I write this on the bright and sunny morning of September 11. Exactly 12 years ago, I was on my way to Dulles Airport. As I drove on the access road, convertible top down, I marveled at the beauty of the day. When I parked and went inside to get my boarding pass, the counter was abuzz with the news that, apparently, a small plane had wandered off course and hit the World Trade Center. I took the van across to the United terminal, and watched the news coverage for a bit while I waited to board my plane -- and saw the news that a second plane had hit the towers.
On the jet bridge, we were stopped and turned back -- air traffic had been frozen as it became clear that this was not some errant pilot but something bigger. I retrieved my car and drove home, and turned on the television and watched, transfixed and horrified.
By late afternoon, the news was that United Flight 93 had crashed in Pennsylvania and that brave passengers had thwarted hijackers from their terrorist mission. What made UA 93 different from the other flights that hit the Pentagon and the Twin Towers? It had left Newark, New Jersey, 45 minutes late, giving its passengers an opportunity to communicate with the outside world and learn that they were a part of a suicidal terrorist plot, not a standard hijacking.
United 93 had been scheduled to leave at the same time as the flight that devastated the Pentagon. If it had not been delayed, the odds are that it would have reached its destination, which, I calculated that day, would likely have been the symbol of American democracy, the Capitol of the United States. That beautiful morning, the House of Representatives was in a pro forma session, but the building and its environs were filled with members; in the pre-security era, people were gathered on the steps, lawmakers were holding press events outside on the lawn, and several committees were meeting inside. If a giant commercial airliner loaded with jet fuel had hit the cast-iron dome, the building would have collapsed, and a combination of molten metal, large chunks of marble, and burning fuel would have rained down on the people inside and out.
Those images went through my mind that afternoon -- along with a nagging thought: What if a majority of members of the House were killed or missing under the rubble? The Constitution is unambiguous about the quorum required to do any official business -- half of the members of the House or Senate. So I imagined what would happen in America after this horrific attack if there were no Congress. The House can only fill vacancies via special election -- and my research showed that those individual contests took on average four months, under the most placid of circumstances. A country without a Congress for many months would mean the equivalent of martial law, with decisions about going to war, suspending habeas corpus, and implementing draconian security measures done by executive fiat or with some jerry-rigged extra-constitutional improvisation. There would be no regular means to appropriate money for emergency disaster relief in New York or Virginia.
To my horror, I realized that the United States had no plans in place to deal with a surprise terrorist attack, for any of the branches of government. The Presidential Succession Act of 1947 was antiquated and poorly designed. The Supreme Court had only a statutory quorum requirement of six; if it fell below that number, critical decisions about legality or constitutionality of actions would fall to one or more of the 14 Appeals Courts. The Senate does have, for most states, executive appointments to fill vacancies -- but as the subsequent anthrax attacks demonstrated, if, say, 60 senators were in intensive care for weeks or months with inhalation anthrax, there would be no vacancies and no quorum.