January 9th, 2013

“Continuity of Government” – A Threat to the Constitution


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Ron Paul

Ron Paul

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Editor’s note: This was originally found in 2008. The link is no longer functional.

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“Continuity of Government” – A Threat to the Constitution

by U.S. Rep. Ron Paul

The COGC Proposal

The “Continuity of Government Commission” (COGC), spearheaded by the Brookings Institution and the American Enterprise Institute, recently issued proposals for the operation of Congress following a catastrophic terrorist attack. Specifically, COGC advocates a constitutional amendment calling for the appointment of individuals to the House of Representatives to fill the seats of dead or incapacitated members, a first in American history. An examination of the proposal reveals that it is both unnecessary and dangerous.

Note that COGC is “self-commissioned,” its members being neither elected nor appointed by any government body. The biographies of the commissioners demonstrate that COGC is made up mostly of professional lobbyists. Of course COGC is well-intentioned, but the nation should know exactly who is trying to substitute their wisdom for that of James Madison, Alexander Hamilton, and other framers of the Constitution. I think most Americans would prefer that proposals to amend the Constitution come from elected lawmakers or grassroots efforts, not from think tanks and lobbyists.

One reading the COGC proposal cannot help but sense the familiar Washington conceit at work, a conceit that sees America as totally dependent on the workings of Capitol Hill. It is simply unthinkable to many in Washington that the American people might survive a period in which Congress did not pass any new laws. But the truth is that the federal state is not America. The American people have always been remarkably resilient in the face of emergencies, and individual states are far more equipped to deal with emergencies and fill congressional vacancies than COGC imagines.

COGC is Unnecessary

Every generation seems to labor under the delusion that it lives in the most dangerous and turbulent time in human history. COGC certainly proves this point. Its proposal provides doomsday scenarios designed to make us believe that the threat of modern terrorism poses a much greater risk to our government institutions than ever existed in the past. Yet is Congress really more vulnerable than it was at the height of the Cold War, when a single Soviet missile could have destroyed Washington? Surely Congress faced greater danger in 1814, when the British army actually invaded Washington, routed the city, and burned down the White House! Somehow the republic survived those much more perilous times without a constitutional amendment calling for the emergency appointment of Representatives.

The scenarios offered by the commission, while theoretically possible, are highly unlikely to disable Congress. Remember, a majority of members assemble together in one place only rarely; even during votes most members are not on the floor together at the same time Inauguration ceremonies and State of the Union addresses often bring together a majority of members in the same place, but simple precautions could be taken to keep a sufficient number away from such events. Even a direct terrorist attack on the Pentagon failed to disrupt the operation of the Department of Defense. The COGC proposal exaggerates the likelihood that a terrorist strike on Washington would incapacitate the House of Representatives, and exaggeration is a bad reason to amend the Constitution.

Existing Constitutional Provisions are Adequate

It is important to understand that the Constitution already provides the framework for Congress to function after a catastrophic event. Article I section 2 grants the governors of the various states authority to hold special elections to fill vacancies in the House of Representatives. Article I section 4 gives Congress the authority to designate the time, manner, and place of such special elections if states should fail to act expeditiously following a national emergency. As Hamilton explains in Federalist 59, the “time, place, and manner” clause was specifically designed to address the kind of extraordinary circumstances imagined by COGC. Hamilton characterized authority over federal elections as shared between the states and Congress, with neither being able to control the process entirely.

COGC posits that states could not hold special elections quickly enough after a terrorist act to guarantee the functioning of Congress. But even COGC reports that the average length of House vacancies, following the death of a member until the swearing in of a successor after a special election, is only 126 days. Certainly this period could be shortened given the urgency created by a terrorist attack. We should not amend the Constitution simply to avoid having a reduced congressional body for a month or two.

In fact, Congress often goes months without passing significant legislation, and takes long breaks in August and December. If anything, legislation passed in the aftermath of a terrorist event is likely to be based on emotion, not reason. The terrible Patriot Act, passed only one month after September 11th by a credulous Congress, is evidence of this.

Also, advances in technology can be used to reduce the risk of a disruption in congressional continuity following an emergency. Members already carry Blackberry devices to maintain communications even if cut off from their offices. Similar technology can be used to allow remote electronic voting by members. Congress should focus on contingency plans that utilize technology, not a constitutional amendment.

States have a wide variety of electronic and telephonic technology at their disposal to speed up the process of special elections. Consider that popular television shows hold votes that poll millions of Americans in a single night! Yet COGC ignores alternatives to standard voting and incorrectly assumes that states will be in disarray and unable to hold elections for months.

