Since their realization that United Airlines Flight 93 was headed toward the U.S. Capitol on the morning of September 11, 2001, legislators and policymakers have been debating how the legislative branch would continue functioning in the aftermath of a terrorist attack that killed or incapacitated large numbers of senators or representatives. This Article reviews the current House and Senate "Continuity of Congress" plans, and argues they are both practically and constitutionally inadequate. Focusing particularly on the Constitution's majority quorum requirement in Article I, Section Five, Clause One, this Article argues that a House or Senate operating in accordance with the current rules of those two bodies after a catastrophic attack would lack the basic constitutional structure to do business. The problem would be especially intractable in the House of Representatives, because seats in that chamber can only be replenished through elections. Because the rule-making power granted to the legislative branch in Article I, Section Five, Clause Two is insufficient to fix this twenty-first century problem, this Article endorses a constitutional amendment that would establish an orderly postdisaster replenishment process.
TABLE OF CONTENTS INTRODUCTION I. THE ROLE OF QUORUM REQUIREMENTS IN THE GOVERNANCE OF REPRESENTATIVE BODIES II. THE ORIGINS OF THE CONSTITUTION'S MAJORITY QUORUM REQUIREMENT A. The Debate and Rejection of a Submajority Quorum Rule B. The Debate and Rejection of a Supermajority Quorum Rule C. The Majority Quorum Requirement as a Fixed Constitutional Rule of Procedure D. The Majority Quorum Requirement in the Early Congresses III. CIVIL WAR CRISIS AND THE RUPTURE WITH EARLIER PRACTICES A. Change in the House B. Change in the Senate C. The Continuing Evolution of the House Quorum Rules D. The Constitutional Significance of the New Quorum Rules IV. BALLIN AND THE OUTER LIMITS OF THE CONGRESSIONAL RULE-MAKING POWER V. THE QUORUM REQUIREMENT AND REPRESENTATION IN THE POST-9/11 WORLD A. The Recent Congressional Response to the Disaster Scenarios B. The Current Plan Fails To Meet the Basic Constitutional Requirements of Representation CONCLUSION INTRODUCTION
Since their realization that on the morning of September 11, 2001, United Airlines Flight 93 was headed toward downtown Washington, D.C., with the objective of destroying the Capitol building, (1) congressional leaders and outside policymakers have been asking how the federal government would have continued operating if the Flight 93 hijackers had successfully completed their mission. (2) Although the legislative branch has a long tradition of grappling with so-called "Continuity of Congress" issues, the near-miss of September 11th created a new sense of urgency both inside and outside Congress to develop emergency procedures that would minimize the disruption a successful attack would have on legislative branch operations.
In the course of this process, Congress has been forced to consider its own mortality and ask difficult questions: How would the legislative branch reconstitute itself if an enemy managed to kill or temporarily incapacitate a large number of senators or representatives? In the wake of a catastrophic attack, could the federal government operate temporarily without a legislative branch? Or, could Congress temporarily operate with a number of senators and representatives radically smaller than the full membership of the two chambers? (3)
A quick review of Congress's actions in the weeks after the 9/11 attacks illustrates the importance of an operating legislative branch in the aftermath of a national disaster. Within a week following 9/11, Congress appropriated $40 billion to begin the recovery effort in New York City, (4) and authorized the President to use force against the terrorists responsible for the attacks. (5) Over the next several months, Congress passed a major revision of federal criminal and intelligence laws, the USA PATRIOT Act, (6) and created a new federal agency for airport security, the Transportation Security Administration. (7)
Questions about how our government would operate in the aftermath of an attack against Congress that resulted in mass casualties have inevitably led lawmakers and other debate participants back to Article I of the U.S. Constitution, which created the legislative branch and established the basic procedural framework the House and Senate must follow in order to legitimately meet and legislate. This debate poses a very basic constitutional question: what are the essential elements of the legislative branch and its operations, without which it ceases to be able to act as a legitimate branch of the federal government?
