09/26/2014 05:18 pm ET Updated Nov 26, 2014

Continuity of Government 50 Years after S.J. Res. 139

Fifty years ago, on September 28 and 29, 1964, the Senate unanimously approved S.J. Res. 139, the outline for the Twenty-fifth Amendment which provided procedures to fill a vice-presidential vacancy and to declare a presidential inability. That Amendment occurred after a talented young senator, Birch Bayh, led a bipartisan effort to address the principal gaps history had revealed regarding America's provisions for ensuring presidential continuity. Ten months after the assassination of President John F. Kennedy and less than ten years after the first serious illness of President Dwight D. Eisenhower, Bayh and his colleagues were on their way to producing a thoughtful Amendment which, a half century later, has proven itself a prudent and effective response to some difficult problems.

The work of safeguarding government continuity is far from done. As Norman Ornstein recently pointed out on the eve of this year's anniversary of 9/11 history warned that day 13 years ago of new ways in which our government is vulnerable to devastating disruptions yet Congress has inexplicably failed to respond.

Ornstein has a lot of standing to address these problems, among other reasons because following 9/11 he and his frequent co-author, Tom Mann, created a blue ribbon Continuity of Government Commission which carefully studied these problems and proposed possible reforms. Unfortunately, Congress did next to nothing in response.

Here are some of the remaining problems, many of which the Continuity of Government Commission addressed:

1) The current line of presidential succession places the Speaker of the House of Representatives and President pro tempore of the Senate after the vice president. Presidential death or inability when the vice presidency was vacant could produce a shift in party control of the White House as it would have 2/3 of the time since 1969. Senator Patrick Leahy is an exception but most recent Senate presidents pro tempore have been octogenarians (or older) well past their prime, and some (e.g. Strom Thurmond) were never suited for the presidency.

2) Although the current line includes 16 presidential successors after the vice president, (i.e., the two legislative figures mentioned above and then the heads of the executive departments or Cabinet) most of those listed would be totally unsuited to act as president under the circumstances in which they might be called to do so. Imagine an attack on D.C. that eliminated many at the top of the line. Does it really make sense for the Secretary of Interior or Education to lead the nation in a crisis that would dwarf any history has presented? Regardless of their abilities, they are not national security experts and few people know who they are.

3) No provision has been made for declaring a vice president disabled, a gap that could be significant if the president became disabled or died during such a time since the Twenty-fifth Amendment gives the vice president a role in making such decisions.

4) If a large number of members of the House of Representatives were killed or disabled from an attack, as could have occurred on 9/11, there is no suitable mechanism to replace them. Whereas many states allow the governor to name a successor when a Senate seat falls vacant, the Constitution requires that new members of the House be chosen by election. If the House's membership was so depleted that it could not act or act legitimately, law-making would be impossible since it requires agreement of the House and Senate. When Ornstein's and Mann's Commission raised this problem after 9/11, some House members justified inaction based on the pious non sequitur that the House should be elected. Of course it should be, but there ought to be a safety valve to allow the government to function at a time of national emergency.

5) The Electoral College allows a president to be elected even though he or she receives fewer popular votes than an opponent. This problem does not, strictly speaking, involve presidential continuity although it does speak to the propriety of the electoral outcome.

6) If nonetheless the Electoral College remains, there are questions regarding its operation if the leading presidential and vice presidential candidate died at some stages before the inauguration.

7) If no candidate received an electoral majority and the election of president and vice president were thrown into the House and Senate under the contingent electoral system, the House must vote among the top three recipients of presidential electoral votes and the Senate among the top two recipients of vice-presidential electoral votes. Although the Twentieth Amendment, which was ratified in 1933, authorized Congress to provide for the death of any of those candidates, it has never done so.

8) And suppose an attack or natural disaster interfered with presidential voting in a significant part of the country?

Some of these problems are more important than others and Congress may not be able to resolve all of them. But 50 years ago, Bayh and his colleagues achieved their first legislative success only 10 months after Kennedy's assassination. Isn't it well past time, as Ornstein suggests, that Congress addresses some of these remaining gaps?