November 2009: After a hard-fought victory the year before, the new Democratic administration has come out of the starting gates in good shape. With the airwaves full of brave talk of new initiatives, there is real hope of a new beginning.
Then the unthinkable happens. A small nuclear device rips the heart out of Pennsylvania Avenue: The White House is totally obliterated; Capitol Hill looks like a war zone. Most of the nation's leaders are lost beneath the rubble. Under current constitutional provisions and law, here's what happens next: The secretary of defense, safe in the Pentagon, seems to be the next in line under the presidential succession statute. After swearing to uphold the Constitution as acting president, he immediately puts the country under martial law, suspending habeas corpus until Congress once again comes into session.
A couple of hours later, he comes before the television cameras to emphasize the need for action on another front. As his second formal decision, he is replenishing the Supreme Court by appointing nine distinguished jurists -- six Democrats and three Republicans -- to serve on the bench until the end of the congressional session. These recess appointments will assure the rule of law until the Senate can come back into operation and consider more permanent appointments.
Day 2. Emergency teams are hard at work searching for survivors. The secretary of state emerges from the ruins of Foggy Bottom. If the team had found her yesterday, she would have become acting president, since the succession statute places her first in line among Cabinet officers. But under the law, she lost her rights once the secretary of defense took the oath.
Day 3. The president pro tem of the Senate is in a different legal position: The statute does give him the right to bump the defense secretary out of office. The Senate was (narrowly) Republican before the blast, at which time it had selected a distinguished 86-year-old member to serve in this dignified, but powerless, position. Since the senior senator was at his suburban retreat at the time the bomb went off, he is safe and sound, and considers his options. The defense secretary, he is convinced, is a shallow, power-hungry, left-wing fanatic with dictatorial ambitions. After thinking about it overnight, the senator reluctantly concludes that the republic needs him. Rising to the occasion, he announces that he will exercise his statutory option and serve as acting president.
Despite the senator's dark suspicions, the secretary does not resist this new transition of power. He immediately yields to the clear demands of the succession law, and accompanies the new acting president to the oath-taking ceremony: A shaken nation turns on the television to see one of its elder statesmen assume a position that will obviously overwhelm him.
Day 4. The House and Senate are beginning to revive. Acting under the 17th Amendment, governors in each state are appointing new senators to replace those found dead. In a few more days, the Senate will reconvene with a large complement of members.
The House is another story. The Constitution gives the voters the exclusive power to select replacement representatives. And it will take months before a series of special elections will return 435 living members to the makeshift Capitol. Nevertheless, in 2005 the Republican leadership foresaw the potential problem, and convinced the House to pass new rules specially designed for “catastrophic circumstances,” under which a “provisional quorum” is determined by the number of representatives who show up on the floor within 72 hours after being summoned.
Three days have now passed, revealing the devastating success of the terrorist onslaught -- only 50 House members have managed to answer the call, making 26 a quorum under the emergency rules, and allowing the body to act on majority votes as small as 14 to 12. Before the blast, the House was narrowly under Democratic control, and this remains true in the rump House. Because none of the old House leaders have survived, as their first action, Democrats elect a new speaker, a relatively unknown female representative from Indiana.
In the meantime, the new acting president has fired the Democratic defense secretary and replaced him with a Republican protégé, giving him a recess appointment valid through the end of the congressional session. This dynamic young man aggressively follows through on his predecessor's declaration of martial law. He tells TV cameras that his troops will be sweeping thousands of suspects -- aliens and Americans alike -- into military custody, beyond the reach of any civilian court.
Day 5. The new speaker considers her options under the presidential succession statute. Just as the Senate president could bump the defense secretary out of the acting presidency, it gives her the right to bump him. What is more, she is the “unbumpable bumper”: The speaker will serve until the next election (subject only to impeachment). Nevertheless, she hesitates when she takes a glance at the Constitution: “A majority of each [House] shall constitute a quorum to do business.” Does this provision imply that she isn't really the speaker, since she had been elected on a vote of 31 to 19, and the Constitution implies that 218 members must be present in the chamber before a valid election can take place?
After weighing the pros and cons, she decides that the framers would have supported the decision by the Republican 109th Congress to create an exception for emergency conditions -- otherwise the nation would be unable to make any laws to respond to the ongoing crisis. She decides that she is the rightfully elected speaker of the House, takes the oath of office as acting president, and demands that the Senate president recognize her authority.
