48 Pages Posted: 24 Jun 2002
Date Written: June 2002
The Terrorist Attacks of September 11 and the subsequent War Against Terrorism have raised in many minds the morbid, unlikely, but nevertheless timely possibility of a future massive, perhaps nuclear, terrorist attack laying waste to all of Washington, D.C., killing the President and Vice President, and destroying Congress and the federal government. President Bush's "shadow government", composed of members of all federal agencies working from a secure undisclosed location, ready to step-in in the wake of a terrorist attack, reflects this newfound concern with continuity in the federal government.
This Essay considers the constitutional and structural problems raised by the terrorist attack scenario and the plans for government continuity. The Essay focuses on several points. First, there is no place to extend the statutory presidential succession order beyond the current line of Speaker of the House, President Pro Tempore of the Senate, and Cabinet. The extension of the line to all three alternatives - rank and file members of Congress, sub-Cabinet executive officers, and state Governors - creates constitutional, democratic, and practical difficulties. Second, President Bush's "shadow government" (details of which have not been shared with the public) is potentially problematic in that it does not obviously provide for the safety of a proper statutory successor to the President, one person who will assume and exercise the "executive power" under the Constitution. The plan is certainly problematic in that it does not appear to provide for continuity of Congress, but appears to assume that an executive branch alone provides sufficient continuity in the federal government without a functioning legislative branch. Third, there has been no discussion of the more important aspect of continuity under the Constitution, the repopulation of the federal government and the replacement of those high officials in all three branches who were killed in any attack so as to bring the government up to full working speed. Most importantly, repopulation would demand action not by the federal government, but by the several States, which are constitutionally responsible for choosing, or controlling the process of choosing, new members of Congress and new electors to choose a new President.
This Essay discusses the constitutional, statutory, and structural problems that would arise under current continuity plans, particularly President Bush's shadow government. It suggests how succession, continuity, and, most importantly, repopulation of the federal government should operate in the event of a massive terrorist attack, both under current law and through some constitutional and statutory changes that are necessary to meet the new exigency.
Suggested Citation: Suggested Citation
Wasserman, Howard M., The Trouble with Shadow Government (June 2002). FSU College of Law, Public Law Research Paper No. 53. Available at SSRN: https://ssrn.com/abstract=315102 or http://dx.doi.org/10.2139/ssrn.315102