Congress and the courts depend on meeting in-person, so how can they adjust to the coronavirus outbreak and the public health measures necessary to stop its spread – like social distancing – while continuing to meet their constitutional functions? Host Jeffrey Rosen explores that question with Norm Ornstein of the American Enterprise Institute, who’s worked since the aftermath of 9/11 on emergency-preparedness recommendations for all three branches of government, and lawyer and podcast host Ken White, who sheds light on how the pandemic is affecting his clients and the courts more broadly. They share insight into what’s keeping Congress from meeting virtually, how courts will deal with suspended arguments, what might happen to incarcerated people in the midst of the pandemic, continuing concerns about presidential succession, and more—in a wide-ranging conversation on how the U.S. government functions during a national emergency, and what reforms may be necessary to ensure it can continue to function in future crises.
A term that will be helpful to know for this episode — Quorum: a majority, in the House of Representatives and in the Senate. The Constitution requires a majority of senators, 51, for a quorum, and, when there are no vacancies in its membership, a quorum in the House is 218. Article I, Section 5 of the Constitution stipulates that “a majority of each [House] shall constitute a quorum to do business.”
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PARTICIPANTS
Norman J. Ornstein is a resident scholar at the American Enterprise Institute (AEI), where he studies politics, elections, and the US Congress. He is a cohost of AEI’s Election Watch series, a contributing editor and columnist for National Journal and The Atlantic, a BBC News election analyst, and the chairman of the Campaign Legal Center. Dr. Ornstein was a commissioner on AEI's and Brookings’ Continuity of Government Commission. Formed in the wake of 9/11, that commission produced important recommendations for how all three branches could reconstitute themselves and continue functioning in the wake of an emergency.
Kenneth P. White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles, California, and former federal prosecutor. He's a host of All the President's Lawyers—a podcast about the legal news surrounding the Trump administration. He also writes Popehat.com—a blog devoted to law, politics, and culture—and has written for the Los Angeles Times and other popular publications.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- U.S. v. Ballin (1892)
- Continuity of Government Commission
- "Coronavirus and the courts" episode of the All the President's Lawyers podcast
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. All of our daily lives have changed in the age of Coronavirus, and of course these changes have affected government as well. On today's episode, we consider how can the government function in the middle of the pandemic? Can the three branches abide by social distancing and need virtually? What does the constitution require and what limits, if any, does the constitution impose on virtual meetings by the Congress, the judiciary, and the president?
I'm joined by two leading experts on the constitution and the function of government. Norm Ornstein is a resident scholar at the American Enterprise Institute where he studies politics, elections, and Congress. He's a cohost of AEI's Election Watch series, a contributing editor and colonist for National Journal and The Atlantic, a BBC News election analyst, and chairman of the Campaign Legal Center. Norm Ornstein was a commissioner on the Continuity of Government Commission formed in the wake of 9/11. That commission produced recommendations for how all three branches could reconstitute themselves and continue functioning in the wake of a national emergency. Norm, it's great to have you on the show.
Norm Ornstein: [00:01:35] It's just great to be with you, Jeff.
Rosen: [00:01:37] And Ken White, is a first amendment litigator and criminal defense attorney at Brown White & Osborn in Los Angeles, and he's a former federal prosecutor. He's the host of All the President's Lawyers, a podcast about legal news surrounding the Trump administration. He also writes popehat.com, a blog devoted to law, politics, and culture. Ken, thank you so much for joining.
Ken White: [00:01:58] Thank you very much for having me here, Jeff.
Rosen: [00:02:00] Let's begin with the question of Congress. The constitution says a majority of each house shall constitute a quorum to do business, but it doesn't specify whether the majority threshold can be met by video conference. the constitution also says that each house may determine the rules of its proceedings. Norm, you have written a definitive report about the contingency plan that Congress might have to develop if the virus continues. you made recommendations about what Congress should do. So let's just begin with this question of Congress and virtual meetings. do current rules allow for virtual meetings if there's no quorum and what should Congress do to meet this emergency?
