Continuity of Government: Current Federal Arrangements and the Future

CRS Report for Congress
Continuity of Government:
Current Federal Arrangements and the Future
Harold C. Relyea
Specialist in American National Government
Government and Finance Division
Summary
Continuity of government refers to the continued functioning of constitutional
government under all circumstances. Arrangements for the continued operation of the
federal government in the event of a national emergency or catastrophe are specified in
law, policy, and plans, some of which are not public information, given their sensitive,
contingent status. This report reviews the public record concerning federal continuity
of government arrangements. It will be updated to reflect significant developments.
As a condition of office, the President swears or affirms a pledge to preserve, protect,
and defend the Constitution of the United States, which also requires members of the
Senate, the House of Representatives, and the individual state legislatures, as well as all
executive and judicial officers of the United States and the several states, “to support this
Constitution.”¹ Arguably, such provisions constitute a basis for these principal
government officials, in their separate capacities, to contribute to policy and planning for
the continued functioning of constitutional government under all circumstances. During
the latter half of the 20^th century, such preparations were conducted earnestly and
elaboratively, particularly with the onset of the Cold War and the increasing prospect of
nuclear attack upon the nation. Arrangements for the continued operation of the federal
government in the event of a national emergency are specified in law, policy, and plans,
some of which are not public information, given their sensitive, contingent status.
Background
While the Constitution prescribed some arrangements concerning succession to the
presidency and the replacement of elected and appointed officials, widespread concern
about the continued functioning of constitutional government under all circumstances
probably did not arise prior to the assassination of President Abraham Lincoln on April
14, 1865. The assassination of the President was not totally unthinkable — an attempt
had been made on the life of President Andrew Jackson in the Capitol rotunda on January

30, 1835 — but it was generally regarded as highly unlikely. However, in the aftermath

¹ See Article 2, Section 1, and Article 6.
Congressional Research Service ˜ The Library of Congress

of Lincoln’s demise came the assassination of President James A. Garfield in 1881, the
murder of President William McKinley in 1901, and the wounding of former President
Theodore Roosevelt in 1912. Presidential protection by the U.S. Secret Service began
informally and without statutory sanction in 1894.
In 1792, Congress had provided, in accordance with constitutional prescription, for
succession to the presidency, when both the office of the President and the Vice President
were vacant, by, first, the President pro tempore of the Senate or, next, the Speaker of the
House of Representatives. In this constitutionally suspect arrangement, these legislative
branch officials were to serve in an acting capacity, holding office only until a new
President could be chosen.² Congress returned to the matter in 1886, establishing a line
of succession relying upon the Cabinet, following the order of the establishment of the
departments. Any Cabinet official coming to the presidency via this arrangement would
have to possess the constitutional qualifications to hold the office, and would temporarily
act as President by virtue of his Cabinet position, which he would retain, thus becoming
a member of his own presidential Cabinet.³
During the Civil War, Secretary of State William Seward and Secretary of War
Edwin Stanton created counterespionage organizations, but these were directed against
spies and saboteurs rather than potential assassins of public officials. Similarly, during
World War I, the Departments of Justice, the Navy, the Post Office, and War, among
other entities, conducted intelligence operations and investigations to ferret out spies,
saboteurs, and the disloyal, but life-threatening attacks upon government leaders by such
enemies does not appear to have been a major concern. Submarine warfare and aerial
bombardment, while effective new techniques in warfare, utilized limited technologies
posing no major threat to the defense of the domestic territory of the United States or
constitutional government.
The December 7, 1941, attack on Pearl Harbor by Japanese naval aircraft (and the
American April 18, 1942, retaliatory bombing of Tokyo by aircraft under the command
of Colonel James H. Doolittle) demonstrated that at least carrier-assisted bombers could
reach the continental United States. Enemy long-range aircraft capabilities were
indeterminate during the early months of the war.
The week after Pearl Harbor, the Secret Service presented the president with a long
report of recommended changes to improve White House security. It proposed
covering the skylights with sand and tin, camouflaging the house, painting the
colonnade windows black, setting up machine-gun emplacements on the roof, and
building an air raid shelter in a subbasement area of the new East Wing. The
president rejected most of the suggestions, “with not a little annoyance,” though he
finally agreed to the construction of a temporary shelter in the Treasury Department,
which would be accessed by a tunnel that would run under the street from the White⁴

