The Trouble with Shadow Government

Abstract

The terrorist attacks of September 11 and the subsequent War Against Terrorism have raised in many minds the possibility of a massive, perhaps nuclear, terrorist attack laying waste to all of Washington, D.C., killing the President and Vice President and destroying Congress and the federal government. President Bush's "shadow government," composed of members from each federal executive agency working from an undisclosed secure location, ready to step-in in the wake of an attack, reflects this newfound concern with continuity in the federal government.

This Article considers the constitutional and structural problems raised by the terrorist attack scenario and the plans for government continuity. First, President Bush's plan (details of which have not been shared with the public) does not obviously provide for the safety of a proper statutory successor to the President, one person who will assume and exercise the "executive power" under the Constitution. Second, the plan does not appear to provide for continuity of Congress, but instead assumes that the executive branch alone provides sufficient continuity in the federal government without a functioning legislative branch. Third, there has been no discussion of the more important aspect of government continuity, the repopulation of the federal government and the replacement of those high officials in both political branches killed in any attack so as to bring the government up to full working speed. Most importantly, repopulation demands action not by the federal government, but by the several States, which are responsible for choosing, or controlling the process of choosing, new members of Congress and new Electors to choose a new President.

This Article then suggests how succession, continuity, and, most importantly, repopulation of the federal government should function, through several proposed constitutional amendments and statutory changes that will enable the governmental structure to handle the new contingency and survive in a structurally and constitutionally sound and consistent form.