Ornstein: [00:02:54] Well, the answer to the first question, Jeff, is no. Congress does not have any rules for this. This is an issue that actually came up when we began to look at continuity of government in the aftermath of 9/11, and a Congressman Jim Langevin of Rhode Island saying we could be in a situation where members of Congress are scattered to their districts or elsewhere, and we are not going to be able to get back and convene, and we should have the capacity to meet, fa-, i-in a fashion that's not face to face. Nothing was done at the time. And, we actually got a jolt as well with the, anthrax scare, which was the closest thing we've had, in the last 20 years to the possibility of members of Congress, for example, being unable to convene in a particular place or having widespread numbers incapacitated.
But with the arrival of the pandemic, the issue of whether Congress can in fact function with that constitutional requirement of a quorum if they're not face to face, has come forward in a very big way. I began writing about this specifically a few weeks ago and talking to many members of Congress. The Senate has had a bill introduced by, a bipartisan bill, Democrat Dick Durbin of Illinois and Republican Rob Portman of Ohio, which would say that in the event of an emergency, leaders could say that, a remote meeting would work and that a quorum expressed with votes of present done remotely would, qualify and that they could vote remotely, but only for 30 days and it would be renewable so that you don't get into the regular practice of doing this, which has been a major, stumbling block for leaders and moving forward in the past.
And in the house, there's been real disagreement about this. I should note that, Senate majority leader, Mitch McConnell, really doesn't want to do this, and it was not included in the, emergency relief package as best I understand it. And Speaker Pelosi has also been reluctant. The chairman of the House Rules Committee, Jim McGovern, has now issued a report saying it's probably a little late and it would be, it would require some technical hurdles. And what they've proposed instead is proxy voting on the floor of the house where a few members could gather in a kind of skeleton crew and cast the votes of others that would be transmitted to them, presumably electronically. That is not the best option. it's not clear they'll even be able to do that. And we're left in a position where if members of the house were now all over the country, couldn't get back to Washington, wouldn't want to meet, with the social distancing requirements, we might not have a Congress at a time of grave emergency, which would be a tragedy.
Rosen: [00:05:51] Ken, what's the legal status of changes in house rules? In 1890, the house changed its rules so members who were but don't vote would count toward a quorum. The Supreme Court upheld the rule two years later in the case of US v. Ballin. Justice Brewer wrote for a unanimous court. The constitution has prescribed no method for determining whether a quorum is present, and it's therefore within the competency of the house to prescribe any method which shall be reasonably certain to ascertain the facts. Um, can you imagine a legal challenge to a change in the quorum rules? And, and would the court agree to hear it or not?
White: [00:06:24] I can certainly imagine a challenge, but I think it's doubtful that it would be a successful challenge. This is actually an issue that came up recently in the context of the impeachment hearings. Everyone was talking about, "Well, you know, can we challenge the way they're doing this? Can someone sue and say that, they're not conducting it the right way? Can the president sue and say they're not giving him the rights he deserves?" And the answer is, it's probably a political question, a non justiciable issue that the courts are not going to touch. Here, there's nothing in the constitution specifically requiring physical presence. Of course, given when it was drafted, it's hardly a surprise. But it seems to be likely that when the constitution has explicit terms giving to Congress the power to make its own rules and is silent on the issue of exactly how quorum is determined, that it's highly likely that a court is going to say, "This is a question that has been given to Congress. it is a political question and we as a court are not going to get involved and not going to second guess how Congress is going to do it."
So in a way as a, as a litigator, as a practitioner, it's interesting to me because it basically means that whatever, whether or not it's constitutional, there may be no remedy if you think it's not. A court may not be willing to engage in that analysis.
Rosen: [00:07:55] Thanks very much for those thoughts. And We the People listeners, remember that the political question doctrine can just refer to, it says that when courts think that a matter is texturally committed by the constitution to determination by the other branches, or that it might create a conflict between the two branches, or that there aren't clear standards for judicial resolutions, the judges will stay out of it. so that's why he suggests astutely that this might be one of those political questions that the court wouldn't hear.