COGC is Dangerous because the House Must Be Elected

At its heart, the COGC proposal is fundamentally at odds with the right of the people always to elect their members of the House of Representatives. The House must be elected. Even “temporary” appointees would be unacceptable, because the laws passed would be permanent.

The problems with appointment of “representatives” are obvious. COGC calls for a general constitutional amendment that gives Congress wide power to make rules for filling vacancies “in the event that a substantial number of members are killed or incapacitated.” Such an amendment would be unavoidably vague, open to broad interpretation and abuse. In defining terms like “vacancy,” “substantial,” and “incapacitated,” Congress or the courts would be setting a dangerous precedent for a more elastic constitutional framework. Members of Congress simply cannot appoint their colleagues; the conflict of interest is glaring.

Alternate proposals allowing state governors to appoint representatives from a list of successors nominated by members are no better. The House of Representatives represents the people, not the states. Single states often exhibit wide variations in political makeup even among voters of the same party. Appointment by governors, even though the successors represent the dead member’s party choice, could change the ideological composition of Congress contrary to the will of the people. Furthermore, voters choose an individual candidate, not a panel. They should not be required to consider the qualifications of a candidate’s potential successors.

COGC focuses on government legitimacy, arguing that a House of Representatives with only a handful of surviving members would not be seen as legitimate by the public. In fact the opposite is true: appointed “representatives” will never be seen as legitimate and in fact would not be legitimate. Without exception, every member of the House of Representatives has been elected by voters in the member’s district. Madison states in Federalist 52 that “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.” The very legitimacy of the House of Representatives is based on its constitutional status as the most directly accountable federal body.

The House passes numerous laws, often by voice vote, with very few members present. The legitimacy of those laws is not called into question. Even a House made up of only five elected members would have more legitimacy, as the living continuation of the only elected entity in government, than a House composed of five surviving members and 430 appointees. Furthermore, even a decimated House membership would have to pass legislation with the concurrence of the Senate, which could be restored to full strength immediately by state governors.

Consider a scenario COGC forgot to mention. Imagine a terrorist strike kills a majority of members of the House of Representatives. 200 members survive, and 235 are appointed by state governors on a “temporary basis.” This new body considers a bill that drastically increases taxes to pay for emergency measures, while suspending civil liberties and imposing martial law. The bill passes, with 195 elected members opposed and all 235 appointed members in favor. Only 5 elected members support the measure. Would the electorate consider this legislation legitimate? Hardly. Yet this is the type of outcome we must expect under the COGC proposal.

Conclusion

To quote Professor 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 understandable fears and passions engendered by the events of September 11th to compel a rushed and grievous injury to our system of government. The Constitution is our best ally in times of relative crisis; it is precisely during such times we should hold to it most dearly. Rather than amending the Constitution, Congress should be meeting to discuss how to preserve our existing institutions- including an elected House- in the event of a terrorist attack. The Constitution already provides us with the framework, while technology gives states the ability organize elections quickly. The COGC proposal not only makes a mountain out of a molehill, but also acutely threatens the delicate balance of federal power established in the Constitution.




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9 Responses to ““Continuity of Government” – A Threat to the Constitution”

  1. 1
    Churchill Says:

    Yes indeed, the COG (Continuance og Government) was created out of an atmosphere of dis-trust and denial that people should have a right of voice in a Government of their choosing, nt as the reult of Terrorism. The COG is the Soul of the DHS. which is currently part of the Executive branch of Government. I have been at the understanding that the COG consists of a few selected few NGO’s. It is also the resaon why the juridiction of the U.S. Coast Guard was transferred over to the DHS from The Department of the Interior and why INTRPOL was given freedom to operate nation-wide without oversight from the FBI, Congress and etc., nor can the Jusice dept prosecute them for any wrong-doing. And including the IDF which were previously allowed to erect observation posts with-in all branches of the Military including the DHS’s Coast Guard as well as observation post with-in the National Guard. All indications point to the fact that the majority of the DoD and their Contractors as like Big Government are influenced from with-in and with-out by those who prefer Authoritarian Rule. The COG is the replacement of Local, State and Federal Government when/if the Martial Law executive Order is enacted/enforced, When it does happen, there is no turning back as history does show.

  2. 2
    Corey Rodgers Says:

    1.) it’s obvious that the current fed admin – wh, house, congress, and everyone else, with only a few exceptions like Ron Paul, Rand Paul, Darryl Issa, and i wish i knew of more but i don’t — are infact against the american people,

    and their method to harm us is to first attack our constitution, and 2ndly they will attack us.

    an attack on our constitution is entirely what this cogc thing is, entirely,
    there is nothing about cogc that is by the people and for the people,
    it is by a small group of humans that intends for the govt to oppress the people.

