What If?

Early on the morning of June 14, 2017, James T. Hodgkinson drove his van to a park in Alexandria, Virginia, where some Republican congressmen and staff were practicing for a baseball game against their Democratic colleagues. Apparently Hodgkinson was angry at President Trump and other Republicans because he believed their policies hurt poor people; he took a military-style rifle and a handgun from his van, walked to the chain-link fence surrounding the field, and fired more than fifty rounds of ammunition at the players.

Capitol Police officers assigned to Representative Steve Scalise, a high-ranking member of Congress, ran onto the field, drawing the shooter’s fire and finally killing him—but not before Scalise was critically injured, along with another congressman, two officers, and an aide.

This episode was terrifying. And it could have been even worse, if half or more of Congress had been playing ball that day or cheering from the stands during the game. Without the presence and courage of the police, many people might have been killed or permanently disabled on the morning of the 14th. This would be a terrible tragedy that might also provoke a constitutional crisis.

Photo by Lara Szypszak, March 26, 2016

Chapter 13 of Fault Lines in the Constitution is called “Knock Knock. Is Anybody There?” and deals with the issue of continuity in government. What happens if large numbers of elected federal officials die or become incapacitated? Who runs the country?

The Constitution requires that missing members of the House be replaced by election. Governors can appoint new senators to finish an incomplete term but not representatives. This process works fine when only a couple are out of pocket. But it could take months to hold elections across the country to fill empty seats on a large-scale basis.

And, in the meantime, another constitutional wrinkle could gum up the works. This one is the requirement that Congress can take action only when a quorum (a majority, or, one-half of the members plus one) is present. It sounds logical but could present serious problems after a mass attack and casualties.

Photo by Warren K. Leffler, 1960 May 26. hdl.loc.gov/loc.pnp/ds.04924

What if a majority of the members are killed or disabled? If they are alive but unable to reach the floor of the House of Representatives, it might be impossible to muster a quorum. Congress couldn’t take any action.

If they are killed, then the quorum of those remaining might be a small number of officials. If ninety-nine, for example survive, then fifty amount to a quorum, and twenty-six could create laws for the whole country. Would Americans tolerate that?

We go into other distressing ambiguities about the Constitution and continuity in Fault Lines. Unfortunately, as the recent shootings show, the “what if” problem could become real. Congress should act before it happens.

What do you think Congress should do?

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