Terrorist Attacks and an Incapacitated Congress

Published October 2001
THERE was a time when the idea of an incapacitated Congress would have been greeted with considerable relief by most citizens. In what may be the ultimate sign of our times, a constitutional amendment has been proposed to address what was once the unthinkable: the death or incapacitation of one-fourth or more of the members of the House of Representatives. This amendment, introduced by Rep. Brian Baird (D, Wash.), cannot be easily dismissed. The Constitution does in fact have a blind spot that makes the system vulnerable to terrorism.

In a nuclear or bio-chemical attack, it is possible that a majority of House members may be living but injured or incapacitated. In such a crisis, the remaining physically able members may return find themselves constitutionally disabled. Article I of the Constitution specifies that a quorum is needed to conduct any legislative business on either floor of Congress. A quorum is a majority of the elected members, including living but incapacitated members. Moreover, even with members who are killed, the average special election for a House member takes months. This would leave large areas of the country unrepresented in deliberations that could determine the future of the country, including the relatives sacrifices to be borne by particular states or areas of the country.

In the Senate, the problem is relatively easy to rectify because the 17th amendment allows state governors to appoint individuals to fill vacancies in the Senate. The House has no such provision. To rectify this problem, the proposed amendment would allow a governor to appoint House members for 90-day terms to fill vacancies while special elections are held.

The Constitution has only been amended 27 times in over 200 years. When one considers that the first ten amendments are the Bill of Rights, there have been relatively few modifications of a document that is not just the symbol but the very foundation for our country. The Framers wanted such amendments to be difficult, requiring not just the support of two-thirds of both houses of Congress but also three-fourths of the state legislatures.

In our system, we need all three branches operating in times of emergency. Congress is needed not only to assist an embattled president but, if necessary, to restrain an overzealous president. Every district should be represented at such a defining moment in history.

Despite its merits, there have been some misguided statements made in support of this amendment. For example, it is not true that the Framers never anticipated large-scale vacancies or absences in the House. Such absences and vacancies were very common. Moreover, during conflicts like the War of 1812 and the Civil War, Congress faced the possibility of the arrest or death of a significant number of members. After all, the British actually burned the Capitol in August 1814 and only barely missed capturing both congressional leaders and President James Madison in their flight from the Capitol. What the Framers did not anticipate was the combination of large-scale deaths or incapacitation and the need to act quickly in a national crisis. Simply put, things moved a bit slower in the 18th and 19th Centuries.

It is also not true that our system would shutdown with a devastating attack on Congress. The President has ample emergency powers to act to protect the United States and to respond to immediate threats. Congress is not needed in a day-to-day management of a crisis. Nevertheless, it is important to the country to have a fully functioning government at such a moment.

This amendment deserves serious consideration but also significant caution. Unlike death, incapacitation of a member is a matter of interpretation. Who makes that determination will be of enormous importance in a system based on checks and balances. Moreover, it is essential that any incapacitation determination be considered a matter for expedited judicial review rather than a “political question” that is left solely to Congress or the President.

Obviously, most voters might view this amendment as legislating for the apocalypse. However, recent events have served to concentrate our collective minds on our ability to confront any future contingency. Faced with a devastating attack, we need to act as a free people with one voice. It is in the House of Representative, known as the “People’s House,” that the voice of the people is heard most directly and clearly. Ultimately, the Constitution is our most important emergency contingency plan and it must be as contemporaneous as the dangers that threaten its Republic