A fatal flaw? A hole in the Constitutional system could prevent Congress from functioning after a terrorist attack. America needs bold action.

The attacks on September 11, 2001 could have been worse. Were it not for the brave passengers on board United Airlines Flight 93, much of Congress might have perished. Recent interviews with captured terrorists have confirmed that this plane was headed for the U.S. Capitol. Had that plane reached its target, hundreds--perhaps thousands--more would have died and a hole in our Constitutional system might have prevented Congress from functioning for months. America's legislative branch might have lost legitimacy and power at just the time the nation needed bold leadership to make difficult decisions.

But United Flight 93 took off 41 minutes late. This delay gave the passengers time to communicate with loved ones and find out that the hijackers were on a suicide mission: They stormed the cockpit and prevented the plane from reaching its target. Had the plane hit the Capitol, several hundred members of Congress could have died or sustained serious injuries.

This would not have been a serious problem for the Senate. The Seventeenth Amendment gives states the power to fill Senate vacancies with temporary appointments.

But only a special election can fill a vacancy in the House of Representatives. Special elections take about four months to complete. Under ordinary conditions, this does not pose a problem: The House can function well with 433 members rather than the full 435.

If a large number of seats became vacant, the House would be in trouble. To begin with, the Constitution states that each body needs a majority of members to form the quorum it needs to do business. A series of rulings beginning in 1861, however, has led to a loose understanding of what constitutes a quorum in the House. Today, a majority of the members "chosen, sworn, and living" are a sufficient number to do the people's business. As a result, a large number of deaths would not prevent the formation of a quorum, but it might have the equally perverse result of allowing a few members to act in the name of the entire House. If 400 members were killed, then the remaining 35 would constitute the House, and 18 a majority.

Those 18 members could pass legislation, impeach the President, and confirm a new Vice President. The speaker of the diminished House would be third in line to the presidency, and, if the President and Vice President were killed in an attack, that new Speaker, elected by only 18 members, would ascend to the Presidency for the remainder of the term.

Both the House and Senate would face a major crisis if many members were incapacitated. Had United 93 hit the Capitol and its jet fuel exploded, there might have been more members laid up in hospital burn units than actually killed. If a large number of senators had contracted inhalation anthrax when the germ hit the building in the fall of 2001, it would have taken months for them to recover. If even a few members contracted a virulent infectious disease, likewise, the entire Congress might not want to come together at all for fear of spreading the disease. There is no effective way for Congress to replace these members temporarily until they recover. The alternative is to leave them in place and face the possibility that the Senate or House would not be able to form a ...