Norm, the Continuity of Government Commission that you created issued three reports on the continuity of Congress, the presidency, and the Supreme Court. the co-, the subcommittee on the constitution in the Senate reported out a constitutional amendment in response to your recommendations to create temporary emergency appointments to the house and Senate in the event of a catastrophe that dropped either a house below a quorum of half its members. that amendment didn't go anywhere, or your other recommendations. Tell us more about that recommendation, why you think it's important to pass a constitutional amendment to deal with emergency appointments, appointments, um, as well as other, emergency recommendations relating to Congress in your report.
Ornstein: [00:09:09] So, I will say, Jeff, that we came to the conclusion, that we needed a constitutional amendment, reluctantly of course, because you don't want to do constitutional amendments if you can avoid it. But a little bit of the backstory here is that I was, at Dulles Airport on the morning of 9/11, and when I got there to check in, um, the first plane had hit the World Trade Center. The consensus at that point was that it must have been a small plane that had gone astray. I went to the gate, was on the jetway when they called us back when the second plane hit, understanding that it was a terrorist attack. And when I went home and watched on television, as so many did, and saw United 93 crashed in the, fields in Pennsylvania, my immediate response, conclusion to myself was, "Oh my God, that plane was headed for the Capitol dome," the symbol of American democracy, and would have gotten there probably around the same time as the plane hit the Pentagon if it hadn't left Newark 45 minutes late so that the passengers on board knew that it was a suicide mission.
Now it was a beautiful day and they were doing morning business at the Capitol. Hundreds of members were either gathered outside, or in rooms inside, or on the floor. It's a cast iron dome, a fully loaded jetliner hitting it would have sent molten cast iron all over the place, and we could well have had hundreds of members dead, missing, or in, incapacitated for a long period of time. And I might note of course that the Supreme Court 100 yards away from the Capitol just happened to have a meeting of the judicial conference going on at the same time that morning.
So, I began to think through what happens if you don't have a quorum and a Congress, special elections to the house, which are the only way to replace members take on average four months. That's if you do one of them in great circumstances. Imagine in the fog of war, trying to do hundreds of these, but also imagine four months or more without a Congress.
Then we had the anthrax scare and realize that while most states allow governors to pick temporary appointments for the Senate in the event of a death or a vacancy, that doesn't apply to incapacitation. And with anthrax it was possible you could have 50 or 60 senators incapacitated in intensive care units. And we've had experiences before, the most recent being Karl Mundt, a Senator from South Dakota who was comatose for months, and basically they couldn't get rid of him. They couldn't fill the seat. They would have had to expel him, takes two thirds the members to expel. And if 60 of them are incapacitated, they couldn't even do that for each other. And of course then they'd be out of the offices.
So, we came to the conclusion that the only way you could get a Congress up and running immediately or very quickly in the event of a catastrophe, and not have government by fiat, effectively martial law done by, a president, was to create a capacity only in the event of an emergency where you could have these interim appointments, interim for vacancies where they would serve until an election could have somebody elected and sworn, and incapacitated members until they were ready to come back and could sign, um, a piece of paper saying, "I'm ready and willing to reoccupy my seat."
Um, I will say that when it got to the constitution subcommittee in the Senate, John Cornyn, the Republican from Texas, was a strong proponent of ours. His chief counsel, who's now, a-appeals court judge, Jim Ho, worked very closely with us. It took some doing to convince Russ Feingold. Russ's position, a liberal Democrat from, Wisconsin was, I don't want any constitutional amendments because once you do one, it's too much, easier to do others. But he understood the gravity of this, but it went nowhere in the Senate and we got nowhere with the leaders in the house, the speaker, Dennis Hastert, or the other Republican leaders.
And so 19 years later, even though we've been trying every year to get a focus on this, we haven't ha-, seen anything happen. I'm hoping now with this pandemic, there'll be a realization that we need a, a backup plan.