But he refuses -- and no less importantly, so does the dynamic new Republican defense secretary, who denounces Ms. Speaker as a weakling unfit to govern the country at its most perilous hour. Democrats respond by praising the wisdom of Dennis Hastert in promulgating the new rules. Republicans insist on obedience to the plain meaning of the Founding Fathers' commands.
Meanwhile, the country pays homage to the fallen president and vice president in solemn rites in Arlington.
Day 6. The new speaker sues to obtain the presidency, and the case is expedited to receive rapid treatment by the reconstituted Supreme Court (See Day 1).
Day 10. The Supreme Court hears oral argument and ponders the briefs. The nation waits. The secretary of defense pushes onward: Rumors suggest that more than 50,000 Americans are in custody, but the exact number is a national security secret.
Day 11. The country waits. Rumors of an impending terrorist strike generate widespread panic.
Day 12. The Supreme Court, by a vote of six to three, decides that the speaker is now acting president, and orders the present incumbent to recognize her authority.
Republicans are outraged at the defiance of the Founding Fathers, and point to the ringing denunciation of the majority by the three dissenters (who happen to be the Supreme Court's three Republican members).
Day 13. Silence from the provisional presidential office in Richmond, Virginia.
Day 14. Live from Richmond: “My fellow Americans, after considering my obligations to you and to the Constitution of the United States, I hereby accept the judgment of the Supreme Court and recognize Madame Speaker as acting president of the United States.”
Day 15. An anthrax attack kills 7,000 in Chicago.
* * *
We have a problem -- but not one that can't be solved. All it will take is some foresight and institutional creativity, and a bit of political leadership -- not a lot, since only praise will come to those hardy politicians who lead the country to think about the unthinkable.
How likely is it that a doomsday scenario will occur, say, over the next half-century: one chance in a thousand, or five hundred, or one hundred? Hard to say, but it isn't one in a million, and that should be enough to lead us to take action.
I will begin with the presidency, move on to the Supreme Court, and conclude with the House. (The Senate only needs minor fixes.) As my opening scenario suggests, piecemeal solutions won't do the trick. Although formal constitutional amendments are not required, we do need to engage in serious constitutional thought, designing each part in light of the emerging institutional whole. We need an “emergency constitution.”
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The Presidency
We owe the present succession statute to Harry Truman, who, upon succeeding Franklin Roosevelt, was dismayed to learn that the secretary of state was next in line to succeed him. Truman believed that his successor should be an elected official with deep political experience, and he successfully lobbied Congress to enact his position into law. But the statute needs serious retooling.
The bumping mechanism must be radically truncated. Whoever is acting president 48 hours after the blast should stay acting president (with impeachment as a last resort).
The line of succession should be revised. Truman was right to prefer seasoned political leaders to cabinet officers, but there are two problems with the current designations. Although the speaker of the House is almost invariably a leading politician, the central figures in today's Senate are the majority and minority leaders. The statute should take this into account, and replace the president pro tem with a Senate official whose leadership skills have gained the support of his colleagues.
My next change may prove more controversial, but it shouldn't be. By putting the speaker first in line after the vice president, the current statute assures us that a skilled politician will assume the presidency, but he may well be a member of the opposing political party. This is a mistake: Terrorists should not be allowed to overrule the decision of America's voters and generate a sharp swing in public policy. A statutory tweak will suffice to assure that the party that won the last presidential election remains in control.
The new succession statute should instruct each president, at the start of each congressional session, to designate either the speaker or the minority leader as the successor to the vice president; and the president should have the same privilege when it comes to choosing between the Senate majority and minority leaders. He will, of course, choose the leader of his political party, assuring policy continuity at a time of crisis.
We run into serious trouble only if some unspeakable disaster eliminates the leaders of both houses, as well as the secretaries of state and the treasury. This puts the secretary of defense next in line, since the War Department was created immediately after the Treasury Department when George Washington set up the executive branch. This accident of history should no longer rule us. The principle of checks and balances is far more important, and it suggests that the defense secretary should be placed at the bottom of the list of Cabinet officers. As civilian chief of the military, he will inevitably -- and justifiably -- have a large role in emergency decision making, but he should be obliged to make his case to an acting president whose past experience has exposed him to different perspectives. If the defense secretary is made president and promotes his deputy to his old job, their conversations in the executive suite will be dangerously parochial -- one Pentagon guy talking to another. The succession statute should skip to the next officer in line, the attorney general.
We then confront a problem. The attorney general, as well as the secretaries of state and treasury, are obliged to take a large view of national problems, and as a consequence, these officers regularly become prominent figures in American political life. But the other departmental secretaries have more parochial interests (Interior, Transportation), and are typically unknown to the general public. It would be terrible if any of these worthies were called upon to exercise presidential power.
