Tuesday, January 11, 2005

Changing the definition of quorum in the Constitution...Dubious, but who has standing?

Section 2 paragraph h
changes the quorum provision of the Constitution (a majority of each House constitutes a quorum) to something ahh different. I don't think that this could be challenged until the provision would be put in use, although it seems uncontstitutional on its face.

Some have said this is needed because the Founders could not have contemplated a terrorist attack that kills a majority of Congress. I have to call BULLSHIT. The Founders surely knew about Guy Fawkes' Gunpowder Plot of 1605. Yet they chose a specific definition of quorum. Maybe the argument should be since Fed power has crept into every crevice of life that the Founders could not have contemplated the need for Congress to keep functioning in the midst of attack....Thinking as I write, this might have an interesting seperation of powers argument along the lines of if there is a catastrophic attack then it is the Executive's power to mount the defense. By changing the quorum provision Congress is taking away the Executive's power in the midst of crisis. I still doubt the Executive has standing until the provision is invoked though.

Of course if Congress wants to change the Constitution, please go through the admendment process, I would bet something like this could be adopted, after a lengthy debate.

Here's the text of the change.

If the House should be without a quorum due to catastrophic circumstances, then--

`(A) until there appear in the House a sufficient number of Representatives to constitute a quorum among the whole number of the House, a quorum in the House shall be determined based upon the provisional number of the House; and

`(B) the provisional number of the House, as of the close of the call of the House described in subparagraph (3)(C), shall be the number of Representatives responding to that call of the House.

`(2) If a Representative counted in determining the provisional number of the House thereafter ceases to be a Representative, or if a Representative not counted in determining the provisional number of the House thereafter appears in the House, the provisional number of the House shall be adjusted accordingly.

`(3) For the purposes of subparagraph (1), the House shall be considered to be without a quorum due to catastrophic circumstances if, after a motion under clause 5(a) of rule XX has been disposed of and without intervening adjournment, each of the following occurs in the stated sequence:

`(A) A call of the House (or a series of calls of the House) is closed after aggregating a period in excess of 72 hours (excluding time the House is in recess) without producing a quorum.

`(B) The Speaker--

`(i) with the Majority Leader and the Minority Leader, receives from the Sergeant-at-Arms (or his designee) a catastrophic quorum failure report, as described in subparagraph (4);

`(ii) consults with the Majority Leader and the Minority Leader on the content of that report; and

`(iii) announces the content of that report to the House.

`(C) A further call of the House (or a series of calls of the House) is closed after aggregating a period in excess of 24 hours (excluding time the House is in recess) without producing a quorum.

`(4)(A) For purposes of subparagraph (3), a catastrophic quorum failure report is a report advising that the inability of the House to establish a quorum is attributable to catastrophic circumstances involving natural disaster, attack, contagion, or similar calamity rendering Representatives incapable of attending the proceedings of the House.

`(B) Such report shall specify the following:

`(i) The number of vacancies in the House and the names of former Representatives whose seats are vacant.

`(ii) The names of Representatives considered incapacitated.

`(iii) The names of Representatives not incapacitated but otherwise incapable of attending the proceedings of the House.

`(iv) The names of Representatives unaccounted for.-

`(C) Such report shall be prepared on the basis of the most authoritative information available after consultation with the Attending Physician to the Congress and the Clerk (or their respective designees) and pertinent public health and law enforcement officials.

`(D) Such report shall be updated every legislative day for the duration of any proceedings under or in reliance on this paragraph. The Speaker shall make such updates available to the House.

`(5) An announcement by the Speaker under subparagraph (3)(B)(iii) shall not be subject to appeal.

`(6) Subparagraph (1) does not apply to a proposal to create a vacancy in the representation from any State in respect of a Representative not incapacitated but otherwise incapable of attending the proceedings of the House.

`(7) For purposes of this paragraph:

`(A) The term `provisional number of the House' means the number of Representatives upon which a quorum will be computed in the House until Representatives sufficient in number to constitute a quorum among the whole number of the House appear in the House.

`(B) The term `whole number of the House' means the number of Representatives chosen, sworn, and living whose membership in the House has not been terminated by resignation or by the action of the House.'.

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