Rosen: [00:13:32] The prospect, of course, of an amendment being proposed and adopted in the middle of the Corona crisis are, are nil 'cause it takes so long to adopt an amendment, which raises the possibility that our catastrophic effect of the virus on members of Congress might leave Congress without a functioning quorum and no rule change. And, and, and there might be calls on the courts to step in. can, let's turn now to the Supreme Court and its own operations.
the justices have canceled oral arguments for the foreseeable future. they're not required to hold oral arguments and could decide, existing cases without arguments as they sometimes, do when they feel that arguments are not materially useful. They could postpone arguments, or they could hold virtual arguments. Um, tell us a bit about the history of the Supreme Court and pandemics. There is a good piece by, Mark Walsh of the ABA, Journal about the court's response to the 1918 influenza epidemic. Justice Holmes wrote that we've been adjourned on account of the epidemic as it was not thought right to require lawyers to come across the continent to a crowded and infected spot. That was when the court postponed arguments at the start of its 1918 to '19 term.
In addition, the 1793 yellow fever epidemic in Philadelphia affected the justices of the Supreme Court who then road circuit. And after the 1793 outbreaks, the Supreme Court returned, for its next regular term the following year and made up for lost time. So, tell us about what the court, has done in the past in response to, epidemics and what it is doing now and what it might do in the future.
White: [00:15:25] Well, Jeff, as you said, before they've recognized that epidemics might require them to shut down, and they have shut down. Um, the u-unique aspect of the Supreme Court compared to other parts of the court system is that it tends to have cases that have already waited quite a long time and are accustomed to waiting a while longer. So it's not quite the emergency or catastrophe if a trial court matter, say a pending criminal trial, is being slowed down. so they are closed down for now as they have in the past, and I think you're right that they could very easily adjust to this, much more easily the trial court, even more easily than a court of appeals. There's really nothing about Supreme Court practice that can't be done remotely and by computer these days. Probably the biggest barrier to it is that Supreme Court justices tend to be older than other judges and citizens and maybe might be on average a little more reluctant to move in a technological direction.
But the value of oral Supreme Court arguments is already something that is something, somewhat controversial. Justice Clarence Thomas, who was known for rarely asking questions, has already frequently said that, he doesn't see the value in them. And I think there are probably other justices who feel the same way and just don't voice it quite so openly. Supreme Court cases are extremely thoroughly briefed. They've been briefed before at two lower levels. The issues are very well presented, and everyone has tons of time to prepare and read those papers. sometimes oral argument acts as a substitute for doing the reading ahead. That's certainly not the case in the Supreme Court.
So, even if the justice has decide that oral argument is still essential to making decisions, it's pretty clear that could be done by technological means, with some sort of moderators. And, um, frankly any of us who have ever been on a conference call or a video call or anything like that, seeing the problem with interruptions, would feel perfectly at home at a Supreme Court argument where it's very routine to be interrupted by the judges and have, having to adjust to it quickly.
if that's moderated, it might even be an easier experience than in person live oral argument. But the main work of the court, the analyzing the briefs, the doing the research, and the conferring among justices, is all stuff that could be very easily done. Um, by remote online, by Zoom calls like the one we're on right now, and, by other methods. And probably the only real barrier is the willingness of the justices themselves to buy into that procedure.
Rosen: [00:18:17] Norm, the third of the reports of your Continuity of Government Commission had to do with the Supreme Court and you noted the prospect and attack on the court. You noted that the court might be called on to resolve important constitutional questions arising out of an attack on other institutions like Congress, and you called for reforms to ensure the court could operate within weeks of an attack, including the revision of the existing powers of the court already defined in statute. You suggested the remaining justices of the court, if short of a quorum to operate, shall direct cases to an emergency interim court on which the remaining justices would sit along with other sitting federal judges selected either from the chief judges of the circuits, or by a process that aims to produce a court from a pool with a broadly representative sample of experienced federal judges. Tell us more about that really interesting recommendation, the problem that you anticipated, and more about solutions that you think are necessary.
