Yes, the U.S.’ national security enterprise will ‘keep calm and carry on’
One of my students asked me about a rather overwrought news story that headlined “Trump’s illness raises national security concerns as Pentagon looks to reassure public.” While the health of the President should always be a concern, the U.S.’ constitutional architecture, as well as decades of detailed “continuity of operations” preparation, make America’s national security structure well able to weather any eventuality.
Let’s unpack that structure a bit as doing so should help everyone get more confident in the nation’s security as we pray for the President’s health.
It’s reassuring to keep in mind that the Founders who forged the Constitution were keenly aware of the importance of having a document that would endure in the face of extreme adversity. After all, they had the recent experience of the Revolution which illustrated very real existential dangers. Thus, they designed a Constitution that would withstand the most severe challenges.
Former Justice of the Supreme Court Charles Evans Hughes famously observed in 1917 in the shadow of the First World War:
“It has been said that the constitution marches. That is, there are constantly new applications of unchanged powers, and it is ascertained that in novel and complex situations, the old grants contain, in their general words and true significance, needed and adequate authority. So, also, we have a fighting constitution.”
A thoughtful essay by Prof Matt Waxman scrutinizes Hughes’ speech, but still concludes that “the central claim that our ‘fighting constitution’ confers flexible powers to ‘wage war successfully’ still holds.” In other words, preserving the Nation’s security is central to the Constitution’s announced purpose of “[p]rovid[ing] for the Common Defense.”
How does it do it? An excellent 2018 Congressional Research Service (CRS) report lays out the Constitution’s most relevant provisions, starting with Article II, Section 1, clause 6:
“In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.”
The 25th Amendment provides the detailed procedure in Sections 3 and 4:
Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office.
Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
The Presidential Succession Act
The Presidential Succession Act (codified in 3 U.S.C. § 19) provides the sequence of successors to the President in the event the Vice President is unable to serve for any reason.
The Speaker of the House is next in line (Speaker Pelosi), and then the President pro tempore of the Senate (Sen. Grassley). If neither of those persons are able to serve, the law provides this order of succession:
If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
Some have questioned the constitutionality of the Presidential Succession Act (see here), but I’m convinced it is constitutional. I further believe the courts – if called upon to do so – would find the issue justiciable, and would hold it constitutional. Given that the current statute traces its origins to 1792, I’m convinced that no court, and especially the Supreme Court, would upend a statute whose essentials have been unchallenged for well more than two centuries – especially since the Constitution specifically invites Congress to enact exactly such a law.
The Court has long recognized exigencies that national emergencies occasion. The Civil War-era Prize Cases are just one example where the Court understood that the Constitution needs to be read in a way that safeguards the Republic. In the 1949 case of Terminiello v. Chicago, the legendary Nuremberg prosecutor Justice Robert Jackson warned against any interpretation of the Constitution that would convert it into a “suicide pact.”
In my view, there is zero possibility that the current Court would be disposed to interpret the Constitution in such a self-destructive way; to the contrary, I believe the Court – as it has so often in matters of national security – would be scrupulously faithful to the Constitution’s imperative, as noted above, to “provide for the Common Defense”.
The U.S. military and ‘continuity of government’
America’s military has organized itself extremely effectively to counter the challenge of COVID-19. Although every death is tragic, as of this writing (Oct. 3) America’s 1.3 million active-duty troops have suffered just eight COVID-19 fatalities. Despite the COVID crisis, the military has also continued to successfully challenge China and Russia, not to mention conducting intense operations against terrorists in Iraq, Afghanistan, and elsewhere.
Unsurprisingly the Pentagon has had to tamp down rumors. For example, two E-6B nuclear command and control aircraft flew shortly after the announcement of the President’s illness, fueling speculation that the flights were a response. The Pentagon was obliged to announce:
“With regard to reports about E-6B aircraft on alert status, US STRATCOM has confirmed these E-6B aircraft were part of pre-planned missions. Any timing to the president’s announcement was purely coincidental.”
There will likely be more such speculation and rumor-mongering to which the military must respond, but the key takeaway from the Pentagon statement is this:
“There’s been no change to DoD alert levels. The US military stands ready to defend our country and interests. There’s no change to the readiness or capability of our armed forces. Our national command and control structure is in no way affected by this announcement.”
The Pentagon can confidently make that kind of assertion because the U.S. government has over a period of decades developed and implemented extensive “continuity of government” plans that anticipate even the most catastrophic events. As one source puts it:
Since the days of the Cold War, the United States has had a plan in place to continue the operation of the government following a catastrophic attack on the nation’s capital. The 2007 “National Security Presidential Directive 51” directs the geographic dispersion of leadership, staff, and infrastructure in order to maintain the functions of the United States Government in the event the nation’s capital is “decapitated” by a terrorist attack.
In 2017 the Department of Homeland Security (DHS) issued Federal Continuity Directive 1. DHS, through the Federal Emergency Management Agency (FEMA), oversees the National Continuity Programs. To that end FEMA issued the National Continuity Policy Implementation Plan in 2007.
For its part the Department of Defense has a formal “crisis management” process, and the individual services have their own procedures for continuity of operations (see e.g., here). Additionally, U.S. Northern Command has exercised pandemic scenarios which specifically address “continuity of government.” In brief, there is a well-developed architecture to ensure that the U.S. government in general, and its armed forces in specific, is able to execute its mission under the most adverse circumstances.
Moreover, America’s continuity of government process – to include the ability of its armed forces to defend the Nation – does not depend upon any individual. A Washington Post article from last April (“Five myths about continuity of government”) cites as a “myth” the assumption that the “president is the most important part of government,” saying that the “idea that it’s essential to protect the president above all else is a trope of pop culture.” The Post explains:
“Great effort does go into protecting the president, but continuity plans are about ensuring that someone in the line of succession survives — so they can take over. The plans often assume that the president dies in the opening minutes of a national catastrophe. But while the president may die, the presidency always lives. A cornerstone of continuity plans is the assumption that the “acting president” may be one of the more obscure Cabinet secretaries far down the line of succession.”
As someone who served three tours in commands with a nuclear operations’ mission, I’ve spent more than a little time thinking about ‘worst case’ scenarios. In this instance, I firmly believe that Russia and China will be exceptionally wary of doing anything that might be construed as threatening actual hostilities. They are no doubt keenly aware of America’s warfighting capabilities and the robustness and resilience of the command and control system that enables it.
That doesn’t necessarily mean, for example, that they will put their disinformation and other political machinations on hold. Russia and China do seek to conduct “gray zone” operations that sow uncertainty, fear, and – ultimately – an erosion of confidence in our democracy, but they want to conduct their activities in ways that stay below the legal threshold of armed conflict.
Indeed, Americans ought to prepare themselves for an “onslaught on online misinformation,” and the government needs to be ready to aggressively counter it. Still, I think Russia and China are smart enough to avoid seriously provocative actions at this sensitive time.
True, threats like Iran and North Korea – not to mention a range of terrorist groups – could miscalculate, but they might find out the hard way that America’s defenders – the most formidable on the planet – are always ready.
In short, I’m completely confident in the Nation’s ability to protect itself in this difficult situation. As those across the political spectrum hope and pray for the President’s quick recovery, the American people, our friends and allies, and – importantly – our adversaries across the globe, should know that the U.S.’ extraordinarily powerful national security enterprise will ‘keep calm and carry on’.