In the wake of the announcement that President Donald J. Trump tested positive for the coronavirus, policymakers must consider potential scenarios in which the president becomes incapacitated and is unable to discharge the powers and duties of the presidency. It is imperative to also consider the implications for our government in the event of incapacitation of sitting members of Congress.
While the 25th Amendment to the Constitution deals with the transfer of power in the event of the president’s incapacitation, no such mechanism exists for members of Congress. Procedures are also established for replacing members of Congress who die in office or leave office before the end of their term — the House through special elections and the Senate through gubernatorial appointments — yet a great deal of ambiguity exists should sitting members of either chamber still be alive but incapacitated.
In the weeks and months after the terrorist attacks on Sept. 11, 2001, increasing attention was paid to the succession process in the event of an incident that renders numerous members of Congress incapacitated. The House of Representatives formed a bipartisan task force to address the issue. Two think tanks — the American Enterprise Institute and the Brookings Institution — also formed a Continuity of Government Commission that issued a range of recommendations for ways to better protect the continuity of the legislative branch.
Yet few changes have been implemented despite history being replete with examples of near-calamitous events involving multiple legislators. Since 9/11 alone, Americans have sadly been given many reminders of the vulnerability of members of Congress including the mailing of letters laced with anthrax spores to congressional offices, the shooting at a congressional baseball practice, and the coronavirus that is known to have infected more than a dozen sitting members of Congress along with over 100 Congressional staff members so far.
Congress needs a majority of at least half of its members to constitute a quorum to conduct business. A situation in which Congress is unable to assemble a quorum because more than half of its members are incapacitated would be a time in which a functioning government is needed more than ever in our country, yet under its current design our legislative branch would be unable to function in such a crisis. Congress’ powers, including the ability to make laws, declare war, raise and provide public money, and conduct oversight and investigations, could all be curtailed if it is unable to assemble a quorum.
The implications for our national security, economic security, and societal stability are stark. Also troubling are the implications if a quorum can be assembled but one that alters the party composition of able voting members. Such a scenario could call into question the very legitimacy of the Congress.
Just as our nation was unprepared for the COVID-19 pandemic, we are unprepared for a Constitutional crisis of this magnitude. We can hope such preparations are never needed, and doomsday scenarios may seem improbable. But the historic events that transpired in 2020 are hopefully a lesson that even unlikely scenarios can become reality, and there is still time for us to be proactive instead of reactive.
It will be imperative to examine solutions in a thoughtful, bipartisan manner that preserve our democratic traditions, respect the will of constituents who elected members of Congress, and respect the privacy of elected officials. Failure to do so comes at significant risk to our government’s ability to function during a major emergency when it may be needed most.
Matt Abbott is director of Government and Diplomatic Programs at the Chicago Council on Global Affairs. He previously served as a staff member in the United States Senate and United States House of Representatives. The views expressed in this article are his own and do not represent any institutional positions.