    2.) people have been saying for years now “throw the bums out” and “throw them ALL out”;
    it’s obvious to me that whether it be jihadists, tim mcveigh’s, iran/nkorea/etc., or aliens, that blew up all of washington and 100% of our bogus leaders, we wouldn’t care, and we would move on and get back to our government as originally intended – for the people, and by the people. it currently is neither.

    The american people don’t care about cogc, only the corrupt want cogc. the corrupt are a massive majority in govt but are a tiny minority among people, why would we allow any of this? i won’t.

    God is my parent and gives me my rights and restrictions and i am the parent of my child the government and i give them their rights and restrictions.
    anyone in government who doesn’t like working for me is free to resign. they are not free to oppress or attack me. any thug who attacks me will get the exact same response, your choice of clothing will not matter.

    government: you are my child, i am not your child. you are my employee, i am not your employee. God is my master, and i am your master. you are however free to resign and/or leave any time you wish.

  3. 3
    Cal Says:

    Actually ALL bureacratic agencies within the Federal government are required to take the oath. If they do not take the REQUIRED oath then they are not a legal entity. Not keeping the oath is a criminal act.

    Clause 2 of Article VI of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

    The Constitution of the United States of America IS the Supreme Law of this land, NOT the federal government.

    The first law statute of the United States of America, enacted in the first session of the First Congress on 1 June 1789, was Statute 1, Chapter 1: an act to regulate the time and manner of administering certain oaths, which established the oath required by civil and military officials to support the Constitution.

    The wording of the Presidential Oath was established in the Constitution in Article II, Section 1, Clause 8.

    Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    The Framers placed the Oath of Office Clause between the beginning clauses that set forth the organization of the executive department and ending clauses that specify the contours of the President’s executive power. The President takes the oath after he assumes the office but before he executes it. The location and phrasing of the Oath of Office Clause strongly suggest that it is not empowering, but that it is limiting – the clause limits how the President’s “executive power” is to be exercised.

    The requirement for ALL FEDERAL AND STATE CIVIL OFFICERS to give their solemn and binding Oath is established in Article VI, Section 1, Clause 4.

    They are BOUND by their Oath to support the Constitution, and should they abrogate their Oath by their acts or inaction, are subject to charges of impeachment and censure.

    Once given, the Oath is binding for life, unless renounced, refused, and abjured. It does not cease upon the occasions of leaving office or of discharge.

    Solemn: “Legally binding, Common legal phrase indicating that an agreement has been consciously made, and certain actions are now either required or prohibited”, “The other requirement for an agreement or contract to be considered legally binding is consideration – both parties must knowingly understand what they are agreeing to”
    .
    Bound – “Being under legal or moral obligation; to constitute the boundary or limit of; to set a limit to; confine”

    Legally Binding: Common legal phrase. Lawful action, such as an agreement consciously agreed to by two or more entities, establishing lawful accountability. An illegal action, such as forcing, tricking, or coercing a person into an agreement, is not legally binding. Both parties knowingly understand what they are agreeing to is the other requirement to legally establish an agreement or contract.

    Consideration: According to “Black’s Law Dictionary,” consideration in a contract is a bargained for exchange of acts or forbearance of an act.

    Require, Requirement, Required: “to claim or ask for by right and authority; Mandated under a law or by an authoritative entity. That which is required; a thing demanded or obligatory; something demanded or imposed as an obligation.”

    “Blacks Law Dictionary” states that a contract is
    1. An agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.

    The Framers placed “Oaths of Office” in the Constitution. These Oaths are to function as “checks” on the powers of the federal government and protect us from usurpations.

    Each Branch of the federal government has “the check of the Oath” on the other two branches. The States, whose officials also take the Oath of Office, have the same check on all three branches of the federal government. And “We the People”, the “original fountain of all legitimate authority” (Federalist No. 22), have the Right to overrule violations of the Constitution by elected and appointed officials.

    Article VI, clause 2, says the Constitution, and the Laws & Treaties authorized by the Constitution, are the “supreme Law of the Land”.

    Webster’s 1828 Dictionary says for “Constitution”: “…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.
    If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other Branches, or failing that, the States or THE PEOPLE, must overrule them”.

    Federal law regulating oath of office by government officials is divided into four parts along with an executive order that further defines the law for purposes of enforcement.

    5 U.S.C. 3331, provides the text of the actual oath of office members of Congress are required to take before assuming office.

