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Wednesday, June 14, 2017

Overcoming a Congressional Massacre

The shooting today in Virginia raises a constitutional issue that comes up periodically and should be addressed with an Article Five amendment.

Suppose most of the members of the House of Representatives were killed in a terrorist attack (either domestic or foreign). There is only one constitutional way to replace these dead members--a special election called by each affected state for the vacancies. This process, though, would take months.  In the interim, the surviving members of the House (even if there were, say, only twenty left) would be forced to act as the House and consider emergency legislation in the wake of that crisis. The Senate, does not face this problem. Deceased Senators can be replaced (under the Seventeenth Amendment) by an appointment from the Governor of their state, though state law can choose to require a special election instead.

Consequently, many scholars and members of Congress have proposed that the Constitution be amended to say that if a mass vacancy occurred in the House, then Governors would be able to appoint interim replacements. In 1960, such an amendment was proposed due to the concern was that a nuclear bomb would incapacitate the House. After 9/11, the proposal was revived in the wake of the failed attempt to blow up the Capitol.

These Article Five amendment proposals have never received the necessary support in Congress.  Perhaps that is because the idea that all House members must be elected is considered sacrosanct. Or maybe it is because the thought that such a disaster would occur seems too far-fetched.  Neither is true.  Hopefully action can be taken before the crisis is upon us.

32 comments:

  1. Something that didn't happen in over 200 years is a bit far-fetched. Also, it isn't necessary for elections to take months. If a disaster occurs:

    "When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies."

    This allows quick action if done in the proper way. State law causes delays here, but that can be changed without a constitutional amendment. If some sort of mass murder does occur, it is likely the President will have a lot of power. A few weeks at least to have the people have a chance to vote replacements seems appropriate.

    But, I'm open to some emergency policy approach. Depends on the details. Still, tbh, there are various other things that seem more immediately of a concern.

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  2. A quorum only requires a majority of the House. The remaining Members could still conduct business, which would presumably require dealing with the emergency. That's not ideal, but it could continue for a short period of time. If the emergency lasted longer that would be a problem, but so would assembling a new House. All told, and given the potential for abuse by gubernatorial appointment, I'm skeptical about this proposal.

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  3. Since I have basic cable, I have never seen episodes of "House of Cards." I'm wondering if that series has focused on the issue raised in the post, or a similar issue.

    I am concerned with political reactions to the incident and any conspiracy theories and other efforts to distract from long standing issues, such as the "constitutional rot" that is the subject of Jack's recent speech that he posted on. The speech is similar to an earlier post by Jack. Let's hope playing the baseball game unites its winners and the losers and that Americans will learn from them. We got through the Rep. Gabrielle Giffords shootings in Tuscon a few years back.

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  4. "Designated Survivor" would be an apt citation -- on ABC.

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  5. A combination: About 75% sacrosanct, 25 % disbelief, with disbelief increasing the further we get from 9/11.

    Jim Sensenbrenner chaired the judiciary committee in the years after 9/11 and heard regularly from the Continuity of Government Commission and legal scholars (I had the privilege of participating in some of these hearings). He would not budge on House members being elected. They at least enacted a quorum rule that allows a rump House to function--prior to the mid-00s, the House did not even have that.

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  6. Wouldn't it be simpler to require the House to meet by teleconference? Thus rendering the scenario virtually impossible?

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  7. Brett is proposing "virtual governing"? If the Reps. are at home, still in PJs, there might be time zone issues. Perhaps Brett has had teleconference experience - but 436 members? And what does C-SPAN do not to mention the public? Perhaps originalists might argue that a constitutional amendment would be required (unless the Rules provision would permit this). But hey, Brett's an engineer and he well demonstrates simplicity.

    By the Bybee [expletives deleted], might Russia ...?

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  8. There's only a six hour time difference between New York and Hawaii; You could resolve it by splitting the difference. Or you could just tell Hawaii's Reps to get up early and suck it up, they do get to live in Hawaii, after all.

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  9. This comment has been removed by the author.

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  10. There is value in people coming together in person though who knows what the future will bring -- holograms? Anyway, as seen in the show "Designated Survivor," there still will likely be ceremonial occasions etc. when all members come together.

    Shag cites "435." There are a few more non-voting delegates.

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  11. The states can hold elections within a few months.

    The only potentially necessary short term act of the House is enacting an appropriations bill. The surviving members of the House can do this. If the entire House is killed in a mass attack just before the prior appropriations bill lapses and the House has not already sent an appropriations bill to the Senate, the President could spend the current tax revenues on an emergency basis until the House can convene again.

