norm’s canary

America is a Story of Close Calls…

America is indeed a story of close calls.

Without the American Succession Act and other interventions, the United States could have been plunged into political anarchy on more than one occasion if the pendulum had swung ever so slightly the other way.”

Harry Truman had no vice president in place for the longest time after he became president after FDR’s passing. What if the assassination attempt at Blair House had been successful?

Lyndon Johnson did not have a Vice President for more than a year after Kennedy’s assassination. What if the then-Speaker had been too old to succeed LBJ, or the President Pro Tempore had been too old?

What if Vice President Andrew Johnson and Secretary of State William Seward had been successfully murdered in the conspiracy that took Lincoln’s life? When the House almost impeached Johnson, who would have become president? Benjamin Wade, the President Pro Tempore of the Senate? Who was he?

What if the explosion aboard the U.S.S. Princeton had killed President Tyler? Who would have succeeded him in 1844?

What if the Pasha had killed Adams and Jefferson during the Tripoli scrimmages? What then? Who then?

These succession close calls exposed several critical weaknesses in America’s response to a cataclysmic event.

The line of succession in our Constitution does not provide for what-ifs beyond the federal level. What if the federal government had been eradicated in a singular, well-placed mushroom cloud or the unchecked spread of a global pandemic like COVID-19?

For Continuity’s Sake

American Enterprise Institute resident scholar Norman Ornstein has been raising essentially this same series of questions about what would have happened if a bomb had wiped out the U.S. government, had United Flight 93 crashed into the U.S. Capitol instead of fields in Shanksville, Pennsylvania on 9/11 instead.

Had United Flight 93 landed on the U.S. Capitol, which would have no doubt killed or injured many members of Congress, too, Ornstein asks how you would have operated the government if no quorum of Congress could be called.

United Flight 93 might have had that effect on American history had the flight not departed Newark Airport some 40 minutes late – some 40 minutes that gave an early advantage to her hero passengers who had heard about the trade center attacks by the other terrorists and crashed their plane into southern Pennsylvania fighting the terrorists on board in fierce hand-to-hand combat to prevent just such a greater tragedy.

Ornstein noted at discussions in the early 2000s that the Constitution dictates that House members may be replaced only through special elections, which Ornstein rightly notes might take months to organize.

So, he asked, what do you do if there is no Congress, which he also says means that no one exists with the authority to declare war, appropriate money, or make laws? Do you declare Martial Law?

Since then, Ornstein has made it his mission to have a “will,” for lack of a better term, of what will happen to American governing if Congress can no longer govern either.

In my political novel, Hoya: The Watchmen Waketh, a fictional nuclear bomb is placed by terrorists at the foot of the 14th Street Bridge in Washington when Congress was not in special session but in town, and a so-called “designated survivor” had not been spirited to a safe location at the hour.

Suppose that the bomb in my novel had detonated at the 14th Street Bridge. Who would govern America if the Capitol, the Supreme Court, and the Executive Branch, including this White House, had been destroyed, and with it all or a majority of its members?

When he first realized what a problem this issue was for America, Ornstein very successfully lobbied Congress to create a blue-ribbon commission on the Continuity of Government. The Commission was co-chaired by former Wyoming Senator Alan Simpson and the highly respected Jimmy Carter & Bill Clinton White House counsel, Lloyd Cutler.

As expected, Congress conducted limited hearings into the Commission’s work and recommendations. The Commission, for example, examined a whole number of Ornstein-inspired what-if scenarios. What if a deranged Islamic extremist blew up a suitcase bomb at an Inauguration? What if a sarin attack incapacitated a significant number of U.S. Senators? What if the public does not believe that any survivors constitute a legitimate government? What if the President, Vice President, Speaker, and President Pro Tempore are killed, but a new Congress of only a few members replaces an admired Secretary of state president with a not-so-admired Speaker that a small handful of members elevate to President thanks to the 1947 Succession Act?

The result, Ornstein argued, would be terrifying. To say the least.

If that terrorist bomb in my political novel had exploded at the 14th Street Bridge, even though it was a weekend in the book, with Congress, the Supreme Court, and the White House offices and departments working, America would probably not be able to field a legitimate government in my opinion.

Continuity of Government Commission

Established in 2002 as a joint effort of

the American Enterprise Institute and

The Brookings Institution.

Honorary Co-Chairs: Former Presidents

Gerald Ford & Jimmy Carter.

Other Members: Included former elected officials,

academics, cabinet officials and senior policy advisers, including Lloyd Cutler, Kenneth Duberstein,

former Speaker Newt Gingrich, former Congressmen

Robert Michel and Kweisi Mfume,

former White House Chief of Staff Leon Panetta,

former Secretary Donna Shalala and

former U.S. Senator Alan Simpson.

First Report: Published in 2003, the Commission

addressed findings and recommendations related

to the death or incapacitation of members of

Congress in the event of a terrorist attack like 9/11.

Second Report: Published in 2009, the Commission’s

second report recommended amending the rules for succession to the presidency by removing

members of Congress from the line of succession.

Third Report: Published in 2011, the Commission

reviewed the role of the Supreme Court if

a quorum would not be possible to secure.

The Commission dissolved following release of

the Third Report in 2011

“What the hell do you do then?” asks my fictional 47th president of the United States in the forthcoming sequel to that scenario, “Hoya Saxa: Honor Among Grey Ghosts.” Who knows what would have happened to American democracy in the years ahead? Decades of Martial Law? Decades of socialism? Decades of life under extreme terror?

So, what should we do about this ongoing problem, America? This is a genuine threat.

thomas invites you to read:

the continuity of government commission

We start by picking up with the Commission. Dr. Ornstein last left it with us, Thomas, proposing as quickly as possible, a workable, realistic line of succession that respects the Constitution and what our founding fathers envisioned with a practical solution that uses the best of what our government has to offer – the resources of our states through their Governors.

Dr. Ornstein and the Commission believed that in the event of federal incapacitation, we turn to our nation’s governors for the next generation of needed leadership.

Suppose Congress is decimated and cannot fulfill its obligations. In that case, our Governors should appoint replacements within 72 hours who are capable of representing their state’s needs in the federal government if they determine that a majority of their members have been killed or incapacitated.

Those replacement members would be required to elect a new Speaker of the House and new President Pro Tempore of the Senate within 48 hours of their appointments to Congress.

Norm Ornstein had one other interesting observation worth noting – that members of Congress are not ‘Officers’ of the government since they are not members of the Executive Branch but are members of the Legislative Branch.

Ornstein said that Congress should stipulate who will be the succeeding President based on merit versus tenure, but that no member of the House or Senate can be or might be that designee.

This would take the conflict of interest out of selecting a presidential successor.

We should start there with great thanks to Dr. Norm Ornstein and the Commission.

From now on, let us also designate by law that no member of the Cabinet can be in proximity to the other until that line of succession Act is better revised.

If there is a calamity of the type we have avoided as a nation in the past, arguing over the meaning of words, such as what an officer is, or who is more senior than the other, or whatever, we will be doomed to fail to overcome our travails.

We owe it to the continuity of government to make it so. Let us make it so, please.

Norm Ornstein’s canary in the coalmine counsel is a legitimate warning we must all heed now.

Today, not tomorrow.

Back to Featured Articles