Rethinking the unthinkable

BRUCE ACKERMAN is a professor of law and political science at Yale University and the author of "Before the Next Attack: Preserving Civil Liberties in an Age of Terrorism."

THE NEWS MEDIA, politicians and observers are scrambling to speculate on how Sen. Tim Johnson's (D-S.D.) medical emergency might change the composition of the Senate. But if the health of just 1% of one-half of one of the federal government's three branches can cause this much concern, what might happen in a real emergency?

Specifically, imagine how the United States would react -- or not -- if terrorists succeeded in destroying Washington and, with it, all or most of the government. Chillingly, the Senate, which generated so much speculation this week, is actually in a better position to resume functioning than the other branches.

Under the 17th Amendment (which, in 1913, changed the way senators are elected), state legislatures may authorize governors to fill Senate vacancies on an interim basis, pending a special election to fill out the term. All that would be required is a statute redefining vacancies to include cases in which a senator is unable to cast a ballot because of a long-term disability. The rules should, of course, be careful to respect senators' rights to a full medical determination of their condition.

With that statute in place, a terrorist attack leading to mass incapacitation wouldn't generate institutional paralysis. We would see a new Senate rise from the ashes, with a political balance broadly representative of the nation.

This isn't true of the House or the presidency. Under present House rules enacted in 2005, a tiny number of survivors could exercise power for months, even if they were formerly from the minority party. Moreover, their newly elected speaker could succeed to the presidency if an attack took both the president and vice president.

Worse yet, the constitutional status of the speaker-turned-president would be problematic. The Constitution says a majority of each house "shall constitute a quorum to do business." It is a fair question whether the existing House rules, granting a rump the power to legislate after a terrorist attack, conform to this requirement.

Under ordinary circumstances, we'd leave a question like that to the courts, but what if the Supreme Court were also swept away? Under existing law, the president has the power to give justices recess appointments that expire at the end of the congressional session. The acting president could well be in a position to pack the very court that would judge his or her own status.

In our dangerous new world, it seems foolhardy to ignore these obvious risks. But during the five long years since Sept. 11, the leaders of the three branches of government have not been disposed to take their own mortality seriously. There have been a number of serious efforts to propose solutions to the succession problem. But there has been no serious effort by Congress or the president to enact a comprehensive package into law.

Everybody wishes Sen. Johnson a quick recovery. But the structural problems dramatized by his illness won't go away. And the political stakes may well be much greater the next time around.

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