by William Jacobson, Assoc. Clinical Professor of Law, Cornell Law School
The lawsuit filed by Illinois Attorney General Lisa Madigan to remove Gov. Rod Blagojevich from office had almost no legal or factual basis. Legally, the lawsuit failed to set forth any authority which would warrant the Illinois Supreme Court supplanting the constitutional impeachment process based on a novel interpretation of what "disability" means. Without such authority, AG Madigan essentially asked the Court to take on a political function, contrary to the clear separation of powers requirements of the Illinois Constitution.
Factually, the lawsuit was based on very shaky allegations that the State faced an emergency so dire that the Court should not await the impeachment process. The primary "fact" supporting the emergency claim was that the State was unable to go forward with bond funding due to AG Madigan's inability to certify that Blagojevich was entitled to act on behalf of the State. This lack of funding, it was alleged, would shut down State government unless the Court removed Blagojevich. This, it was asserted, would cause "irreparable harm."
But there was no such emergency. Just one business day later, the State was able to go forward with bond funding. The other alleged emergencies, such as the public's loss of faith in its government, may have been true but did not constitute true emergencies.
If the Court had granted the motion to remove Blagojevich, or had stripped him temporarily of his executive powers, the damage would have been long lasting. In such a scenario, the Court would have created a precedent which would have guaranteed that political opponents would rush to the Court every time a Governor became unpopular, or suspected of political corruption, or ... well you get the picture. The Court would have become nothing more than a pawn in the political game.
The Court wisely chose not to touch this issue by rejecting the motion without explanation. In so doing, the Court avoided an additional danger. By failing to create precedent limiting the circumstances under which the Court could act to remove a Governor, the Court left open the possibility that the Court could act at some time in the future, if there were a true emergency threatening the State. Sometimes it is most wise to say nothing, and the Court acted wisely in this case so as to preserve its power to act in the future.
When people bring frivolous lawsuits, the justice system is damaged. And that is never more true than when the person bringing the suit is the chief legal officer of the State. Fortunately, the Illinois Supreme Court saw the danger and found the most sensible way to prevent irreparable harm to the judiciary and the political process.