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Jewish World Review Nov. 7, 2001 / 21 Mar-Cheshvan 5762

Bill Schneider

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An insurance policy on America -- INSURANCE agents claim that you have to think about the unthinkable. All Americans have had to do that since September 11. Including one Member of Congress who has assumed the role of insurance agent for the Republic.

"These are questions that were once unthinkable,'' Rep. Brian Baird (D-Wash.) said in an interview last week. "They certainly could not have been contemplated by the Founders of our great country.''

What questions? Remember on the morning of September 11, one hijacked airplane was brought down in Pennsylvania before it could hit its intended target. That target may have been the United States Capitol. The unthinkable question: what if the Capitol were destroyed, and with it, much of the membership of the United States Congress? Nine of the ten top leaders of the House and Senate were in the Capitol building that morning.

"What could happen? How could we prepare for it?'' Rep. Baird asks. "And how do we clarify exactly what would be done so that if the American people were to turn on CNN and see that the Capitol had been hit and many Members of the House and Senate had been killed, we would have a clear-cut answer for them that says, `Your constitutional democratic republic will persevere. These are the steps that will be taken to replace the Members and rebuild the government.'''

It sounds like the stuff of fiction. In fact, it has been the stuff of fiction. In two of his books, novelist Tom Clancy imagined a hijacked airliner crashing into the U.S. Capitol during a presidential State of the Union address. Indeed, many Americans describe September 11 as a Hollywood movie come to life.

There is a line of succession to the presidency. But what about Congress? Not a problem in the Senate. The Constitution allows governors to "make temporary appointments until the people fill the vacancies by election . . . '' In every state except Oregon, governors have the power to appoint new senators immediately.

The House of Representatives presents a problem, however. The Constitution requires that House vacancies be filled by special elections. No House Member has ever served without being elected by the people. "We're very proud of that,'' Rep. Baird says. But special elections take three to six months to organize, on average, with each state determining the timing and procedure for those elections.

Could the President simply govern without Congress? On that point, the Constitution is clear: no. As Baird points out, "There is no provision that authorizes the President to appropriate funds, unilaterally declare war or choose a vice presidential nominee without [congressional] confirmation. The Framers wanted it that way.''

Most rank-and-file House Members were not in the Capitol building on the morning of September 11. Suppose they had been. Suppose an attack occurred during a joint session of Congress like the one President Bush addressed on September 20. How many House Members would have to survive an attack to constitute a quorum?

The House rules say a quorum consists of "a majority of those members chosen, sworn and living.'' So a handful of surviving House Members, totally unrepresentative of the country, could take power. And create a good deal of mischief with the full authority of the Constitution, pending elections to replenish the legislative branch.

Baird's insurance policy aims to prevent that from happening. "What I've proposed is this,'' the congressman says. "If a quarter or more of the membership of the House is killed or disabled and can't function, then the governors of those states would be authorized to appoint replacement Members who would serve during a 90-day period, which would give us time for direct elections to take place.''

In order to do that, Congress would have to pass, and the states would have to ratify, the 28th amendment to the Constitution. Amending the Constitution is no small matter. An amendment must be approved by two thirds of both Houses of Congress and then ratified by three quarters of the state legislatures.

Baird decided not to complicate the issue by defining what would constitute "incapacitation'' of a House Member. "Believe it or not,'' he points out, "there are no provisions in the House rules or in the Constitution for removing a Member of the House due to disability. Indeed, Members have served in the House who were comatose for extended periods of time.'' Bair's amendment leaves that matter to be resolved by enforcement legislation and by the courts.

Nor does his amendment make any mention of political parties. That is in deference to the Constitution itself, which has never included any reference to parties. His proposed amendment has more than forty co-sponsors from both political parties. Why not more? Because there is a risk. Debating such a measure could frighten voters and make Congress appear panicky.

But there is another risk. The unthinkable could happen -- again. "If fate is unkind to us,'' Baird says, "history will judge us on how well we were prepared and prepared our nation to deal with the worst-case scenario.'' It's a scenario that Cobngress and the Republic may have narrowly escaped -- this time.

Rep. Baird recommends caution. He is urging Congress to pass the amendment now, while the states may choose to delay adoption in order to give the matter careful deliberation. That way, the states would have an option in place that they could ratify quickly. In case it is needed.

To comment on JWR contributor William Schneider's column, please click here.

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© 2001, William Schneider