Congress Cannot Be Appointed

In the months following the September 11th terrorist attacks, questions arose about whether Congress could continue to function if many of its members were killed or injured in a future terrorist attack. These concerns resulted in the creation of a commission that advocated a first in American history, namely the appointment of individuals to the U.S. House. A constitutional amendment has been proposed that would provide the method for such appointments following a catastrophe that killed or disabled a majority of the people in Congress.

I strongly oppose this constitutional amendment, because I believe an appointed Congress would become an unaccountable, tyrannical Congress. Over the past year I met with top scholars, attorneys, and colleagues who reject the idea of an appointed House of Representatives. Fortunately, we had success in turning many members of Congress against the proposal through a series of public lectures, meetings, and published articles. Legislation I cosponsored, recently passed by the House Judiciary committee, will enable congressional districts around the nation to hold emergency elections without resorting to political appointments. The bill has the support of congressional leadership, and should reach the House floor in coming months.

At its heart, the proposed constitutional amendment is fundamentally at odds with the right of the people always to elect their members of the House of Representatives. The term “appointed representative” clearly is an oxymoron. The House, designed as the most directly representative branch of government, must be elected to have any legitimacy. Even “temporary” appointees would be unacceptable, because the laws passed would be permanent.

Those advocating an appointed Congress argue that a U.S. House consisting of only a handful of surviving members would not be seen as legitimate by the public. In fact the opposite is true: the legitimacy of appointed “representatives” would be strongly questioned, especially by those who disagreed with their actions. Appointees would be viewed suspiciously as recipients of political patronage, regardless of the system put in place to appoint them. Appointees would not be seen as legitimate because they would in fact not be legitimate. Without exception, every member of the House of Representatives has been elected for over two hundred years. We can amend the Constitution, but we cannot force the public to accept the loss of its voting franchise.

One very important point should be emphasized: the Constitution already provides the framework for Congress to function after a catastrophic event. Article I section 2 instructs state governors to hold special elections to fill congressional vacancies, while Article I section 4 authorizes Congress to designate the “time, place, and manner” of such special elections if states should fail to act quickly following a national emergency. The legislation passed by the Judiciary committee simply exercises the existing congressional power by requiring states to hold special elections within 21 days after the House Speaker or acting Speaker declares that a majority of House members are incapacitated.

To quote Charles Rice, a distinguished Professor Emeritus at Notre Dame Law School, “When it is not necessary to amend the Constitution, it is necessary not to amend the Constitution.” We must not allow the fear of terrorism to compel us to abandon our existing institutions – including an elected House. The Constitution is our best ally in times of relative crisis, and it is precisely during such times we should adhere to it rather than rush to amend it.