the prevailing interpretation of the present provisions of the Constitution as illustrated by the opinions of three recent occupants of the position of Attorney General, now has the sole duty of determining inability where the President himself makes no declaration, the conference proposal tends to reduce the responsibility of the Vice President and to require that he share it with others. The conference proposed amendment would be self-executing in giving this authority to the Cabinet, although the provision that Congress may by legislation substitute an appointed commission for the Cabinet affords a desirable degree of flexibility.

The next problem is how a President who has recovered from his disability may resume the powers and duties of the office. Under the constitutional amendment proposed by this committee in 1960 and approved by the house of delegates, this would be determined by such legislation as Congress may from time to time enact. The conference proposal would make the consittutional amendment selfexecuting, providing in general terms how the problem is to be resolved. The first provision of the conference proposal is that the ability of the President to resume his office shall be established by his declartion in writing. This is in accord with what seems to be the prevailing view under the present language of the Constitution—a view supported by Messrs. Brownell, Rogers, and Kennedy. The conference proposal goes further, specifying that in the event the Vice President and a majority of the Cabinet or such other body as Congress may by law provide shall not concur in the declaration of the President announcing his recovery, the issue may then be determined by Congress.

The last conference proposal calls for filling the office of Vice President in the event it should for any cause become vacant. It calls for a constitutional amendment providing that when a vacancy occurs in the Vice Presidency the President shall nominate a person who, upon the approval of Congress shall serve as Vice President for the unexpired term. While some might object to this solution since it gives the President the power to choose his potential successor, this is not a departure from modern political practice. At the present time it is the presidential candidate who actually chooses his running mate subject to convention approval; just as here the President would choose his second in command subject to congressional approval. However, several other plans have been put forward: (1) requiring the election by Congress of the new Vice President, (2) reconvening the electoral college to fill the vacancy, and (3) the calling of a special election to choose the successor.

A special election by the people would be out of keeping with the present system of quadrennial presidential elections and would introduce complications into the political scene. Election by Congress would have desirable features, but Congress may be at times dominated by a political party opposed to the President and in such event would be likely to name a member of its own party as Vice President, giving the Nation a President and a Vice President of different political parties. The selection of a new Vice President by the electoral college would probably overcome the last mentioned difficulty, but the electoral college now performs almost wholly ministerial functions. It does not necessarily command the respect and regard of a majority of the people and is regarded by many as a political anachronism.

This committee concurs in the view of the conference that it is highly desirable that the office of Vice President be filled at all times. We regard it as essential in this atomic age that there always be available a presidential successor who would be fully conversant with domestic and world affairs and who would be prepared to step into the higher office on short notice and to assume full responsibilities with a minimum of interruption of the conduct of affairs in state.

The committee has two incidental suggestions for changes in the language of the consensus report. First, the reference to "the Cabinet" should be changed where it first appears to read "the Cabinet composed of the heads of the departments of the executive branch of the Government," the purpose being to incorporate a more specific description of the Cabinet than appears at any place in the Constitution as it is now worded. Second, where the term "the President or person next in line of succession" appears for the first time it should be changed to read "the Vice President or, if there be no Vice President, the person next in line of succession,' this suggestion being made for the purpose of greater certainty.

In the light of the January 21, 1964, consensus report of the special conference, the committee has reviewed the 1960 proposal of the association for a constitutional amendment to give Congress the power of establishing a method of tem

porarily replacing the President during a period of inability, and the 1962 association recommendation calling for legislation specifically designed to solve the problem. We find the conference consensus to be in general harmony with our earlier recommendations on inability, and we concur in the additional conference recommendation that the office of Vice President be filled at all times. We have accordingly made the recommendations above concerning amendment of the Constitution in the manner proposed in the conference consensus report.

JONATHAN C. GIBSON, Chairman.
CHARLES J. BLOCH,

HUGH N. CLAYTON,
RICHARD E. H. JULIEN,
ALOYSIUS F. POWER,
WELDON B. WHITE,
LOUIS C. WYMAN.

Senator BAYH. Senator Hruska, do you have any questions to ask? Senator HRUSKA. Not too many, Mr. Chairman, but thank you very much.

In the situation of a joint session or separate sessions of the Housesthere are two situations presented. One would be under section 2, where they elect a Vice President. The other would be a vote on the issue of termination of disability. Do you think that it might be feasible to have a joint session for the first purpose, inasmuch as that would require no debate, but simply a vote. This would allow in one session the true electoral voting strength of each State to be expressed instead of having the operation split into two parts?

Mr. BROWNELL. I can envision that situation. I think mechanically, it could easily be done.

Senator HRUSKA (presiding). There would be no rules to adopt, would there, if they were prescribed in advance?

Mr. BROWNELL. Well, I suppose you could adopt special rules, but you would not necessarily do so. I think that the determining factor there, probably, in our thinking is this, that when the Constitution was originally adopted, the separate Houses of Congress, based upon the differing methods of representation, one basically representing population, the other basically representing the States, was meant to be a very genuine factor in our national thinking. So that any proposals that are submitted to the Congress, I think it is almost inherent in our system that that differing basis on which the two Houses of Congress are elected should be kept in mind. I think that supports the idea of the separate sessions. I think that those factors should be considered in voting upon this question as well as others.

Senator HRUSKA. Pursuing just a little further the matter of what "immediately" means, it has been suggested that if they do not do it immediately, the President will step in any say, "aha, they did not do it immediately, let me take charge."

Is there that possibility, Mr. Brownell? Might he not have some different idea as to what "immediately" means than Congress in its judgment?

Mr. BROWNELL. My reading of the amendment would lead to a different conclusion. Let me call your attention to the language there of the last sentence:

If the Congress determines by a two-thirds vote of both Houses, that the President is unable to discharge the powers and duties of the 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.