My colleague Akhil Amar has suggested the creation of a new position -- minister without portfolio -- whose sole function would be to serve as acting president in the case of a dreadful decapitation. Once confirmed by the Senate, the minister would live outside Washington, D.C., and receive regular briefings that would enable him to act effectively if disaster struck. Amar hopes that the president would appoint a retired senior statesmen -- a George Mitchell, a Colin Powell -- to this post and give the country a figure in whom it has confidence at its hour of need. The danger, of course, is that the president could use the appointment to score points with a particular interest group or to reward a crony. And there is always the risk that the senior statesman will suffer a sudden decline in vigor before he is suddenly placed in command.
We should use this device only as a last resort, when a terrorist attack has taken out all six of the officials at the top of our lineup. Whatever the differences between the speaker of the House and the attorney general, all of them are wielding serious power on a day-to-day basis -- and you don't stay in this position unless you are in the prime of your political life. But if it's a choice between Amar's minister and, say, the secretary of agriculture, I go with the minister.
Finally, the acting president should only serve until the next regularly scheduled biennial election: In my scenario, he would serve through 2010, not through 2012. This will assure the earliest feasible return of a president with the explicit backing of the American people. This change in the calendar might readily be accomplished without a formal constitutional amendment -- indeed, for the first 150 years of American history, there was a statute on the books that did provide for a special election in cases when both the presidency and vice presidency had become vacant. We should renew this tradition.
* * *
The Supreme Court
The decapitation of the Supreme Court will predictably generate two sequential responses -- both terrible, but only one suggested by my earlier scenario. Recall that my acting president, on the first day of the attack, exercised his constitutional authority to refill the Supreme Court with recess appointments valid until the end of the congressional session. This would set the stage, however, for a series of confirmation struggles over permanent appointments. The entire affair will be a giant distraction during a tragic period, diverting the president, the Senate, and the country from many pressing matters.
This is not the worst of it. The entire two-wave cycle -- first interim, then permanent, appointments -- threatens two great constitutional values. The first is judicial independence. The interim appointees will be on probation at a time when they will be confronting crucial constitutional problems. If the interim justices exercise their oversight powers with vigor, they may easily antagonize key politicians on Capitol Hill, jeopardizing their future careers on the Supreme Court. If they roll over and rubber-stamp, constitutional safeguards will crumble, with long-lasting consequences.
There is a second big problem. Ordinarily, the Supreme Court's membership turns over slowly -- over the past half-century, a position has opened up about every three years, on average. This all-too-deliberate pace is getting to be a problem, creating the prospect of a Supreme Court that has lost touch with its many publics. But the decapitation scenario promises something worse: A problematic acting president, together with a Senate -- composed, remember, of gubernatorial appointees -- makes a series of lifetime appointments that will decisively shape constitutional law for decades. Even if the acting president contents himself with interim appointments and waits for an elected Senate to come to Washington, the country will still be reeling from the tragedy. This is hardly a propitious moment for selecting all nine justices, freezing the doctrinal orthodoxy of the day into a rigid pattern for 30 or 40 years.
We confront a paradox -- loss of judicial independence over the short run, excessive rigidity over the long run. This is a recipe for trouble, especially in a country that depends so heavily on the Supreme Court in its governing arrangements. Once again, it won't be necessary to change the Constitution in order to get us out of this hole. A statute will be enough, and here is what it should say: If the Supreme Court is deprived of its quorum, some of the chief judges of the courts of appeal should immediately be reassigned to the high court to serve as justices. The reassignment would take place through a lottery: There are 12 regular courts of appeal; the names of each chief judge would be dropped into a hat, and the identity of the new justices will be called out after a random draw. Judges become chief of their appellate circuits through seniority, and they must resign this position when they reach 70. By promoting them to the Supreme Court, we are guaranteed experienced jurists whose powers have not yet been dulled by great age -- and who will not sit on the court for 30 or 40 years.
Randomized selection will minimize the political spin -- most judges on a particular circuit might be appointed by Democratic presidents, but this won't prevent the chief judge from being a Republican if seniority marks him out, and vice versa. Finally, the replacements won't occupy their seats for extremely long periods. Chief judges of the appeals courts are almost invariably in their middle or late 60s, and even in this day of medical miracles, the grim reaper can't be delayed indefinitely. The statute, however, might go further and require the chief judges to return to their circuit courts on a staggered schedule -- guaranteeing the president and Senate at least one appointment every two years, say, if a vacancy doesn't otherwise arise through death or resignation.
