OxBlog

Monday, July 12, 2004

# Posted 6:25 AM by Patrick Belton  

THIS CONVERSATION seems to me to be rather silly. The question is whether elections ought to be postponed in the event of a terrorist attack. Constitutionally, this is probably allowable, as long as it is done (or expressly delegated) by Congress, and with a key role being played by state legislatures: it falls under Congress's competency under Article II, Section 1 to set a single national date for the meeting of presidential electors for the electoral college's election of the president, currently codified at 3 U.S.C. 7. The method and timing of the electors' selection rests solidly in the hands of the state legislatures, under Article II, which gives them complete power to determine how the electors are to be selected (including whether even to hold a popular election at all, which is a matter for the state constitution to work out). But it falls under Congress's powers to determine when the electoral college must meet, and so it could theoretically postpone the meeting of the electoral college, giving states the ability, if they so chose, to move their elections back as well. (Compare this with the case of the timing of congressional elections, which under Article I, Section 5, Congress can move entirely under its own discretion - the Constitution grants Congress the power to set the dates of popular elections to the House, which the 17th Amendment extends to the Senate as well). Congress couldn't extend the term of the president past four years (article II), but it could, by moving the date of the convening of the electoral college, give the states the opportunity to postpone the election of their presidential electors - consonant with the 20th amendment fixing the term of the president as lapsing January 20, after which point under current legislation the Speaker succeeds to the empty presidency if a president-elect or vice president-elect has not been selected.

But the more pertinent question, it seems, is political - which in turn ought to be read against the context of American political history. The presidential election of 1864 was held at the ordinary time, in spite of the existence of a civil war threatening the very continued existence of the polity, at least in an unfractured form. By analogy, elections under the shadow of a terrorist attack probably ought to be held at the ordinary time as well.

This issue shouldn't be read together excessively with continuity of government and doomsday planning, but there are also useful analogies, I think, to be drawn from the very conservative principles which have guided government continuity planning. In this, the US is distinct from Britain in that the constitutional forms of the government - the cabinet, both chambers of Congress, the Supreme Court, the executive agencies- are all to be preserved intact, underground if need be, in the event of an utter armageddon. By contrast, the Commons, in its doomdsay scenario, has legislation ready for emergency use to dissolve itself and relegate all executive power to civil defence commissioners in eleven districts throughout Britain, who will be expected to relinquish emergency command to the national government as soon as possible after the catastrophe. Other measures are in place to ensure the survival of the Government - but not their families- and the Royal Family.

The only area where current US constitutional arrangements are silent, and possibly lacking, is how the Congress is to be reconvened should large numbers of its members be killed or incapacitated. Under the House's interpretation of its quorum rules, a majority of living members may meet to constitute the House. This interpretation is fine as long as the surviving members of Congress are ambulatory, but it doesn't permit the House to meet - even to amend its quorum rules - if, say, a majority of members are living but incapacitated - although there may possibly be room for exercise of speaker's discretion. Reconstitution of the Senate may be immediate, with governors being permitted under the seventeenth amendment to fill vacancies by temporary appointment, but the House, as the people's body, may only be constituted by direct election. Where constitutional ambuity might lie is, among other issues, the selection of the Speaker by an indeterminately constituted or unconvenable House, who might well be called upon to immediately succeed to the presidency. CRS has a report on this and related questions, as does Brookings.

But these latter issues involve catastrophic, nationwide devastation of an order principally contemplated during the darkest days of the Cold War, and the discussion of even these doomsday issues has been marked by careful, salutary regard for the continuity of the constitutional forms . It seems to me that the appropriate political response to a grave terrorist attack which did not challenge the territorial or economic viability of the United States should be guided by similar, principally conservative, concerns - to make as little change as possible due to the attacks in the political life of the republic. Josh?
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