    5 U.S.C. 3333 requires members of Congress sign an affidavit that they have taken the oath of office required by 5 U.S.C. 3331 and have not or will not violate that oath of office during their tenure of office as defined by the third part of the law,

    5 U.S.C. 7311 which explicitly makes it a federal criminal offense (and a violation of oath of office) for ANYONE EMPLOYED in the United States Government (including members of Congress) to “advocate the overthrow of our constitutional form of government”.
    18 U.S.C. 1918 provides penalties for violation of oath of office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine.

    The definition of “advocate” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311.
    One provision of Executive Order 10450 specifies it is a violation of 5 U.S.C. 7311 for any person taking the oath of office to advocate “the alteration … of the form of the government of the United States by unconstitutional means.”

    Our form of government is defined by the Constitution of the United States. Thus, according to Executive Order 10450 (and therefore 5 U.S. 7311) any act taken by government officials who have taken the oath of office prescribed by 5 U.S.C. 3331 which alters the form of government other by amendment, is a criminal violation of the 5 U.S.C. 7311.

    Summerizing, the three branches of our government, the military, all law enforcement, the heads of the States, all federal employees are required to take an Oath to support and defend the Constitution and NOT an individual leader, ruler, office, or entity. Once given, the Oath is binding for life, unless renounced, refused, and abjured. It does not cease upon the occasions of leaving office or of discharge.

  4. 4
    Tim Says:

    Well? I wonder. Does anyone out there understand that you can’t have a government involved with 2 different forms of government The UN. Which is a socialist form by all respets to what it is by nature and form historically. And the USA. Which is a constitional republic or is suppose to be, but now is a democracy rebuplic by way of changed/bill of rights laws that subvert us constitionality. We are being fooled into believing these 2 different forms can be intermingled legally. but they can’t be! WHY? Because 1 will be used to over take thee other and win out through subversions onto thee other.
    That’s why we are loosing our constitution and Law. To UN One world socialism. And it is UN ONE WORLD SOCIALISM, they’ve admitted themselves, those that head it up. It’s in your face. Just take time to research it. It’s all there in public records.

  5. 5
    Tim Says:

    You think I’m just a new world order conspiracy nut job huh? Read !

    http://www.google.com/url?sa=t&rct=j&q=one%20world%20socialism-united%20nations%20admits%20it%3F&source=web&cd=8&cad=rja&ved=0CF0QFjAH&url=http%3A%2F%2Fwww.stopthecrime.net%2Finfo%2F0034.html&ei=S2rwUIuAFOHM2AWwq4HYBQ&usg=AFQjCNF1FxeD2CyStsALDDuhoVSjx2Zorg&bvm=bv.1357700187,d.b2I

  6. 6
    Tim Says:

    http://www.google.com/url?sa=t&rct=j&q=one%20world%20socialism-united%20nations%20admits%20it%3F&source=web&cd=8&cad=rja&ved=0CF0QFjAH&url=http%3A%2F%2Fwww.stopthecrime.net%2Finfo%2F0034.html&ei=S2rwUIuAFOHM2AWwq4HYBQ&usg=AFQjCNF1FxeD2CyStsALDDuhoVSjx2Zorg&bvm=bv.1357700187,d.b2I

    This is all I’m posing. These 2 posts? Come on. This is ALL I have to say

  7. 7
    Tim Says:

    IMPEACH HIM He has broken his oath of Office. And this has Nothing to do with race,ethnic or creed,or religion. It is unconstituional or ILLEGAL. He is breaking the LAW of this land

    President Obama chairs at UN?

    .
    http://www.google.com/url?sa=t&rct=j&q=president%20obama%20serves%20the%20un%3F&source=web&cd=1&cad=rja&ved=0CDIQFjAA&url=http%3A%2F%2Frense.com%2Fgeneral87%2Fob1.htm&ei=XHrxUPO1A4qa2AW7o4H4DA&usg=AFQjCNHV7sG7lblcGIMgOsZMV3vgR4EJTQ&bvm=bv.1357700187,d.b2I

  8. 8
    Tim Says:

    I want to thank Stewart Rhodes,and Oath Keepers, for a place, Freedom and Liberty minded folks can speak their peace without the ever increasing censorship being found on the internet these days.
    May the creator guide and keep all safe who defend the Rights of men and woman, and to those who serve to keep true freedom, true security and peace alive.

    It’s Protect and serve

    Not Law enforcement absolute law not law absolute

  9. 9
    Rick Mellor Says:

    I agree with you. ‘Obama’, or whatever his real name is, should have been impeached a long time ago. However, I think the majority of the House and the Senate should be impeached as well, not to mention the Supreme Court and every other department of government.

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