The focus here is on the underlying legal and constitutional assumptions of these mass-destruction scenarios, the legal and constitutional problems with proposed solutions, and the creation of continuity and repopulation procedures that would be constitutionally valid and legitimate. The public as a whole is likely unconcerned with such legal niceties as the constitutional validity of what remains of the executive branch after an attack. Nevertheless, in anticipating even the most tragic and unsettling events, we should ensure that any continuity processes conform to constitutional requirements as well as to underlying structural principles, such as separation of powers, federalism, and democracy. And we should make the necessary constitutional or statutory changes to ensure that the present legal landscape can accommodate a continuity mechanism in the event of a mass destruction.
Howard M. Wasserman,
The Trouble With Shadow Government
, 52 Emory L.J. 281
Available at: http://ecollections.law.fiu.edu/faculty_publications/73