Is Blago “disabled”?

He is for the limited purpose of appointing a new Senator. Why not move him aside temporarily until that job is done?

The Constitution of Illinois provides that the state Supreme Court can remove the Governor from office temporarily “If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability.” Lisa Madigan, the state Attorney General, has now asked the Supreme Court to do just that on the grounds that the corruption case against Blagojevich “disables” him from serving.

At first blush, I’m inclined to agree with Ann Althouse that this is a stretch. But in one important respect Blago truly is “disabled”: the Governor of Illinois must appoint a replacement for Barack Obama in the Senate, and Blago, having put the seat up for auction, has disabled himself from making that appointment. Not only would no one with any self-respect take the appointment under these conditions, but whoever was so appointed wouldn’t be seated (or would be expelled at once).

So if I were one of the Illinois Supremes, I might be inclined to grant the motion to make the Lieutenant Governor the Acting Governor for just long enough to name a Senator, after which Blagojevich would resume power until he resigns or is impeached and convicted by the legislature.

Footnote I’m pleased to note that, by contrast with, for example, the case of Tom DeLay, no Democrat has risen to Blago’s defense, or attacked Patrick Fitzgerald the way the Republicans and Red bloggers attacked him for indicting Scooter Libby.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com