House to the Treasury.
² 1 Stat. 239.
³ 24 Stat. 1.
⁴ Doris Kearns Goodwin, No Ordinary Time, Franklin and Eleanor Roosevelt: The Home Front
in World War II (New York: Simon and Schuster, 1994), p. 298.

Shortly after the conclusion of World War II, the United States found itself drifting
into increasingly hostile relations with its former ally, the Soviet Union. As early as
November 3, 1946, Soviet Foreign Minister V. M. Molotov attacked U.S. foreign policy
in a United Nations General Assembly address. The American response included the
1947 inauguration of the Truman Doctrine for the containment of Soviet expansion and
the Marshall Plan for European economic recovery, the 1948 launching of the Berlin
airlift, and the 1949 creation of the North Atlantic Treaty Organization. The so-called
Cold War took a dramatic turn in September 1949 when it was disclosed that an atomic
explosion had occurred in the Soviet Union. Recognizing that the Soviets had the
capability of producing atomic bombs, American military planners began to assess
delivery capabilities. The development of jet-propelled bombers of increasingly longer
range and their mid-air refueling, as well as intercontinental and submarine-based missiles
carrying nuclear warheads, confirmed the reality of a possible nuclear attack upon the
United States.
Response to the possibility of nuclear attack took various forms. For the armed
services, increasingly sophisticated detection and interception capability, and guaranteed
counter-force response, were developed. Civil defense planning, preparations, and
training for public officials, community leaders, and the American people were
undertaken.⁵ New policies established, or actions taken, in support of the continuity of
government at the federal level are less well known.
Two months after succeeding to the presidency upon the death of Franklin D.
Roosevelt, Harry S. Truman sent a June 19, 1945, special message to Congress asking for
a revision of the succession law. He noted that, in naming his Cabinet members, a
President chose his successor, and concluded that, “I do not believe that in a democracy
this power should rest with the Chief Executive.”⁶ In the face of congressional failure to
complete legislative action, he renewed his request in his January 14, 1946, State of the
Union message⁷ and, again, in a February 5, 1947, letter to Senate and House leaders.⁸
Five months later, congressionally approved legislation came to the President’s desk and
was signed into law on July 18. It placed the Speaker of the House and the President pro
tempore of the Senate in the line of succession after the Vice President and ahead of the
Cabinet secretaries. To become acting President, the Speaker or the President pro
tempore would be required to resign his congressional position and otherwise meet the

⁵ See Harry B. Yoshpe, Our Missing Shield: The U.S. Civil Defense Program in Historical
Perspective (Washington: Federal Emergency Management Agency, 1981).
⁶ U.S. General Services Administration, National Archives and Records Service, Office of the
Federal Register, Public Papers of the Presidents of the United States: Harry S. Truman, 1945
(Washington: GPO, 1961), pp. 128-131.
⁷ U.S. General Services Administration, National Archives and Records Service, Office of the
Federal Register, Public Papers of the Presidents of the United States: Harry S. Truman, 1946
(Washington: GPO, 1962), p. 52.
⁸ U.S. General Services Administration, National Archives and Records Service, Office of the
Federal Register, Public Papers of the Presidents of the United States: Harry S. Truman, 1947
(Washington: GPO, 1963), pp. 122-123.