Ornstein: [00:19:14] So, Jeff, one of the first pieces I wrote about this was the absolute nightmare scenario, which is a devastating attack, perhaps a suitcase nuclear bomb at a presidential inaugural, where you have the current president and vice president, the incoming president and vice president, I should say the outgoing and the incoming, all the members of Congress practically speaking, although some don't show up. the outgoing cabinet for the most part, the Supreme Court justices, and anybody else who might be in the line of succession and could all be gone. We'd be in a fog of war, and undoubtedly we'd have a bunch of erstwhile Alexander Haigs popping up and saying, "No worries. I'm in charge here."
but many questions would result from that. What if, for example, the only, members of Congress who weren't there, happened to be from the Texas delegation, which didn't show up, and they say, "We're going to constitute a quorum of the Congress and we'll choose a speaker and that will be the president." That's the kind of serious constitutional question where you'd want a Supreme Court and you certainly wouldn't want to have 14 separate or 13, outside of Washington courts of appeals, each issuing its, own, set of rulings or recommendations on this.
Now bring that to the present day. What we know is the only thing that enables continuity of the court is a statutory requirement, of a quorum of six of the nine justices. So we have a lot of older justices, we have a pandemic going on. Um, it's entirely possible that we could end up losing four judges, four justices, or have some justices in intensive care on respirators and unable to do anything. You would not have a quorum. And there's a need, I believe, in an emergency to have a court that can function as the high court under those circumstances, especially when we know the judges, justices are all in Washington. And as I mentioned, it was entirely possible on 9/11 that the Supreme Court itself where the, core of our leadership in the judiciary was sitting that day, um, could have been devastated as well.
So, what seemed logical to us, which can be done statutorily, was to create, and we have other, interim, courts of appeals. We have the FISA Court for example, that you could legislatively create this body. My preference would be to just have it be the, surviving judge, justices plus the chief judges of the 14 appeals courts, but there are other ways of doing it. We actually saw some interest from Dianne Feinstein at the time who was chair of the constitution subcommittee on the judiciary committee. But that again went nowhere and we're left with the real possibility, including right at this moment in a pandemic, where we might not be able to have the court, and where there might well be very serious questions of presidential authority, of an overreach of the president, of the use of emergency powers and the abuse of emergency powers, of a Congress saying they did something when it's not at all clear that they had the, authority to do so, um, that you would want to have, a, a court there and with the legitimacy that it is the final court to make a decision.
Rosen: [00:22:49] Ken, what do you think the Supreme Court should do to adjust to social distancing? And then tell us what the different federal courts are doing and what does the sixth amendment of the constitution say about the right to speedy trial? How long can you delay a criminal trial and how long can a court close?
White: [00:23:06] Well, Jeff, in a very odd way, it's somehow comforting that no matter how terrifying a situation we're in, Norm has carefully, contemplated something vastly worst and planned for it. [laughs] So, it's good to know someone has thought about that. with respect to the, Supreme Court, I think that it would show leadership and promote stability and calmness if they would move vigorously towards things like, putting oral arguments back on schedule but making them by video, and keeping on a schedule. I think that, things being abnormal has its own weight, its own inertia, and, spirals out of control. And the more that our institutions can return to some semblance of normality, even if it's normality by video, that's going to promote, more calmness and it's really going to help with the situation. So it's my hope that the Supreme Court will start doing that soon.
So with respect to the lower courts, it's very much a mixed bag. I come from the perspective of working in both criminal and civil cases and having clients and both going through every type of scenario you can imagine, from clients who are currently serving sentences in state facilities, to clients who are detained pretrial and wondering what to do. And the way the justice system has been dealing with us has been varied from state to state, even County to County.
Some counties have been very in front of this. they got out early, earlier than the States or certainly the nation. Um, they started doing things like closing down courthouses. They started thinking ahead about how these problems might affect deadlines in civil and criminal cases, and giving extensions to those deadlines. Um, in many counties right now, the, sheriff and the district attorney and the public defender are working on orders that will release people who are being detained pretrial, at least the people who are not seen as the most dangerous, and are otherwise trying to avoid the scenario, where you have people who have not been convicted of a crime who are being detained longterm, without a trial in very dangerous circumstances. Because of course in custody, there really is no social distancing. And, the hygiene and the medical care are, incredibly dangerous.
