Continuity of Government: Who's on Deck?

EXERCISES IN CONSTITUTIONAL WHAT-IFS can be eye-opening, if not scary. And while it can be fun to guess which member of President Bush's cabinet will be stashed away in an undisclosed location should disaster fall upon Capitol Hill during this evening's State of the Union address — our bet is on Transportation Secretary Mary Peters, just 'cause she's a new kid on the block — it is also frightening. Not necessarily because of who is in line to become president, but because of the giant loopholes that exist in the process that'd be use to reconstitute Congress. While there have been low-key pushes in recent years to fix the gaps in legislative branch continuity, they've never gained traction.

So if the unthinkable does happen this evening — whether it be Jack Bauer failing to stop a terrorist attack on the congressional campus or a surprise Martian death ray that vaporizes the House chamber — what are the what ifs?

» PRESIDENTIAL SUCCESSION: If you go back to your civics class in high school, you might remember the chain of succession if the president dies, resigns, etc. Currently, it goes like this, after President Bush: Vice President Cheney, Speaker Nancy Pelosi, Senate President Pro Tem Robert Byrd, at left, and then through the succession of Cabinet members starting with Secretary of State Condoleezza Rice and down through Veterans Affairs Secretary Jim Nicholson. Because the Department of Homeland Security is a new department, legislation needs to be passed to include its secretary, Michael Chertoff, in the mix. Two Cabinet secretaries, Labor's Elaine Chao and Commerce's Carlos Gutierrez are not native-born Americans, so they would be skipped in a theoretical mass succession scenario.

Presidential succession is pretty straight forward and easy to track. Not so with Congress.

» CONTINUITY OF CONGRESS: In recent years, Norman Ornstein, at right, a resident scholar of the American Enterprise Institute, has tirelessly warned official Washington of the danger with gaps that exist in legislative branch continuity. His concerns are best summed up in the following excerpt of Senate Judiciary Committee testimony Ornstein gave in 2003:

In the aftermath of an attack that killed or severely injured a large number of representatives and senators, there is a high probability that there would be no functioning Congress, or a Congress with such a small membership as to call into question the legitimacy of its actions. A catastrophic attack that killed many members would directly affect the House of Representatives because the Constitution effectively prevents the swift filling of vacancies in that body. An equally problematic scenario would be an attack that left many members incapacitated, which would affect both the House and Senate because neither chamber can easily replace living, but incapacitated, members until the next general election. The twin problems of mass death and incapacitation would threaten the functioning of Congress just at the time our country is most in need of strong leadership.

A bipartisan Commission on the Continuity of Government made a number of recommendations to Congress, including, as Ornstein spelled out in a Sept. 13, 2006, Roll Call column:

» [A] constitutional amendment to provide for emergency interim appointments to the House in the case of widespread death, and to both chambers in the case of widespread incapacitation ...
» [A] revision of the Presidential Succession Act of 1947, which is woefully out of date ...
» [A] first-ever plan to replenish the Supreme Court if it falls well below its legal quorum of six ...

The incapacitation of the House, in particular, is a sticky situation. If the speaker is killed or otherwise knocked out of commission, how can Congress pick a new one if there aren't enough members to meet quorum? What is the definition of incapacitation? There have been various proposals introduced to address the situation, including a constitutional amendment by Rep. Brian Baird, D-Wash., that would have allowed for the temporary appointment of House members. That proposal was sunk in 2004 by Baird's fellow House members. A bill authored by Rep. Jim Sensenbrenner, R-Wis. — which would have required states to hold special elections with in 49 days of a declaration by the speaker that more than 100 members had been killed, passed the House in 2005, but died in the Senate.

So with all that, tonight, as essentially everyone of importance in the three branches of government gathers on Capitol Hill, we hold our breath.

» "Ensuring the Continuity of the United States Government: The Congress" [Senate Judiciary Committee/Global Security]
» "As We Remember 9/11, We Should Act Now to Ensure Continuity" [Congress Inside Out/Roll Call, subscription req'd]
» "Baird Amendment Goes Down in Flames" [Roll Call, subscription req'd]
» "Continuity Bill Passes House" [Roll Call, subscription req'd]

Pool photo of last year's State of the Union by Pablo Martinez Monsivais via Getty Images; Robert Byrd photo by Mark Wilson/Getty Images; Norman Ornstein photo courtesy American Enterprise Institute

Posted By Michael Grass at 2:29 PM on January 23, 2007 Tagged in Capitol Hill , Free Ride , News

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