order of succession loophole?

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This report, a joint effort of the American Enterprise Institute and the Brookings Institution explores problems with the current succession in case of a catastrophic attack on the government.

The Continuity of the Presidency: The Second Report of the Continuity of Government Commission

In their scenario, where the attack occurs at the State of the Union, all of the Senate and all but 20 representatives are killed, with only five able to actually participate. The Secretary of Agriculture becomes acting president. Five Supreme Court justices are killed, so there is no authoritative body to adjudicate any disputes.

The president recovers but is quite weak, but collapses during a meeting with the PM of Denmark, who happened to be in town. The Secretary of Agriculture was forced to resign his cabinet position in order to act as President, and can't act a second time.

Senators are appointed by the governors (only 45 states permit such appointments), and a former Secretary of State is named Senate President Pro Tem (apparently Governor Abbott appointed James Baker). Meanwhile the House uses an old precedent that a quorum is 50% of those elected and alive, along with an interpretation that the 15 disabled representatives are as good as dead, and a quorum is 3 of 5 representatives, until replacements can be elected. There is also a claimant in an Undersecretary of State.

The report states that it is unconstitutional for a congressional officer to become president. It suggests that only the first four cabinet officers (Secretaries of
State, Treasury, and Defence; and the Attorney General) be in the line of succession; and that up to five other successors who reside outside D.C. be designated successors. It also suggests that there be an explicit procedures for transitioning between officers in cases of disability, etc.

They also recommended that the meeting of presidential electors be moved to a couple of days prior to the day of counting by Congress, since the president-elect would already be known by then.

The House can act with a majority incapacitated, but it is provisional, and can be undone by the full House later. Assuming that isn't an issue, 5 representatives would probably elect a non member as speaker, and then have them sworn in as President, so as to not give up one of only 5 House seats, when it would be a while before someone new could be elected. The Senate would have no problem establishing a proper quorum from the governors, so perhaps they'd just pick the Senate Pro Tempore from some state that could quickly appoint another Senator.

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Has the House ever acted with a majority incapacitated? Note that 3 USC 19 implies that the Speaker will be a Representative, since a requirement of becoming an acting president is to resign a position as representative.

There is also the constitutional issue of whether congressional officers are officers of the United States. With five justices killed, there is no way for the SCOTUS to adjudicate the constitutionality of 3 USC 19 (and it is undesirable for adjudication to be required under such circumstances).

In the scenario presented in the report, the governors did appoint enough senators to form a quorum, and they named a former Secretary of State to serve as Senate President Pro Tem. Governors Baker, Cuomo, McAuliffe, or Brown are unlikely to appoint Kerry, Clinton, Powell, or Rice. Kissinger and Albright are ineligible to be acting president. Schultz is to old. That is why James Baker is the apparent choice.

The rules were only changed to allow that in 2005. I don't know of a case where there's been been a vote without a majority of the House. 174 were absent for the Schiavo Bill. Somehow it passed the Senate 3-0, with 97 absent.

I think the part about them resigning as representative can be ignored if they aren't a representative.