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  12. "The surviving members of the House can do this. "

    Yeah, I'm sure that if the only surviving members were the reps from New England you'd be fine with their appropriations.

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  13. Mr. W: Yeah, I'm sure that if the only surviving members were the reps from New England you'd be fine with their appropriations.

    And that would be different from the current budget in what way?

    Do you realize the GOP establishment has been voting with the Democrats for some time now to fully fund the progressive government?

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  14. "Do you realize the GOP establishment has been voting with the Democrats for some time now to fully fund the progressive government?"

    If you really thought that you might as well vote for Democrats, right?

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  15. Hey, guys, I'm going to start calling balls and strikes. Keep in mind that yesterday was Flag Day as well as the birthday of our 45th president. In honor of the latter, I mailed yesterday, a day early, my federal estimated income tax payment. My patriotism had no bounds yesterday as this unselfish act was in no way an Emolument. I mentioned to someone that perhaps I might do my Marilyn Monroe Happy Birthday imitation for #45, and there was the response "He's no JFK," and I said "And I'm no Marilyn Monroe."

    But seriously [drum roll], imagine a second constitutional convention and how it might address the issue raised by Gerard's post, in addition to other issues raised by political dysfunction, constitutional crises, constitutional rot, and the like. How about such a convention being by means of teleconferencing that we could all watch? Or should the second convention be as secretive as the first convention? I'm off to the liberal lunch, some progressives.

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  16. Mr. W:

    Because I know for a fact the GOP establishment votes with the Dems to fund and has done next to nothing to reverse the progressive government, I have been advocating a constitutional convention of the states for some time now.

    The Tea Party fought to take back the GOP from its establishment and we lost. Time to bypass them.

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  17. What SPAM claims to know as a fact often if fiction. SPAM's Tea Party lost in 2016 to duffer Trump's Tee-Party, making SPAM and the Tea Party losers as SPAM concedes. Will Trump's infrastructure plan provide for the bypass that SPAM is relying upon? Is Brett the engineer on that project? Will that be a bypass to nowhere?

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  18. Shag: But seriously [drum roll], imagine a second constitutional convention and how it might address the issue raised by Gerard's post, in addition to other issues raised by political dysfunction, constitutional crises, constitutional rot, and the like. How about such a convention being by means of teleconferencing that we could all watch? Or should the second convention be as secretive as the first convention?

    The only constitutional convention of the states likely to gain the application of the necessary number of states will have the portfolio to re-limit government. For the most interesting of these efforts, see Convention of States.org.

    The Mandarin Caste's total war on a convention of the states with the portfolio of re-limiting government would make their current campaign to reverse the election of Trump look like a kindergarten playground squabble. For the duration of the process, he Democrat media will be little more than a propaganda outfit dedicated to misrepresenting the proposals and proceedings and defaming the delegates. Progressive front groups will be financing and manning riots, criminal mischief and violence at the convention and then moving onto state legislatures or conventions tasked with ratification to intimidate the participants.

    The only way such a convention can succeed is to bypass the propaganda by televising the proceedings directly to the people and using those proceedings to educate the voters back home. Unfortunately, a convention will also require heavy security and a sequester of the delegates and staff. It will get that bad.

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  19. Ah, SPAM's "j'accuse" of the Mandarin Caste's declaration of war on SPAM's proposed convention. I didn't get a casting call. Who did? SPAM is once again emulating Chicken Little heavy security needs for this convention.

    By the Bybee [expletives deleted], should that "mandarin Orange Caste"?

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  20. Shag: I didn't get a casting call

    You are not media and I am having a hard time seeing a fossil such as yourself donning a mask and rioting.

    SPAM is once again emulating Chicken Little heavy security needs for this convention.

    Really?

    Berkeley

    DC

    Wisconsin

    Black Lives Matter

    Republican baseball practice

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  21. SPAM sure provides a lot of links for one who's obviously missing one as he tilts at windmills (of his mind).

    Quadratically I may be to a fossil what SPAM is to peat. If SPAM lives long enough through his middle age, SPAM might get there. Meantime, SPAM can continue with his incomplete combustion.

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  22. Shag:

    I am not the one you should be concerned about engaging in combustion.

    Portland

    DNC paid thugs at Trump rallies

    #HuntRepublicans

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  23. Could it be that SPAM isn't aware that he's been doing a slow burn all these years? Note more links, but not the one he's missing.