But we are now descending into (important) details, and it is more crucial to see how the basic proposal resolves the egregious difficulties of the status quo. Rather than diverting the president and the Senate into a protracted battle over the Supreme Court at a time of emergency, the statute renews the court immediately with the nation's surviving senior jurists, without any partisanship involved. And it immediately assures judicial independence -- in contrast to recess appointments by the president, the tenure of the new justices won't depend on pleasing the powers-that-be in the White House and the Senate. At the same time, the happenstance of a successful terrorist assault won't freeze constitutional jurisprudence for 30 or 40 years: The Supreme Court will evolve with the changing temper of public opinion. Is there any fair question that this is a lot better than we can hope from the status quo?
* * *
The House
This problem requires a little more institutional imagination. The Constitution says “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States” (emphasis mine). These words inscribe a constitutional understanding that is deeply engraved on the national consciousness: Membership in the “People's House” is, and should be, based on a direct connection between voters and representatives. No formal amendment challenging this idea has a ghost of a chance, and I, myself, am firmly committed to retaining a direct linkage between the House and the people.
Nevertheless, there is a way to maintain existing constitutional commitments and still get the House back in business within days of a devastating attack: Congress should create a new office of vice representative, who will serve in Congress if the district's principal representative is either killed or disabled in a catastrophic attack. Henceforth, the major political parties would regularly nominate a two-person “ticket” in each House race, and voters would cast ballots for both positions at each election, enabling the vice representative to take over immediately in the event of a decapitating strike.
This system transparently complies with the constitutional text, since both representative and vice representative will be “chosen every second Year by the People.” Rather than violating this command, Congress would be complying with its literal terms. It is simply changing the mode of compliance -- replacing the current system of special elections with a more regularized mechanism for filling potential vacancies in advance.
My proposal may be novel, but it conforms to the Founders' decision to create the position of the vice president to serve as an immediate stand-in for the president. The framers could have dispensed with the vice presidency entirely, designating some interim figure, like the secretary of state, to call a special election to fill the office. But the death of the president seemed sufficiently likely, and sufficiently disturbing, to warrant the selection of a replacement in advance. Although they didn't give the vice president very much to do, they thought it was important to have him hanging around.
During the 18th century, the technology for a massive sneak attack wasn't available -- nobody thought that the House, like the presidency, could be wiped out in a single blow. So the framers didn't seriously consider the creation of vice representatives on analogy with the vice president. But there is no reason to suspect that they would have objected as a matter of principle. So far as the Constitution is concerned, Congress has ample authority to pass a statute creating the office of vice representative as “necessary and proper” for assuring the continuing existence of government in the United States.
Turning to policy, the new system has its share of problems. For starters, the House candidate at the top of the ticket won't be interested in giving a platform to somebody with sufficient stature to launch a primary challenge during the next election cycle. Nevertheless, he won't choose an obvious incompetent. As presidential candidates have learned, the selection of a bad vice presidential nominee starts the campaign off on a very bad note -- giving opponents a field day in the press. This will restrain the selection of a spouse or a child, or a notorious fool. While a House of vice representatives will contain its share of loyal hacks, so will the makeshift Senate dominated by interim members selected by state governors.
Not a pretty picture, I confess, but surely a lot less grim than a scene in which the acting president must rule by decree, or a rump House sits in defiance of bitter challenges to its constitutional legitimacy.
There will always be one disadvantage to the office of “emergency vice representative.” It will serve as a constant reminder of the real possibility of a devastating terrorist attack and provide a demoralizing undertone to ordinary politics. But demoralizing or not, the truth is that we do face a low-level but palpable risk. Rather than burying our heads in the sand, isn't it better to deal with the truth in a sober fashion, and in a way that seeks best to sustain our democratic ideals?
* * *
There are two kinds of emergency: one is created by a terrorist attack; another when the attack paralyzes our government. The first kind is almost inevitable -- it will be a miracle if we can stop the burgeoning traffic in increasingly powerful weapons, and I don't believe in miracles. But the second is entirely of our own making. It is the product of an ostrich-like refusal to confront the obvious inadequacies of our present arrangements. This is a matter on which all Americans should agree: However much we hope that our precautions will prove unnecessary, we should act now to create an adequate emergency Constitution.
Bruce Ackerman is Sterling Professor of Law and Political Science at Yale. This essay is adapted from his new book, Before the Next Attack: Preserving Civil Liberties in An Age of Terrorism, to be published by Yale University Press in March.
