Explanation:
There are a total of 535 Members of Congress. 100 serve in the U.S. Senate and 435 serve in the U.S. House of Representatives.
Whither Congress in the event of a terrorist attack? Much of the
conversation about "continuity in government" has focused on the
Presidency-on ensuring the survival of one individual in whom the
Executive power under the Constitution is vested. The focus has been, in
the words of President George W. Bush, to put "measures in place that
should somebody be successful in attacking Washington, D.C., there's an
ongoing government."1 But when the President talks about ongoing
government, he talks only of an ongoing President and executive branch.
Most of the security efforts on September 11, 2001, concerned the
protection of the President, Vice President, and Cabinet members in the
Presidential line of succession.2 In the months following the September
11 terrorist attacks, Vice President Richard B. Cheney spent a significant
amount of time in undisclosed secure locations to ensure his safety as the
preferred Presidential successor.'
In fact, evidence now suggests that Congress was the terrorist target
that morning. United Flight 93, which crashed in a field in western
Pennsylvania after passengers fought back against the hijackers, appears • 4
to have been headed for the Capitol. What ultimately saved the Capitol
' Assistant Professor of Law, Florida International University College of Law. J.D., 1997,
B.S., 1990, Northwestern University. Thanks to Thomas Baker and Matthew Mirow for
comments and suggestions.
1. See, e.g., Press Release, Presidential Q&A with Pool Reporters (Mar. 1, 2002),
http://www.whitehouse.gov/news/releases/2002/03/20020301-5.html.
2. See Howard M. Wasserman, The Trouble with Shadow Government, 52 EMORY
L.J. 281, 281 (2003).
3. See id. at 294.
4. See CONTINUITY OF GOV'T COMM'N, THE CONGRESS 2 (2003), available at
http://www.continuityofgovernment.org/pdfs/FirstReport.pdf; see also id. app. II, at 34
(quoting reports of interviews indicating that the fourth plane headed for Congress);
Ensuring the Continuity of the United States Government: The Congress: Hearing Before
the S. Comm. on the Judiciary, 108th Cong. (2003) [hereinafter Congressional Continuity
Hearing] (statement of Norman J. Ornstein), http://judiciary.senate.gov/
testimony.cfm?id=909&wit-id2565 ("Plotters of the September 1 1th attacks have told the
media that the fourth plane, United flight 93, was headed for the Capitol "); id.
(statement of Samuel Wright), http://judiciary.senate.gov/testimony.cfm?id
=909&wit id=2570 ("But for the heroic resistance of the passengers, the aircraft might
very well have crashed into the Capitol, killing hundreds of members of the Senateand House of Representatives."); id. (statement of Thad Hall), http://judiciary.senate.
gov/testimony.cfm?id=909&witid=2567 ("The September 11th terrorist attacks could
have been far worse had one of the airplanes hijacked by the terrorists struck the United
States Capitol. The attack would have come just as the House was going into session and
the House Appropriations Committee met in the Capitol building.").
5. See CONTINUITY OF GOv'T COMM'N, supra note 4, at 2.
6. See id. at 2-3.
7. See generally id. at iii. Several constitutional amendments addressing
congressional continuity were introduced in Congress in the months after September 11,
but none were enacted or even seriously considered. See, e.g., H.R.J. Res. 67, 107th Cong.
(2001); H.R.J. Res. 77, 107th Cong. (2001); S.J. Res. 30, 107th Cong. (2001).
8. See THE FEDERALIST No. 51, at 314 (James Madison) (Garry Wills ed., 1982)
(arguing that the Constitution "so contrive[ed] the interior structure of the government, as
that its several constituent parts may, by their mutual relations, be the means of keeping
each other in their proper places"); see also RICHARD HOFSTADTER, THE IDEA OF A
PARTY SYSTEM 52 (1969) (arguing that systemic protections in the Constitution were to
be provided by the "classic doctrine of separation of powers"); Steven G. Calabresi, The
Political Question of Presidential Succession, 48 STAN. L. REV. 155, 163 (1995) ("[W]e
must remember that our Constitution is built on presidentiallseparation of powers
premises ); Laura S. Fitzgerald, Cadenced Power: The Kinetic Constitution, 46 DUKE
L.J. 679, 688 (1997) ("[T]he separation of powers principle serves mostly as a line-drawing
tool to mark the boundary between one institution's constitutional tasks and those
reserved to another."); Howard M. Wasserman, Structural Principles and Presidential
Succession, 90 KY. L.J. 345, 359-60 (2001) ("Power was to be divided among three
coordinate branches of the federal government; each branch was to have its own realm of
power and was to be provided with the formal tools, means, and will necessary to protect
