an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
One of the respondents to my previous post points out, altogether accurately, that it has become customary for one member of the Cabinet to refrain from attending the State of the Union address so that there will be someone available to take over the reins of government should a catastrophe wipe out most of the highest level of the Executive Branch. He cites a very helpful Wikipedia entry on "designated survivors.) (This comment was provoked by the revelation that Robert Gates was in a secret location during President Obama's inauguration so that he could take over if Obama, Biden, Pelosi, and Robert Byrd were all killed, Clinton and Geithner being unavailable to serve because neither had ben confirmed, unlike Gates, a carryover from the Bush Administration.)
But isn't this a perfect illustration of a limited--dare one even call it "stupid"--response to what may or may not be a real problem? For what if we truly believe that there is some finite chance of such a catastrophe taking place? Consider that recent absentees have included the Presidents pro Tem, whom no sane person would wish to take over (Stevens, and Byrd) , the Secretary of Veterans Affairs (2001), or, most recently, the Secretary of Energy. (The whole list is at the Wikipedia article.)
Would any sane person be reassured by knowing that the Secretary of Veterans Affairs or Commerce (or even Attorney General, as with Gonzales and Holder) was secreted away somewhere, ready to take over? Might not most of us even prefer a (temporary) military takeover to a government headed by the Commerce Secretary (whose name I do not know and who was, I am confident, not picked for any skills relevant to leading the nation after a catastrophic event)? It's like our stupid (and possibly unconstitutional) Succession in Office Act, something that makes no sense under close analysis but is supposed to reassure us that our world is in fact safer and more manageable than it may be. (Like taking off one's shoes at the airport?) And, of course, our Congress can't be bothered to take seriously the proposed Continuity in Government Amendment suggested by a joint commission of the Brookings Institution and the American Enterprise Institute because there's no political traction in it. One would actually have to address serious issues of governance instead of grandstanding to the base. (Once again, incidentally, I comment Texas Republican Sen. John Cornyn, with whom I rarely agree, for sponsoring the proposed amendment.)
The main question hanging over the country is how much of our everyday behavior will be changed because of what we are constantly told is a "war" with terrorism. If we really do believe that there is, say, a 1% probability that a successful attack will take place on the Capitol when everyone gathers for the State of the Union address, that's a good reason either to revert to an earlier tradition, when Presidents delivered written messages, or, at the very least, telling most of the Cabinet and Justices, for starters, that they can, like the rest of us, watch it on TV. (I note that Dick Cheney did not attend the immediate post-Sept. 11 address to Congress, but did seemingly attend all of the States of the Union address thereafter. But why? I ask this as a fully serious, and not cheap-shot, question.)
Indeed, why shouldn't members of Congreess also simply watch the address on TV, given that no one takes it seriously as a "conversation" between the President and Congress. The only function of members of Congress is to engage in applause (or sit sullenly on their hands). Ironically, a successful attack would presumably take out the person next in line to the VP, i.e., the Speaker of the House, who, of course, sits behind the President (along with the VP).
I don't know myself how serious I am with regard to such suggestions. But what I am deadly serious about is that the country is almost frivolous with regard to asking serious questions about what is, and is not, required by the particular dangers posed by terrorists (and, of course, whether they're really more danerous than other kinds of risks that we seem blithely to minimize or out-and-out ignore, beginning with climate change).
This is not about a serious threat of terrorism. The practice dates back to the Cold War, when an attack on Washington was a real possibility. However, it was continued after the fall of the Soviet Union though as a ceremonial function. Not just in the real Clinton White House, but also in the fictional TV White House:
"In the episode He Shall, from Time to Time..., Josh is instructed to "pick a guy" (referring to the designated survivor.) Ultimately, Secretary of Agriculture Roger Tribbey is chosen; the episode closing with the President briefing him on damage control, and leaving him in the Oval Office as he leaves for the Capitol to deliver the State of the Union Address." [Wikipedia]
Whatever the actual planning for continuity of government, this bit of dress up pretend is not a real part of it.
However, if we are serious about this sort of thing, the first step would be to allow Congress to vote through a secure electronic mechanism without coming to the floor. While this provides some protection against attack, it also avoids the spectacle of some Senator dragged into the Capitol on his hospital bed to cast an important vote on pending legislation.
"Indeed, why shouldn't members of Congreess also simply watch the address on TV"
I think it's a combination of figuring that security is so good there's no real threat, and 435 people who all share the same personal motto: "Apres moi le deluge” Hey, if they're dead, why should they care what comes next? Hey, if they cared about posterity, they'd do a LOT of things differently.
I watch State of the Union TV productions amazed by the camera work and the pomp and circumstance. I wonder how many persons are involved in preparing for the various camera shots and who makes the decisions with respect to these shots. And while we're at it, there are many "guests" on the floor in addition to the 535 Congress members, such as Cabinet members and SCOTUS Justices. (Why do the Justices wear their robes in the House chambers?) It's like watching a major sporting event with such camera shots. I wonder if those in attendance are aware when they are included in a camera shot (so they don't nod off or do a pick). And of course there are the "standing Os" in addition to the applause. The alternative may be to watch "Spike."
Tom Clancy answered this question: Things would go on just as before. An incompetent President would be advised by his inner circle, or bypassed entirely, as was done after Woodrow Wilson had a stroke.