Monday, January 17, 2011

Continuity in Government

Sandy Levinson

The Washington Post reports that Arizona law declares vacant a seat of any public official who is unable to discharge his/her duties for a period of three months, which might well apply to Rep. Gifford. As a matter of fact, the provision makes a great deal of sense, if one believes that the citizenry is entitled to "full representation" (whatever exactly that might mean). What is interesting is whether the provision is constitutional, inasmuch as the Constitution, when listing the criteria for membership in the House or Senate, does not list "capacity to function" as one of them. And the Court, in its infinite wisdom several years ago declared by a 5-4 vote that it was unconstitutional for a state to add to the criteria set out in the Constitution.

Predictable outrage has been expressed at the possiblity that Rep. Giffords might lose her seat and a special election called should she not continue her "miraculous" recovery. But consider the possibility that she was only one of, say, two hundred members of Congress severely debilitated had Flight 93 crashed into the Capitol. Dead senators are no problem at all, since they can, in most states, be succeeded the next day by whomever a governor appoints. Dead representatives can't, alas, be replaced by anything other than special elections. But the problem in both houses is a signiificant number of seriously disabled reperesntatives and senators. A joint commission of the American Enterprise Institute and Brookings Institution has been working now for almost a decade on the problem of "Continuinty in Government," but, altogether predictably, Congress as a whole has done nothing whatsoever to address this possibility. (Texas Senator John Cornyn deserves great credit for in fact holding hearings on the Brookings-AEI proposal back in 2004, where former Sen. Alan Simpson (R-Wy) expressed outrage at the unwillingness of Republican Rep. James Sensenbrenner of Wisconsin, who was then chair of the House Judiciary Committee, even to hold hearings.) No further hearings, to my knowledge, have been held in the past half-dozen years. "Retail vacancies" are not a serious problem (save perhaps for the state or district in question), but "wholesale vacancies" could prove a national disaster, since, among other things, We the People would demand action from a de-facto dictatorial President if Congress could constitutionally govern (because, for example, it could not achieve a quorum of its membership, most of whom would be disabled).

Arizona's law might be unconstitutional, but, unlike many recent Arizona statutes, it is not at all stupid, and it would be most unfortunate if, yet again, a serious discussion about what is in fact a potentially disastrously dysfunctional feature of the Constitution is brushed aside because of the belief that it would be disrespectful to Rep. Giffords to address candidly how long it will be before she can resume her responsibilities. Of course, South Dakota Tim Johnson was incapacitated for many months following his stroke, and South Dakotans were happy to re-elect him at the next available opportunity. (And perhaps Massachusetts was delighted to be "represented" by Sen. Kennedy in the last months of his life when he was confined to his home save for the symbolic trip to cast his vote in favor of reform of our egregious system of delivering medical care.) One hopes, obviously, that Rep. Giffords will have the same recovery as did Sen. Johnson, but, frankly, I don't recall anybody describing the extent of his recovery as "miraculous."


You beat me to it. I was going to post something on this.

From a constitutional/legal perspective, the first question is whether Arizona can declare a vacancy on its own initiative. I think that the answer to this is probably yes. Neither the Constitution nor House precedent (based on my brief research) requires that there be action by the House before a vacancy may be recognized by the state executive.

Second, what would happen if the Arizona Governor declared a vacancy and called for a special election. Giffords or her representatives could challenge the constitutionality of this action in state or federal court (just as the referendum to recall Senator Menendez was challenged and invalidated in NJ state court). They would have to argue that the Constitution precludes recognizing a vacancy based on incapacity. Powell v. McCormick would certainly be an analogous precedent in her favor, but note that it deals with qualifications, not vacancies. Moreover, one could argue that a court cannot or should not involve itself at this stage, because the question of whether a successor was properly elected is one for the House to decide, at least in the first instance.

Third, what would happen if Arizona held a special election and elected a new representative. In that case, it would be up to the House to decide if there was in fact a vacancy. If the House decided in the negative (and declared that Giffords was still a member of the body), it seems to me that this would very likely be the final word. It is difficult to see any basis in constitutional text or history to require the House to recognize a vacancy under these circumstances.

On the other hand, if the House accepted the credentials of Giffords’s successor, it could be a different story. Certainly the argument could be made that creating a vacancy by incapacity is a backdoor way of adding qualifications to the office, and therefore unconstitutional under Powell v. McCormick. I have always assumed (based on the continuity of Congress brouhaha) that this was a very strong argument. On reflection, however, I am not so sure. The Constitution doesn’t specify what creates a vacancy, and, just as the House must have some discretion to decide what constitutes a valid resignation, it could be argued that it must have discretion to determine that a vacancy arises either from a complete inability or failure to perform the functions of the office over a period of time.

Let me add to the "what ifs":

What if the Arizona Governor declared a vacancy and Giffords' people, in addition to challenging the Governor's action in the courts, got her on the ballot for the special election, and, despite her then still being unable to discharge her duties, she wins the special election? Might that start a new three month period under the Arizona law? And what might the House do regarding the vacancy, the special election and the new election of Giffords and her continuing medical condition?

All these "what ifs" pointed to by Sandy, mls and now me suggest the "vacancy" in the Constitution to address the posited application of the Arizona law. And that seems to be Sandy's point with this post, especially since the House is not prepared, so far, to address the problem posited by Sandy.

My deepest thanks for these thoughtful posts. They suggest, among other things, that not all contemporary constitutional issues need immeidately turn into partisan bickering.

This is really a valid question you have raised. The only thing the House has done with respect to "continuity" is to require faster "special elections" when a Member has died as part of a catastrophic event.

The current precedent and practice in the House (and Senate)is clear: "The House declines to give prima facie effect to credentials, even though they be regular in form, until it has ascertained whether or not the seat is vacant. ..." (Constitution, Jefferson's Manual, and Rules of the House, at sec. 23, P. 12 (2009)). Each House of Congress has final say as to the seating and proper election/selection of its own Members. Art. I, Sec. 5. The House or the Senate have NEVER moved to declare or recognize a "vacancy" in a seat occupied by a living, sitting Member of the House or Senate (Rep.-elect Spellman was not a sitting Member, but only a Member-elect who failed - because she was in a coma - to appear to take the oath of office). However, Senator Glass of Va. was out of the Senate for 4 years; Sen. Mundt for almost 3 years, Rep. Grotberg from Ill. was in a coma from Jan. 1986 and never came back to Congress before the end of the session.

There are other examples of Congressmen absent for long periods of time. Charles Sumner, for example, didn't return for 3 years after his beating on the Senate floor.

The provision makes sense as a state provision for state officials and reading it in full, it sounds like it is just that. If federal officials are involved, it should be a federal law. I also wonder how exactly she would be unable to carry out her duties. Is she required to do anything?

Art. I speaks of "vacancies." This isn't the same thing as incompetency, which is underlined by Art. II, which specifically talks about "disability." [Slate Magazine yesterday raised the concern about judges unable to serve.] Single vacancies have occurred at various times and stretching "vacancy," using state law at that, is not really well advised, even if it is (imho doubtful) constitutional.

The real issue is some event when a large number of members are unable to serve. A bombing of the Capitol or such is raised. But, honestly, if some major tragedy of that nature occurs, some lag time to fill the places again (and a quickie election is quite possible) is likely the least of our problems.

If so many members are unable to serve that a quorum is not present, this is surely the case. Consider that normally it takes a long time for Congress actually to do something. The matter is open for examination.

Off topic.

The below was cited at Volokh Conspiracy, but Sandy Levinson contributed to the volume as well. "Do constitutions have a point? Reflections on 'parchment barriers' and preambles."

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