Continuity in Government: A constitutional fault line

Sandy Levinson

Gerard's post raises absolutely central questions that too often go undiscussed.  I note for the self-serving record that my wife and I, in the book we wrote together ostensibly for teenagers, Fault Lines in the Constitution, actually devote a full chapter to the problem of "continuity in government" under dire circumstances, including public health emergencies.  It is in that chapter that we discuss the technicalities of quorum requirements, for example.  Should 51 senators be isolated, for example, it would be impossible to meet the constitutionally-required quorum of a majority that is required in order to do business, not to mention the fact, as suggested by Gerard, that even if 51 senators could show up, that means, by definition, that only 26 would be needed in order to pass legislation.  That would presumably present a huge legitimacy problem, but, for better or worse, not a legality problem.

There was some discussion of the overall problem after September 11.  A blue-chip DC committee organized by both Brookings and the American Enterprise Institute met and wrote at least two fine reports, one of them suggesting a constitutional amendment that would address the problem of wholesale deaths or disabilities of the House and Senate.  In fact, I testified in front of a Senate subcommittee headed by Texas Senator John Cornyn, who, to his credit, took the proposal seriously.  It in fact went nowhere because Republican Rep. James Sensenbrenner of Wisconsin, the Chair of the House Judiciary Committee, hated the idea of non-elected representatives under any circumstances so he refused to hold hearings on the amendment (which would, under certain conditions, have provided for the appointment of replacement or substitute representatives).  That was in 2004.  It is now 2020, and we face the same "fault line" that threatens our constitutional order.

It is a grim fact that dead senators are no problem at all; they can, in most states, be immediately replaced by gubernatorial appointment.  That is not the case with dead representatives, since the Constitution requires that all representatives be elected.  That is no problem in the case of "retail" vacancies.  Who really cares if 430 instead of 435 members of the House show up on a given day.  Wholesale vacancies are another matter, obviously,  And both houses of Congress are equally afflicted by disabled members cannot do their legislative duties.

If they're truly disabled, then allowing absentee voting is no solution.  Someone in a coma or on a ventilator is not in a condition to cast a deliberative vote.  Someone simply in isolation can, of course.  Let me suggest that it is an insane reading of the Constitution to declare that all absentee voting is "unconstitutional," which some articles have suggested is Mitch McConnell's position.  Let me also suggest that anyone influenced by McConnell's own Schmittian approach to exercising his power over the past decade should quickly agree, apropos of Gerard's questions, that the Democrats should seize back the Senate the minute they have a majority of members on the floor because of the isolation or quarantine of a sufficient number of Republicans.  Only comity would suggest otherwise, and Mitch McConnell has indicated over and over again that he has no regard whatsoever for the norms of comity.  Those who live by the sword should be prepared to die by it.
Posted 12:32 PM by Sandy Levinson [link]