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."
Posted 5:30 PM by Sandy Levinson [link]