Imagine a House of Representatives making decisions up to and including selecting a president of the United States with just three Members participating. Unthinkable, isn’t it? Now imagine a House of Representatives that enacts a rule in direct contradiction with an express constitutional provision, almost daring the Supreme Court to do something about it. Just as unthinkable.

Think again. [IMGCAP(1)]

For opponents of any provision to allow emergency interim appointments to the House in the event of a catastrophe, the issue of incapacitation has always been the elephant in the room. But hard as they tried to ignore it, they could not.

When the House Administration Committee held a hearing on continuity-of-government issues a few months back, Don Wolfensberger, a former House Rules Committee staffer who opposes the idea of interim appointments, conceded that widespread incapacitation of Members of the House in the event of a terrorist attack could result in a House without a quorum for a long period of time, and that filling that gap would require a constitutional amendment.

The Constitution sets a clear and unambiguous standard for a quorum (defined as the number of Members required to do any official business). That number is a majority of the Members of the body — period. The plain language of the Constitution — strict constructionists, are you listening? — leaves no wiggle room. And the debate at the time of the framing of the Constitution makes it clear that the Framers were concerned about a tiny fraction of the body conducting itself as if it represented the whole country.

To be sure, the House has in modern times asserted a bit of wiggle room, effectively changing the definition of a quorum to a majority of those chosen, sworn and living. There has been one other major adjustment. Before 1890, the House made the quorum requirement that of a majority of the Members voting on a measure. That enabled large numbers of Members to block action by not voting, even if they were present in the chamber.

In 1890, Speaker Thomas Reed (R-Maine) ruled that it was sufficient to have simply the presence, not the votes, of a majority of Members, a ruling subsequently upheld by the Supreme Court in United States v. Ballin. The court in effect ruled that, within the context of the constitutional requirement of a quorum, it is up to the House to determine the method for ascertaining whether a quorum is present.

That is a bit of wiggle room — but not enough to defy the Constitution itself. Wolfensberger was effectively admitting just that when he conceded that the House might indeed be paralyzed for a long time, even with a provision for expedited special elections, if many Members were incapacitated and unable to provide even their presence for a quorum.

However, Rule Chairman David Dreier (R-Calif.) and many of his allies are not willing to make that concession. Instead, they are on the verge of using a House rule — voted on only by a majority of Members of one chamber, not by two-thirds of both and ratified by three-fourths of the states — to openly defy the clear-cut language of the Constitution by redefining a quorum to what could be literally a handful of Members even while most are indeed elected, sworn and living.

The Rules Committee held a hearing on this subject a few months back, in which House Parliamentarian Charles Johnson, in the careful and circumspect language you would expect from a sitting Parliamentarian, raised serious doubts about both the efficacy and the constitutionality of defining a quorum down.

The Rules Committee beat the bushes to find one well-known constitutional scholar who would not object to the idea; most major scholars had signed a letter some time ago to Sen. John Cornyn (R-Texas) asserting that a smaller quorum would be unconstitutional. Walter Dellinger’s testimony said, in effect, that even if it were unconstitutional, the House could get away with it in an emergency condition. But even then, he warned, such a change would need to have a trigger that was accepted by a broadly bipartisan consensus.

The draft now circulating from the Rules Committee is anything but bipartisan. It gives the authority to cut out Members of Congress who are deemed incapacitated by the Sergeant-at-Arms to the Speaker. It is possible that the draft will be changed, to give the authority to both Speaker and Minority Leader. Even if that happens, a rules change of this sort is a breathtaking defiance of the Constitution for the sake of expediency

Cornyn, who is a strict constructionist, said it well in Monday’s Roll Call: “The proposal to eviscerate the quorum rule is unconstitutional, because it turns Members into non-Members.” That would be the position of an overwhelming majority of constitutional scholars — many of whom, ranging from Laurence Tribe and Michael Glennon to Ronald Rotunda and Eugene Volokh — wrote letters to Cornyn stating flatly that the only way to deal with the incapacitation issue is by constitutional amendment. At the same time, allowing a literal handful of Members to make life-and-death decisions after a terrorist attack is immensely dangerous, not just because they would in no way be representative of the country, but because any decisions they make would lack serious legitimacy.

Now add a third element. Once you start to redefine a quorum and challenge the Constitution by a rules change implemented by a majority, you have established a principle that will be very tempting for future Congresses to emulate — and extend.

If Congress can set its own rules without any regard for the words of the Constitution, it could easily explore other ripe areas. Why not a rules change making any vote on tax increases out of order unless it has two-thirds support? Why not use the quorum rule just as you use the extension of a 15-minute vote to three hours to find leverage. You could hold a vote at the precise moment when minority members are out of town? Unthinkable, you say? Go back and read paragraph one.

The visceral reaction against the need for a constitutional amendment to deal effectively and legitimately with the continuity of Congress is deep, and is not just held by Republican leaders. This rules move may well attract support from some Democrats who want to show people that they are doing something in the face of a real terrorist threat. I hope they, and all Members who really care about the Constitution, will think twice. When it comes to terrorist attacks, we do need to think about the unthinkable. But that means an attack by evildoers on our life and limb, not an attack on our Constitution from within.

Norman Ornstein is a resident scholar at the American Enterprise Institute.