    By the Bybee [expletives deleted], I recall the numerous times at this Blog over the years that SPAM has referenced his understanding of the 2nd A justifying armed revolution when governments don't do as he thinks they should. Frankly, I think that Glock in his jock shoots only blanks.

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  24. This comment has been removed by the author.

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  25. Shag:

    Thankfully, for the nation, it does not appear we have to worry about the Democrat resistance pulling off a "Second Amendment solution."

    Your resistance fighter at Alexandria was too inept to kill any of the couple dozen unarmed civilians on that baseball field firing dozens of rifle rounds at point blank range.

    Your resistance certainly does not want to throw down with our well-armed Tea Party of military veterans and hunters to test our ability to shoot.

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  26. As I noted, the provision in question is:

    "When vacancies happen in the Representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies."

    Later we have this:

    "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."

    So, it is unclear to me that Congress right now doesn't have the power to pass legislation that sets forth -- if certain criteria are met such as a specific number of vacancies happening at once -- regulate the "time, places and manner" of special elections. So, e.g., if 50 members of Congress are killed in a plane crash, let's say, a special election has to be in place within the month. Could be sooner.

    This would still provide a lag time but the democratic value of having the people in the state elect -- which would be important given the tragic results and the desire of the people having a role -- is very important too. We survived months of President Lincoln handling the Civil War without Congress in session. We can survive a rump House, a Senate and the President handling things for a month or whatever.

    Again, I'm open to proposals but this seems perfectly credible too and no amendment is necessary.

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  27. Au contraire, SPAMella, I had no resistance fighter at Alexandria nor am I involved with any resistance of the sort in your bile at 5:41 PM. I don't know how well armed your claimed "Tea Party of military veterans and hunters" [or your] ability to shoot." I don't test your ilk physically except in self-defense but I take this as a physical threat by you, SPAMella, which I may have to report to authorities as appropriate. And I am copying your entire comment below in case you decide to delete your 5:41 PM comment:

    ***

    Bart DePalma said...
    Shag:

    Thankfully, for the nation, it does not appear we have to worry about the Democrat resistance pulling off a "Second Amendment solution."

    Your resistance fighter at Alexandria was too inept to kill any of the couple dozen unarmed civilians on that baseball field firing dozens of rifle rounds at point blank range.

    Your resistance certainly does not want to throw down with our well-armed Tea Party of military veterans and hunters to test our ability to shoot.

    5:41 PM

    ***

    By the Bybee, SPAMella, who won the game last night and what was the final score? Oh, and have a good day, SPAMella, with the Bundy Bunch; but don't circle around the campfire with them.

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  28. "The Mandarin Caste's total war on a convention of the states with the portfolio of re-limiting government would make their current campaign to reverse the election of Trump look like a kindergarten playground squabble. For the duration of the process, he Democrat media will be little more than a propaganda outfit dedicated to misrepresenting the proposals and proceedings and defaming the delegates. Progressive front groups will be financing and manning riots, criminal mischief and violence at the convention and then moving onto state legislatures or conventions tasked with ratification to intimidate the participants."

    It's amazing how deeply entrenched the modern conservative movement's sense and narrative of victimization is, how much a part of it's essential soul it is.

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  29. Democrats won 11-2.

    In the spirit of the collegiality honored in that game, I offer this discussion of the events that ultimately led to the verdict handed down today:

    http://www.nationalreview.com/corner/437559/few-thoughts-killing-philando-castile

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  30. "at point blank range"

    He was a hundred+ feet from most of those he hit.

    https://www.vox.com/2017/6/14/15800480/shoot-ground-gunman-open-fired-gop-baseball-practice

    That's only 'point blank' to someone who doesn't understand the English language.

    But if you're just trying to argue that recent right wing domestic terrorists, like Robert Dear, are better murderers, I guess that can be conceded.

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  31. As to the topic...I think this is a perfect example of why one shouldn't adhere to a strict textual literalism, but should instead discern the principle at stake and also think about functionality.

    The principle from the text is the importance of the House members being elected. But like the Scriptures, the Constitution was made for Man, not man for the Constitution, and adhering to the principle in a literalistic way that defeats functionality strikes me as foolish. If there were a mass killing of Congress, since Congress would in that instance quite likely be called upon to play an immediate and critical role (in crafting/approving a response for example), then I would say 1. elections should be set up asap but until then 2. alternative methods such as appointments should be on the table.

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