So, what we're seeing right now is a movement to address that by letting people out of pretrial detention and in many places, um, coming up with ways to, keep court going sometimes by video, for pretrial matters, and figuring out what else to do. But inevitably some things are being delayed. trials are certainly being delayed because you could do a hearing, by video, but you really can't do a trial. It's just too complex or too moving, many moving pieces, there are exhibits, there are witnesses, i-i-it simply doesn't work. so right now, what you have people confronting, Jeff, are the different types of a right to speedy trial and speedy procedure in criminal cases.
the statutory rights are the easier ones. There's a federal Speedy Trial Act, there are many state ones, and those contemplate that there may be disasters or emergencies that will require some delay. So you have, judges and sometimes the chief judge of districts saying that, "Okay. We're finding that under the Speedy Trial Act that this is time out. And so you're not going to get your trial within 70 days as you have a statutory right to."
The constitutional right to speedy trial is already more flexible. It doesn't have a hard and fast set of days by which you have to go to trial. It's more of a sliding scale and making the argument depends on whether or not you can show that your interests have been prejudiced. So for instance, when the government's delay causes a witness to die or evidence to be lost. And in general, courts have given the tie to the government on this one. Courts tend to be very deferential to things like, court congestion and certainly disasters and emergencies that might delay a trial.
So, unless we see this situation going on for more than a few months, I don't think you're yet going to be running into statutory or constitutional problems with a right to the speedy trial, because the, the existing law for better or worse allows these types of delays. I think the bigger problems you're going to have, are with people who are being arrested for the first time, getting determinations of probable cause, having bail hearings, things like that. Those are a problem. And that's of course all leaving aside the problems in the civil justice system.
Rosen: [00:28:11] So Ken, it sounds like the bottom line is that the right to speedy trial is flexible, it's necessarily relative as the courts have said, and it depends on the circumstances. Norm, your continuity of government reports didn't address the question of crisis in the lower courts, but Ken has identified a series of challenges ranging from delays to trials, to the possibility of having to release prisoners for public health reasons. Are there any issues relating to the administration of justice in a time of crisis that you think the courts or Congress need to address?
Ornstein: [00:28:43] Well, and of course this is one as well that the chief justice who is the head of the judicial conference, who really speaks for, judges everywhere, federal judges but also I think the voice, of the judiciary more broadly ought to tackle. As Ken said, it would be a public service. I can note as a, just an aside, I had gotten to know John Roberts, in 1999 and 2000 when my colleague from Brookings, Tom Mann and I headed up, a project on the independent counsel statute as it was about to expire. And we pulled together a quite remarkable group of people, including, former attorneys general, like Dick Thornburgh, former solicitors general like Drew Days, and we brought in John Roberts then in private legal practice, and he was just terrific.
And, when he was a chief justice, I approached him about the continuity of the court mentioning all of these very difficult issues. And I must say the response I got was very disappointing. It was a pretty cut, "No, I'm not dealing with this." Now I hope that's changed and maybe it has as he's gotten more seasoned, he was fairly new, in that role at that time. But it's also something that I would hope the, organization of state and local judges would take up.
I'm, right now very much involved with a judge in Miami-Dade County, Florida named Steve Leifman, who's a County judge who over 20 years has dramatically transformed the way the criminal justice system there deals with people with serious mental illness, creating a, diversion program and doing a number of other things. And I talked to him this morning. We have a documentary on, his program that'll be on public television on April 14th at 10:00 PM Eastern called The Definition of Insanity. I talked to Steve this morning and their court has shut down and they're working very, very hard to take care of all the people in the program that they have now. People with serious mental illness, but they've got others coming through and the courts are unable to function.
And making sure that the capacity exists to be able to process people through, not to have those thrown in jail for a period of time, especially where they're not going to get treatment, or medication, is, one that they hadn't had to confront in quite the same way before. They're having hurricanes down there, but all around the country, this is raising questions that I think local, jurisdictions have to take up, but it's also one that requires a national conversation.
