to seat Burris until a ruling by th court.

Reid would seem to be a longshot to win such a lawsuit, since McCormack speaks fairly explicitly to the issue at hand, but it's possible that he could find some sort of clever argument or that the Court would refuse to take the case — it's a different court than it was in 1967. Or Burris, embarrassed by the whole thing, could stand down, although that seems unlikely since Burris has lost more elections than Lyndon LaRouche and doesn't seem the type to be easily deterred.

More likely, though, this would succeed only in delaying the inevitable for several weeks.

2) Attempt to expel Burris after seating him.

Here, the Senate would be on much firmer Constitutional ground. But the power of expulsion has been used very judiciously — no Senator has been expelled since the Civil War, although several (such as Bob Packwood) have resigned in the face of possible expulsion. And Burris himself has not been accused of any misconduct; the Senate has never before attempted to expel a member under such circumstances. Achieving a two-thirds majority, therefore, might not be easy. There is also a decent chance that an expulsion could trigger a court challenge, although the courts have interpreted the Senate's powers of expulsion to be very broad.

3) Bluff at either of the above, but with the ultimate expectation that Burris will be seated.

The difference here is that Reid would make a show of trying to exclude Burris for the cameras, but would not really try and whip votes. Perhaps the Senate Democrats could thereafter vote to exclude Burris from their caucus, something they have complete discretion over, but which wouldn't have much impact with the Democrats firmly in control of the floor.

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Of these choices, it seems like the first is probably the Democrats' best bet. This way, Reid and the Senate Democrats won't appear to have broken their promise to exclude Burris; instead they'll claim that their hands have been tied by the courts. But, they'll still get their 58th (or 59th) Democratic senator.

Three weeks after being arrested by federal officials for trying to sell the U.S. Senate seat vacated by President-elect Barack Obama, Blagojevich has thumbed his nose at the political establishment by going forward and naming former state attorney general Roland Burris as his choice to fill the remaining two years of Obama's term.

Talk about chutzpah.

Members of the Illinois General Assembly have already said they will not seat the person Blagojevich chose, but he didn't care one lick. He now has put them in a position to deny an African American political legend in the state the senatorial position.

A number of African Americans in the state were making lots of noise that someone who looks like them should replace Obama. Now that he is gone, there are no African Americans serving in the U.S. Senate.

Blagojevich is now forcing the Illinois senate and the state's secretary of state to deny Burris the seat, thus taking the heat off of him and putting it on them.

For instance, Secretary of State Jesse White has said he won't certify the selection of Burris. OK, fine. Does he have a legal leg to stand on? If he blocks Burris, he is risking a lawsuit that could get messy.

The Senate can say no to Burris, but then are putting themselves in a position of catching lots of heat from African Americans, who are a HUGE constituency in the state. If they say no to Burris and yes to a white candidate, you can bank on black folks being in an uproar.**