constitutional qualifications to hold the presidential office. The statute became effective
on January 20, 1949.⁹
Continuity of government planning conducted in the context of civil defense
preparations came under direct presidential purview in 1962 when President John F.
Kennedy signed a series of executive orders assigning emergency preparedness functions
to the Cabinet departments and selected agencies.¹⁰ These and subsequent related orders
were consolidated and upgraded in E.O. 11490, issued in 1969,¹¹ which was upgraded by
E.O. 12656 in 1988.¹² The details of the continuity of government plans and preparations
produced pursuant to these directives are not public information, due to their sensitive,
contingent status. It has been reported, however, that such arrangements do include the
protection of the leaders of Congress and the justices of the Supreme Court.¹³ There were,
as well, plans for relocating the President and Congress in operational facilities outside
of the District of Columbia in the event of imminent nuclear attack.¹⁴
A series of presidential national security directives have also fostered continuity of
government planning and preparations. The current authority in this series, Presidential
Decision Directive 67 (PDD 67), was signed by President William Clinton on October 21,
1998, and relates to ensuring constitutional government, continuity of operations
planning, and continuity of government operations. Federal agencies are required to
develop Continuity of Operations Plans for Essential Operations that identify those
requirements necessary to support the primary functions of the agencies, such as
emergency communications, a chain of command, and delegation of authority. The full
text of the directive remains security classified.
Current Arrangements
The Legislative Branch. The Constitution provides that in the event of vacancies
in the representation from any state, the governor of the affected state shall issue writs of
election to fill such vacancies or, in the case of a Senate vacancy, may, if so empowered
by state law, make a temporary appointment until an election may be held, in accordance
with state law. Plans exist for the protection of the leadership of Congress, evacuation
from the seat of government being a primary action. Additional details of these plans and
comparable plans of legislative branch agencies, such as the Congressional Budget Office,
the General Accounting Office, and the Library of Congress, are not public information.

⁹ 61 Stat. 380; 3 U.S.C. 19.
¹⁰ See E.O. 10997-11005, E.O. 11051, and E.O. 11087-11095, 3 C.F.R., 1959-1963 Comp., pp.

540-572, 635-644, 722-749.

¹¹ 3 C.F.R., 1966-1970 Comp., pp. 820-861.
¹² 3 C.F.R., 1988 Comp., pp. 585-610.
¹³ See Edward Zuckerman, The Day After World War III (New York: Viking, 1984).
¹⁴ Ted Gup, “The Last Resort,” Washington Post Magazine, May 31, 1992, pp. 11, 13-15, 24-27;
Kenneth J. Cooper, “Hill Leaders ‘Regret’ Reports on Bomb Shelter Site,” Washington Post,
May 30, 1992, pp. A1, A9; Ted Gup, “The Doomsday Plan,” Time, vol. 140, Aug. 10, 1992, pp.

32-39.

The Executive Branch. The Constitution provides that, in the event of the death
of the President, the Vice President shall become President. In the event of vacancies in
the offices of both the President and the Vice President, statutory law prescribes the line
of succession, beginning with the Speaker of the House of Representatives, followed by
the President pro tempore of the Senate, and the members of the traditional Cabinet,
beginning with the Secretary of State and extending to the other comparable positions in
the order of their statutory creation. Since December 2001, President Bush has signed
several executive orders prescribing the line of succession within the departments in the¹⁵
event that a Cabinet secretary is killed or incapacitated. Federal departments and
agencies have been assigned emergency preparedness responsibilities, including planning
for the continuity of government. Aspects of these plans include evacuation of the
President and other principal executive officials to locales outside of the seat of
government and, in some cases, their relocation at secondary or satellite management
centers where they shall continue to perform their administrative responsibilities. Various
aspects of emergency or crisis coordination may be conducted by the National Security
Council, the Federal Emergency Management Agency, the Department of Defense, the
recently established Homeland Security Council and Department of Homeland Security,
and federal financial management entities.
The Judicial Branch. The Constitution establishes the Supreme Court of the
United States and prescribes the statutory creation of inferior federal courts, but is silent
regarding the continued functioning of the federal judiciary during or after an
incapacitating catastrophe. Plans exist for the protection of the justices of the Supreme
Court, but the details of these plans are not public information. In locales of the United
States where federal courts could not function due to an emergency, the President might
temporarily declare martial law and vest minimal trial court authority in military tribunals
convened by commanding officers in the field dispatched to enforce federal law.¹⁶
The Future
Shortly after the September 11 terrorist attacks, political scientist Norman Ornstein
questioned the adequacy of constitutional arrangements concerning the continuity of
Congress in the event that many or most of its Members were lost as a result of similar
such terrorist action. “A literal reading of the Constitution,” he wrote, “would cast doubt
on whether Congress could even convene under those circumstances.” However, noting
that, since the Civil War era, both houses of Congress had defined a working quorum “not
as a majority of the overall membership of the House and the Senate but as a majority of
those duly chosen, sworn and living,” Ornstein thought the situation might be complicated
and made more problematic “if there were a substantial number of Members alive but
incapacitated.” Moreover, he commented, even if these difficulties were overcome, “for
Congress to operate under those circumstances for long — passing sweeping anti-terrorist
laws, emergency appropriations and economic recovery measures — would tax its

