Senator John Cornyn makes some excellent points about the need for a clear procedure for the re-establishment of Congress, should an attack or natural disaster wipe out a majority of our federal legislature. However, he is incorrect in saying that there is no such structure (perhaps unsatisfactory) currently in place.

This commitment to federalism and national representation has a cost, however: Under the majority quorum requirement, terrorists could shut Congress down by killing or incapacitating a sufficient number of representatives or senators.

Our ability to ensure Congress would be able to continue to function under the current constitutional restrictions is woefully limited. States have power to allow their governors to appoint senators in cases of vacancies, and 48 states have elected to do so. But the Constitution provides no immediate mechanism for filling vacancies in the House, nor for redressing the problem of large numbers of members in either chamber being incapacitated.

Vacancies in the House can be filled only by special election. That takes months to conduct, for reasons of mechanical feasibility, democratic integrity, and the rights of military and other absentee voters.

What's more, it is impossible to address the problem of incapacitated members. If 50 senators were in the hospital and unable either to perform their duties or resign, they could not be replaced. The Senate could be unable to operate for up to four years.

This is a serious concern of course, and I think it is worthwhile considering amending the Constitution to further address this possibility. However, Article V of the Constitution does provide a clear, legal, and democratic method for re-constituting Congress, should such a need arise.
Article V

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; ...

The states maintain the power to call a Constitutional convention, without the need for Congressional approval or involvement. Such a convention could revise the Constitution as necessary, even to the extent of appointing new Senators, Representatives, and Executives. In theory, the power of such a convention would be unlimited, since it could rewrite the Constitution itself.

A Constitutional convention could be messy and problematic, and it may in fact be desirable for us to amend the Constitution to provide a simpler, more limited solution. However, Senator Cornyn is mistaken in thinking that the Senate, or any branch of our government, could be constitutionally crippled for years at a time.



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