44 Pages Posted: 10 Nov 2004
The hours and days after an attack on the national government will be dominated by the President and executive branch first-responders, acting under existing laws and appropriations to maintain peace and order and begin the national recovery. But Congress has a role to play in this time period, symbolic as well as practical. This reminds us that separation of powers remains the dominant structural precept under the Constitution and we do not truly have continuity of the national government unless all three branches are functioning in a constitutionally and structurally valid manner, with both a complete bicameral Congress and a President to enact legislation.
Continuity of Congress is best understood as a three-stage process, with each stage demanding different rules and procedures. The first stage is Immediate Continuity, covering the days and first week after the attack, during which the scope of the damage to Congress remains unclear and the seats whose members have been killed or incapacitated cannot yet be filled. The next step is Repopulation, which can be divided into two stages: Interim Repopulation and Final Repopulation. Final Repopulation is the end goal of continuity of Congress, when both houses of Congress have been returned to full working capacity with all members selected by the preferred mechanism of direct popular election. Interim Repopulation bridges the gap between the first week and the point at which popular elections can be held and elected members can take their seats.
The question of how to handle this middle stage in the House of Representatives has generated the greatest controversy among commentators and legislators, with disagreements about how quickly elections (that bring us to final repopulation) can take place and whether even temporary House appointments (even with a constitutional amendment) ever could be a permissible option. There also is the unique problem of a large number of incapacitated members of Congress, in which there are no vacancies that can be filled by any selection procedure, but also not enough able-bodied members to allow one or both houses to obtain a quorum to do business.
This paper is part of a symposium, "Ensuring the Continuity of Government in Times of Crisis," sponsored by Catholic University Law Review in January 2004.
Keywords: Government, continuity, congress, succession, elections, appointments
Suggested Citation: Suggested Citation
Wasserman, Howard M., Continuity of Congress: A Play in Three Stages. Catholic University Law Review, Vol. 53, p. 949, 2004. Available at SSRN: https://ssrn.com/abstract=615725