¹⁵ See, for example, E.O. 13241-E.O. 13247, Federal Register, vol. 66, Dec. 21, 2001, pp. 66258-

66272.

¹⁶ See 10 U.S.C. 332.

legitimacy, particularly if there were much greater partisan and regional differences
among the surviving (and ambulatory) lawmakers than existed in the full House.”¹⁷
His solution — “to create a small, short-term task force of constitutional scholars and
former lawmakers” to make recommendations — was realized with the Continuity of
Government Commission, jointly created by the American Enterprise Institute and the
Brookings Institution. In June 2003, this panel called for a constitutional amendment to
give Congress the power to provide legislatively for the appointment of temporary
replacements to fill vacant House seats after a catastrophic attack and to fill temporarily
House and Senate seats that are held by incapacitated members. Other proposals included
rules changes to ensure that Congress could be effectively reconvened after an attack, and
to provide in advance for short-term appropriations for the executive branch if Congress
is unable to meet.¹⁸
During the 108^th Congress, several reform measures were introduced, but only a few
came to a vote. The House supported (H.Con.Res. 190) establishing a temporary joint
committee to study and make recommendations concerning the continuity and authority
of Congress during times of crisis. Later, it approved legislation (H.R. 2844) to require
the states to hold special elections to fill vacancies in the House in extraordinary
circumstances, but rejected, on a 353-63 vote, a proposed constitutional amendment
(H.J.Res. 83) authorizing the temporary appointment of House Members, from a pre-
established list, as a safeguard against the loss of a majority of Members due to death or
incapacity.
On March 3, 2005, the House, on a 329-68 roll call vote, approved legislation (H.R.
841) requiring the states to hold special elections to fill vacancies in the House in
extraordinary circumstances. Two different constitutional amendments (H.J.Res. 26 and
S.J.Res. 6) also have been introduced in this regard.¹⁹
The House Committee on Appropriations reported an original measure (H.R. 2985)
on June 20 making appropriations for the legislative branch for FY2006. It contained a
title that included the text of the earlier House-approved continuity in representation bill
(H.R. 841).²⁰ This title remained in the legislation as approved by the House on June 22
on a 330-82 vote, continued through conference deliberations, and became law when the
President signed the appropriations measure on August 2, 2005.²¹

¹⁷ Norman Ornstein, “What If Congress Were Obliterated? Good Question,” Roll Call, vol. 47,
Oct. 4, 2001, p. 10.
¹⁸ Continuity of Government Commission, Preserving Our Institutions: The Continuity of
Congress (Washington: May 2003), pp. 14, 18.
¹⁹ See CRS Report RS22067, House Vacancies: Proposals for Filling Them After the Death or
Injury of Large Numbers of Members, 2005-2006, by Sula P. Richardson and Paul S. Rundquist.
²⁰ U.S. Congress, House Committee on Appropriations, Legislative Branch Appropriations Bill,

2006, a report to accompany H.R. 2985, 109^th Cong., 1^st sess., H.Rept. 109-139 (Washington:

GPO, 2005), p. 25.
²¹ P.L. 109-55.