Continuity of government

Senator Feingold is proposing a Constitutional amendment that would eliminate state legislatures' authority to empower Governors to make temporary appointments to the U.S. Senate. One realizes that in every Congress, dozens of amendments are introduced as a matter of course before suffocating in committee, and regular readers may recall that I have a highly skeptical view of the circumstances in which amending the Constitution. By any measure, however, this hasty and harebrained move is outstandingly reprehensible. Not only is it unnecessary (nothing in the Seventeenth Amendment requires state legislatures to permit gubernatorial appointments, so, if we really want to do away with them, we can do so without amending the Constitution), not only is there no good reason to do this (that a Democratic governor embarassed the party fails dismally in the mustard-cutting stakes), but there is at least one very good reason not to do it.

Think of the issue through the lens of continuity of government, an issue debated ad nauseum after 9/11. What happens in a crisis where a significant fraction of Congress has been wiped out? Consider, for example, the Tom Clancy scenario where a plane is flown into the Hall of the House during the President's state of the union speech. What happens next? Congress as a legislative body drops out of the equation, because the House, unlike the Senate, lacks any kind of survival mechanism. Whereas vacant seats in the Senate can generally be filled by gubernatorial appointments, allowing it to get back on its feet fairly quickly, there is no comparable process by which the House could be reconstituted, because vacant House seats can only be filled by special election. In the chaos following the sort of attack that wipes out Congress, such an election could take months, leaving us with no functioning legislature in the meantime.

That's a horrible result, particularly for those (supposedly including Feingold) who are skeptical of unchecked executive power. It would be absurd to suggest that the nation hold its breath and wait for Congress to get back on the rails; in such a scenario, the President would not - frankly, could not - wait months for Congress to provide a statutory response. The President would act as necessary, and to the extent that she could not do so within the system, she would do so outside of the system. That is obviously suboptimal: systemic norms then become irrelevant and lose their power to constrain. While extraordinary times always engender extraordinary measures, an optimal system has processes built in that minimize the extent to which a crisis forces us out of its normal operation.

Feingold would make a bad situation worse. In the event of the kind of catastrophic attack that we're contemplating, it seems likely that much of the cabinet may have been wiped out, also. Because of the Senate's appointive survival mechanism, however, it would be quickly reconstituted, and this has obvious value. Even without a House to allow the passage of legislation, the survival of the Senate would allow something close to normal (albeit, given the circumstances, one supposes highly deferential) evaluation of the President's replacement appointees, as opposed to the President simply appointing whoever seemed appropriate, and at least some legislative oversight of the executive's response. Feingold's dimwitted and shortsighted proposal destroys the flexibility that makes this scenario possible. If it passes, Senator Feingold's legacy will be that in the event of a catastrophe, our nation's future will be 100% in the hands of whichever man or woman is the senior surviving member of the Presidential line of succession. Paging Lord Acton.

The temporary appointment power was not designed with such eventualities in mind, but as with the electoral college, it has a value that transcends the purpose for which it was invented. It operates as a safety valve, and anyone who is seriously concerned with executive power would recognize it as paramount. I cannot understand how Feingold, who styles himself a critic (indeed, scold) of the robust executive, who thought that the Patriot Act was a bad result of crisis, could put petty vengeance for embarrassing the party over the survival of the Republic.

Post facto:
Feingold's amendment: the worst kind of pig-ignorant populist nonsense (8/20/09)