What if Congress Couldn’t Function in an Emergency?
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In times of crisis, the executive branch (governors and presidents) steps to the forefront. Built into our constitutional system is the idea that executive power embodies action, decision, and dispatch, especially in times of national emergency. By contrast, legislative power is deliberative and relatively slow moving. But a well-functioning Congress in a time of emergency is a necessary institution. It’s the voice of the people, offering deliberative wisdom, sometimes a check on the executive, but also sometimes a strengthening or deepening of a President’s actions.
In the current COVID-19 pandemic, we are not in danger of losing Congress’s voice altogether. The current situation would have to get much, much worse for Congress to cease functioning.
But it is worth thinking about the extreme case, the 9/11 paradigm, where many members of Congress are dead or severely incapacitated, leading to an effective shutdown of the legislative branch. In coming days, this blog will consider the real and growing challenges of Congress operating in a pandemic, but it is worthwhile to remember that the worst case scenario is one that we have not solved even after the Cold War and 9/11 when members contemplated the possibility of a catastrophic attack on Congress.
Remember that on 9/11, the intended target of the United Flight 93’s hijackers was the U.S. Capitol. Also consider an attack on the state of the union, an attack on Washington, D.C. with weapons of mass destruction, or God forbid, a biological weapon or natural pandemic that spirals so out of control that most members of Congress are killed or incapacitated.
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How would Congress recover from such a catastrophe?
Unfortunately, there are constitutional and legal impediments that would make it nearly impossible for Congress to function (especially the House).
If many Senators died, the Senate could resume as a functioning body within days because the Constitution allows states to empower their governors to make temporary appointments to fill Senate vacancies. Most states have given their governors this power, and within days of an attack that killed all 100 Senators, the Senate could replenish at least 80% of its membership and could deliberate and exercise its usual functions.
Of course, the Senate would not be the same, but the institution would carry on and reconstitute itself with more than enough senators to meet the quorum requirement of a majority and be able to play its part in governing during the crisis.
However, in the House, the Constitution does not allow the immediate filling of vacancies by appointment – they must be filled by a special election. State laws provide for those elections to take place over many months. And even an attempt to speed up those elections would run into practical and logistical realities such as holding primary elections and getting ballots to overseas voters at least 45 days before an election as required by law, or even difficulties holding the elections at all as we have seen in recent days.
The reality is that a House of Representatives hit by catastrophic loss of life would have a hard time functioning for months. That would mean no role for Congress when all of the important emergency actions are taken to address the crisis at hand.
Solutions to this constitutional problem were proposed during the Cold War and again after 9/11 by the Continuity of Government Commission.
More on those solutions in future blogs. And more on the challenges of governing during the current COVID-19 crisis.
John C. Fortier is the director of Governmental Studies at the Bipartisan Policy Center and was Executive Director of the AEI-Brookings Continuity of Government Commission.
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