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House May Vote on Incapacitation

The House Rules Committee plans to move forward as early as this week with a rule change allowing the Speaker to reduce the quorum requirement in the event of mass incapacitation of lawmakers.

Under a draft version of the proposal circulating last week, the Speaker could lower the number of Members required for the House to conduct business after two lengthy quorum calls had failed to produce a majority and the Sergeant-at-Arms reported that “catastrophic circumstances … render[ed] Members incapable of attending the proceedings.”

Almost three years after the Sept. 11, 2001, terrorist attacks, the House still lacks a way to proceed in the event large numbers of Members were rendered unable to perform their duties, but not killed, in a disaster.

Sources indicated Speaker Dennis Hastert (R-Ill.) wants to move the issue before the recess and the upcoming party conventions, although consideration of the measure could be pushed back until after Labor Day. A spokeswoman for Rules Chairman David Dreier (R-Calif.) confirmed that the panel was “moving forward.” Hastert’s office did not return calls for comment.

Burson Taylor, spokeswoman for House Majority Whip Roy Blunt (R-Mo.), said the issue was tentatively on the schedule. “There will be a push to get it done [this] week,” and whether it comes up will depend on the rest of the floor agenda. “I know there is a sentiment out there that … it shouldn’t be even this late in the game.”

As the rules now stand, if 200 Members died in an attack, the whole number of the House would then be 235, and a quorum of 118 would allow the House to conduct business. But current rules dictate that incapacitated Members would still be included in the quorum calculations, meaning that if 200 Members were alive but unable to make it to the chamber, the House would be paralyzed.

The existing standard was set by Speaker Joe Cannon (R-Ill.) in 1906 but not codified until the beginning of the 108th Congress, when the rules were modified to allow the Speaker to adjust the whole number of the House, and thus its quorum, upon the death or resignation of Members.

The draft rules change now being proposed by Dreier is based in part on Cannon’s 1906 ruling, which determined that the whole number of the House includes all those “chosen, sworn and living.”

A handful of constitutional scholars interviewed, however, questioned the constitutional basis for that ruling and Dreier’s current proposal, unanimously deeming both of dubious constitutionality. But most conceded that the move is nonetheless a wise one in the current climate, as a stopgap measure of sorts until the Constitution can be amended to explicitly allow such a change.

At a hearing on the issue in late May, Dreier supported his moves against such arguments by quoting Federalist No. 23, in which Alexander Hamilton wrote that because it “is impossible to foresee or define the extent and variety of national exigencies … [and] the circumstances that endanger the safety of nations are infinite, … no constitutional shackles can wisely be imposed.”

“I believe that the Constitution was adopted to facilitate the functioning of representative government, not to be a stumbling block, particularly in times of national crisis,” Dreier added.

But conceivably, under this rule the House could function with a quorum of a dozen or fewer, something many scholars find anathema to the intent of the framers and to the Constitution itself.

At the end of the hearing, then-Parliamentarian Charles Johnson reluctantly conceded that such a rules change is not flatly unconstitutional, but he also pointed to Article 1, section 5, which addresses smaller-than-majority quorums.

“They specified two items of business that may be transacted by a smaller number than a majority of the House,” Johnson said. “Those two items are adjourning from day to day and compelling the attendance of absentees. Whether a third item — an item like re-basing the whole number of the House in the wake of a catastrophe — validly may be added to that category without amending the Constitution is a very serious question.”

At the start of the May hearing, Johnson asked rhetorically, “Is a rules change of this sort constitutionally infirm? I don’t have a clear answer. If the House was to wait and do such a rule during a catastrophic circumstance, clearly then the work product [would be questioned]. I am not saying a work product developed during a dispassionate time such as this would be less subject to a collateral challenge.”

The only constitutional expert who testified at the hearing, former Clinton administration Acting Solicitor General Walter Dellinger, asserted that the House is completely within its constitutional authority to drastically reduce its quorum though a rules change, and said such a move would be considered by the courts as not subject to challenge.

Dellinger testified that “at the very least, such a rule is advisable as a stopgap measure while possible constitutional amendments addressing the question are debated by Congress and the states.”

But Dellinger also cautioned that because the “goal of the rule change is to safeguard the House’s ability to function as a representative body when external events have rendered the House otherwise unable to act, … constitutional legitimacy demands that the rule be narrowly tailored in order to prevent partisan abuses.” As such, he said such a rule should “take effect only upon bipartisan recognition” of extraordinary circumstances.

The draft circulating does not allow for any input by the minority party, and it states that an “announcement” by the Speaker of catastrophic circumstances is not subject to appeal. A majority voting to adjourn, however, would essentially set the clock on the quorum calls back to zero.

A senior Democratic aide indicated that the minority staff on Rules is currently working to revise “bits and pieces” of the draft.

Regardless, significant questions remain about the propriety of such a rule absent a constitutional amendment.

“The House has explicit constitutional authority to make its own rules,” said Rep. Christopher Cox (R-Calif.), who chaired a task force in the previous Congress on the continuity issue. “There’s broad latitude. Even so, if we scrape too close to that line,” we risk a constitutional challenge, he said.

Constitutional scholars echoed those questions and further asserted that the rules change likely would be unconstitutional.

Steven Smith, a professor at Washington University in St. Louis, author of six books on Congress and a former Hill staffer, said he believes there would be a problem with such a rules change under existing constitutional provisions. “I don’t think you can effectively reduce the quorum by a rule,” he said. “I think there would be some question of the legitimacy of the whole process, and if that can be avoided it should be. Under emergency circumstances the House might get away with it, but … the quorum has to be constitutionally determined, and the House shouldn’t pretend otherwise.”

Smith’s thoughts were echoed by a number of other constitutional scholars.

Former Speaker Tom Foley (D-Wash.) made a separate point. “The reduction of the quorum handles one part of the problem, but it doesn’t handle the problem of broad legitimacy,” he said in an interview. “It doesn’t deal with the other part of the problem: the broad base of presence that is part of Congressional legitimacy, which could be severely compromised by a very small group of Members constituting a quorum.”

Foley co-chaired the Continuity of Government Commission, a private group that studied issues of Congressional continuity in conjunction with the American Enterprise Institute and the Brookings Institution.

Sen. John Cornyn (R-Texas), who has a constitutional amendment pending in the Senate that would give the states authority to write legislation allowing for the temporary appointment of lawmakers in both chambers if large numbers were killed or incapacitated, also challenged the House’s ability to pass such a rule.

“The proposal to eviscerate the quorum rule is unconstitutional, because it turns Members into non-Members. Only a constitutional amendment can ensure an operational Congress in previously unforeseen situations,” Cornyn said in a statement in June.

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