This question is especially complicated and important for the House of Representatives, the chamber the Framers considered the "first branch" of the national legislature, (8) because of its role as the most purely representational part of the federal government. Whereas the Seventeenth Amendment to the Constitution provides a process through which states can temporarily fill the seats of senators killed in a terrorist attack, (9) the Constitution requires the House to replenish its seats through elections, (10) which means that chamber would need weeks or even months to replenish its membership. The difficult challenge for disaster planners seeking a workable, constitutionally sound postcatastrophe strategy is to develop a plan that meets two indispensable criteria: (1) that the legislative branch be able to recover quickly and operate effectively in the aftermath of an attack, and (2) that the organic structure of the legislative branch, as spelled out in Article I of the Constitution, be preserved.
To set up the important questions this Article will explore, it is worth briefly describing what would happen to the legislative branch in the case of a mass disaster, according to the disaster plan that is in force today. If a hijacked airplane like Flight 93 struck the Capitol at a time when the House and Senate were in session and killed the majority of the members of those two chambers, several different rules and statutes would be triggered. In the Senate, the seats of the dead senators would be declared vacant and the various state processes allowing governors to name temporary Senate appointments would be engaged, as is permitted under the Seventeenth Amendment. (11) During the days or weeks the states would take to name temporary appointments to their vacant seats, under current Senate Rules, the Senate would consist of the smaller number of the "chosen and sworn" senators who survived the attack. (12) In the House, which has no constitutional power to replenish its membership through temporary appointments, the mass casualty of members would trigger an expedited election law requiring states to fill these vacancies with elected representatives within forty-nine days. (13) During the seven weeks necessary to conduct these special elections, the House would consist of the "chosen, sworn, and living" members who had survived the attack. (14)
Another version of this disaster scenario is the even more problematic "incapacitation" scenario. What would happen if a terrorist attack did not kill a large number of legislators, but instead injured them severely enough (for example, through an anthrax attack) that they could not perform their legislative duties for a long period of time? In this case, there would not be large numbers of vacant seats, but rather large numbers of living members who could not appear in the House and Senate chambers to perform their legislative duties. (15) In the House, under a rule adopted at the beginning of the 109th Congress, the Speaker would have the power to determine which members were incapacitated and then the House could conduct business with the smaller "provisional" number of members the Speaker judged capable of fulfilling their duties. (16) The Senate currently has no plan to respond to the incapacitation scenario. As Senator John Cornyn of Texas commented in a 2003 hearing, "[i]f 50 Senators were in the hospital, unable [either] to perform their duties, or resign, they could not be replaced. The Senate could be unable to operate for up to two full election cycles--a 4-year period." (17)
This Article argues that the plans described above, especially the plan for the House of Representatives, fail to provide for the continuity of Congress in a way that preserves the essential constitutional elements of the legislative branch. This Article will show that the two chambers' disaster plans both overstep their constitutional rule-making powers and fail to observe the basic representative structure of the legislative branch that the Constitution requires. A greatly diminished House or Senate operating under their current continuity procedures would not be a valid legislative branch as the Framers established it in Article I of the Constitution. The focus of this Article will be one of the key constitutional procedural provisions the current continuity plans most obviously violate: the Article I, Section 5, Clause 1 requirement that "a Majority of each [House] shall constitute a Quorum to do Business." (18)
After examining the role quorum requirements play in the governance of representative bodies such as the House and the Senate in Part I, the second Part of this Article examines the Framers' choice to establish a constitutionally fixed quorum requirement for the federal legislature. To ensure that a small, unrepresentative group of legislators would never be able to make decisions binding on the entire nation, the Framers decided that to do business, the House and the Senate required the presence of representatives from a majority of the whole number of seats in those two bodies. For the purpose of determining a quorum to do business, the practice of the First through Thirty-sixth Congresses was to define the whole number...