Rosen: [00:31:16] Ken, what are your final thoughts on immediate challenges for dealing with the public health crisis in the prison population? You mentioned Iran, where officials have released over 70,000 prisoners. They're attempting to prevent a Coronavirus outbreak. Some people have suggested that here in the US prosecutors should offer more plea deals and New York is considering selective release of nonviolent offenders. So what are the immediate issues that the prison population will face over the coming months and what are some of the solutions you might propose?
White: [00:31:48] Well, the real problem is, is that, as unprepared our healthcare system as a whole is for this, the prison system is orders of magnitude worse. prison care, despite the best intentions of a lot of the people who do the day to day work is simply completely inadequate even to address non-emergency, non-crisis, non-pandemic circumstances. So, particularly for people who have health problems who are at high risk, being in custody at this point can be a death sentence. And what we really need to see is a serious re-evaluation of who needs to be in custody right now. And you have that going on.
to their credit, authorities I've seen in places like Los Angeles County and others, who normally would be at each other's throats to some extent, are working together to come up with guidelines to release people, for instance, who have served most of their sentences, who are pretrial but are not, violent offenders and don't have a violent record, and otherwise trying to cut down on the number of people in custody, which dramatically reduces their risk, the risk of the other people there, and the risk of the guards and administrators and people, who take care of them.
The problem is with this type of decision, you're always fighting America's very strong, very, somewhat unreflective law and order sensibility. and so as counties here in California have started talking about this and saying, "We're going to release these people," you get a lot of pushback as if it's going to cause rioting and looting in the streets if you let some of these low level nonviolent people out. That's just part of the American sensibility, unfortunately, about law and order. So I think we have to be prepared to rethink that and realize that this isn't just a crisis for the health and safety of the people in custody, but a crisis for the health and safety of the prison guards, the prison employees, the medical staff there, and everyone they might eventually come out to.
Rosen: [00:34:02] Norm, our last topic is the continuity of presidential succession. And this is the topic, where you of all Americans have been most pressing. You've been beating the drum about this waiting crisis for a long time. And in the continuity of government reports, you imagined what would happen if there was a catastrophic attack on Washington and all individuals in-included in the presidential succession who are based in Washington DC might potentially be killed or incapacitated. Tell us what you recommended to reorder the presidential line of succession and then maybe tell us concretely how the Corona crisis might threaten presidential succession or the workings of the executive branch in the coming months.
Ornstein: [00:34:49] So, just a little bit of the backstory here, Jeff. Um, the constitution says that, we have a president, we have a vice president, and then others in the line of succession that Congress can designate. and of course, we've changed the vice presidential succession process, through a constitutional amendment where you could get an interim replacement if, there were a vacancy in that post for which we can thank f-, former Senator Birch Bayh in particular. But other than that, we've had, three, one in the 19th century, and then most recently in 1947 when Harry Truman, who had gone, in the aftermath of the Second World War with his secretary of state, Stettinius, over to Europe, and it was a pretty perilous course. And, and at that time, the next in line in succession, remember there was no, vice president, Franklin Roosevelt had died, was that secretary of state.
And, Truman thought that, this was not appropriate and needed revision. And he worked with Congress, in 1947, and first they put in, put back in something that had been taken out in the 19th century, the, um, members of, top members of Congress. Originally, it had been the president pro tem of the Senate after the vice president followed by the speaker of the house. Truman thought that the people's voices ought to be heard. So next in line in succession after the vice president was the speaker followed by the president pro tem of the Senate, followed by the cabinet in, order of creation of the, office.
Um, there are some real questions about whether, congressional leaders can or should be in the line of succession to the presidency, is supposed to be officers of, the United States and congressional leaders are not. Um, they've, tried to resolve that by saying that if the speaker ended up in that line and took the post, he or she would have to resign from the office. but it creates a real conflict. And one of the things that ended up being, um, a real loophole in the 1947 Succession Act is that, if the speaker doesn't elect to resign, if there is no president or vice president, and somebody else down the line of succession, whether it's the president pro tem of the Senate or the, secretary of state, or the attorney general, um, is in that position, at any time the speaker can actually say, "You know what? I've changed my mind. I'm going to take the position and bounce you from it."
Now they, included that because of the, feeling that in the aftermath of the war and at different times, that maybe the speaker is, incommunicado, away from Washington, unable to get back to be sworn in for a few days, and you don't want to have a permanent change just because of those circumstances, but it creates the possibility of a speaker basically being able to say to an acting president, "You're going to do what I want or else I'm going to throw you out of there and take the post myself."
The president pro tem of the Senate by tradition is the longest serving member of the majority. Right now that is Charles Grassley, 85-year-old Charles Grassley who has lost more than a step or two. And of course you always have the possibility which would happen now if we ended up going down that line of succession with somebody from the party other than the one, that the people have chosen to be president moving into that post. But the larger problem right now, and the one that we saw in the aftermath of 9/11 is that everybody in the line of succession is based in Washington.
And so what we proposed was that we do a pretty significant revamp of the presidential Succession Act legislatively. Take the legislative leaders out, don't have the cabinet all in order of succession where you could go down to, people, a secretary of agriculture, a secretary of veterans affairs, who have been chosen for the post, not because they're ready to be president, but maybe because they fit a category, a region, an ethnicity, or a narrow area of expertise. And after the first four or five: state, treasury, justice, defense, maybe Homeland Security, have a president nominate a number of people, chosen from around the country to serve as officers of the United States.
They'd have to be confirmed by the Senate or possibly confirmed by both houses. And then their role as officers would be to stay briefed and be ready just in case something happened. It would bring this up to date and would also leave us in a position, a stronger position now, if, where if, this pandemic, managed with, as we know, people in the vice president's office, now having the Coronavirus, people in the white house, a president who has met with large numbers of others who did a birthday party at Mar-a-Lago, and possibly meetings, with cabinet members, we could end up, really with a, a devastation and an outcome that would not be a preferred one. It's something we really have to grapple with and deal with.
Rosen: [00:40:24] Ken, the last word is to you. What issue that we've not yet talked about are you most concerned about? There are juries that need to convene face to face that aren't able to do so now, the department of justice prosecutors, may not be able to meet, um, and there are other executive branch activities. please leave our listeners with the, function of government that you think will be most effected by the Coronavirus and, and what you think can be done about it.
White: [00:40:51] I suppose the thing that I'm the most concerned about is the entire concept of government itself. the concept of the rule of law. So, us all deciding to be governed by the law, the very concept of America, the concept of the constitution, the concept that, the law is the king, not a king, um, are more recent, really in historical terms than some people realize and more fragile than I think they appreciate sometimes. And when you have something truly catastrophic and scary like this, that's always a fragile thing.
We've seen at points in our nation's history where the edges, um, have been eroded away and the envelope has been pushed, and things that really don't meet piece time scrutiny have happened. So, I think that what I'm most concerned about is that we continue to have these conversations to engage with not only, um, what should we do, but do we have a right to do that? Does it accord with the rules of the constitution? How can we do it in a way that, is lawful and that respects people's rights? And as long as I think we're still willing to have those conversations and engage in an analysis of not just what is effective, but what is permissible. And I think that we will get through this, as we have through so many other national crises. I think the thing that I'm most frightened about, is throwing that all away, the sentiment emerging if this goes badly enough that the rule of law is something for other times and now, you know, that's all off the table and we do what we want.
Rosen: [00:42:35] Thank you so much, Ken, for reminding us of the crucial importance of citizens continuing to convene to discuss what the constitution requires and what the government may do in times of crisis. Norm, Ken, thank you so much for joining.
Ornstein: [00:42:50] A real pleasure.
White: [00:42:51] Very much, thank you.
Rosen: [00:42:55] Today's show was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Michael Marcus and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple podcasts, and recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly dose of constitutional debate. Also, please be sure to check out the live courses on the constitution that my colleague Kerry Sautner and I are offering every Wednesday, Thursday, and Friday at 1:00 PM. You can find them on the Constitution Center's live stream page. They're designed for high school students, college students, and for learners of all ages.
And always remember that the National Constitution Center is a private nonprofit. Now more than ever, we rely on the generosity of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate. You can support our mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount to support our work, including this podcast, at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