I think that contemplates quite clearly that the Vice President would continue during that debate.

Senator HRUSKA. It says "otherwise." What does "otherwise” mean? Does it mean that the vote has come and it is not of the required two-thirds majority, or does it mean that they have not done it immediately?

Mr. BROWNELL. I do not quarrel with the fact that that "immediately" raises the question which you very properly raised this morning. I rely not on a lawyer's interpretation of the word "immediately," but on the force of public opinion to see that this difficult question of orderly government is settled within a very prompt time period.

Senator HRUSKA. Of course, we can assume, and I think properly so, that the normal procedure would be for all Members of Congress to be possessed of good faith. But I call your attention respectfully to the situation-where it is a world crisis, and therefore, you assume we shall act thus and so. Well, we had a crisis here that resulted in over 200,000 people gathering on the Mall of this Nation's Capital, notwithstanding the fact that there was deliberate discussion, extending over several months, of the issue.

Mr. BROWNELL. I see your point.

Am I not correct, however, in saying that the Senate rules will allow limitation of debate with two-thirds vote, so that if you get the two-thirds vote that is called for here in the section, you get the twothirds vote for limitation of the debate? Is that not correct?

Senator HRUSKA. That is correct. If you had two-thirds vote for that purpose, it would be, but not without some preliminary. And of course, you get into the question of whether the preliminary maneuvers leading to that would come within the definition of "immediately." Because you make a motion to take up a report, or make a motion to take up this matter; then you have to have cloture on that. Then you go to the next step and so on. So we do get into some ramifications.

Mr. BROWNELL. My own experience, Senator, personal experience in this matter, grew out of the crisis that was involved in President Eisenhower's heart attack. Of course, like anyone else, I followed the critical situation which developed at the time of President Kennedy's assassination. In both of these instances the one, as I say, I can speak from personal experience on-the public was insistent that there be immediate orderly transfer of power and the Members of Congress overwhelmingly took that same position.

I believe on the basis of that recent experience with which we are all familiar, we can count on a repetition of that kind of public opinion and that patriotic spirit among the Members of both Houses.

Senator HRUSKA. What is your judgment or comment on the doctrine of separation of powers being violated by reference of the matter to Congress, Mr. Brownell?

Mr. BROWNELL. I, as you perhaps you may recall, struggled with this particular item in the proposed constitutional amendment for a considerable period of time. At one time, I even proposed, when this unusual situation arose, that we should rely on the power of Congress under the impeachment procedure. But in the ensuing debate over the years, and the very splendid analyses that appeared in the law journals from time to time by constitutional experts, I came to the

conclusion that in this one area, there would be greater confidence on the part of the public that the right solution had been reached if Congress had this limited authority, not to initiate but to pass upon a severe dispute within the executive branch. It provides safeguards against cabals, against charges, however ridiculous they might be, that certain public officials within the executive branch were acting for personal selfish gains rather than for the public interest. Some scholars have recalled in our history the Hayes-Tilden situation, not a disability situation but one of equal critical nature so far as the orderly function of the Government was concerned, and there it was necessary for the Congress to step in as a last resort.

So I have come to the conclusion that this limited function for Congress in this one particular case is not the kind of violation of the doctrine of separation of powers, which should give us great con

cern.

I am a great believer, as I think my public statements will show, that this is one of the most important pillars of our Government, this separation of powers into three branches. It is only in an unusual situation, with well-defined limitations, as are contained in this proposal, that I would want to see any trespassing, even on the edges, of the support of that principle of Government.

Senator HRUSKA. Did your committee consider the possibility-not perhaps the greater likelihood or lesser likelihood by far-of having the Senate vote not by a 68 vote in favor and 32 against the proposition that the President is unable to resume his duties? Suppose it was only 64 or 65? We would have one view here and another view there by such a narrow margin that confusion, chaos, and uncertainty would be built into the minds of the public. Was that discussed and considered, and if so, have you any comment on it?

Mr. BROWNELL. It was discussed and considered at great length. I think you are quite right in bringing it into full discussion here this morning.

Our opinion is that if there is that much dissension and uncertainty and chaos, it will be reflected throughout the country at large. It would be an absolutely unprecedented situation, and it would arise even though the vote was not taken in the Congress, that the crisis would be there before the vote was taken, that the vote itself would not add to it.

Do I make myeslf clear on that?

Senator HRUSKA. Yes, you do, and it is a matter of taking the thing in balance.

Again, as you very rightly point out, perhaps in 90 percent of the cases, as we go through the next 500 years or so, very likely it will never reach the point we consider. It is only in that extreme use. Yet we put this thing into the basic document of our Government, so we do like to inquire into it.

Thank you, Mr. Brownell, for coming.

Mr. BROWNELL. Thank you, Mr. Chairman, for your patience.

Senator BAYH. It certainly does not require patience to listen to this colloquy at all. It is a very fine contribution.

Mr. Brownell, I want to thank you again. Again I want to make it very clear that we are deeply grateful, not only to you, but also to the American Bar Association, for what they have done to move us

further along the road to what we hope is finding in the near future the best possible solution to these problems.

Thank you very much.

Senator HRUSKA. Mr. Chairman, Representative Curtin, of Pennsylvania, has sent word that he is desirous of introducing a statement into the record of these proceedings. I ask unanimous consent that leave be granted him for that purpose.

Senator BAYH. It is certainly what we shall do.

I thought for the benefit of those who might be interested in the rest of the proceedings, those of you who have been with us so long, it is the intention of the Chair to go ahead as long as there is a witness who desires to discuss and present his views on this matter.

I hope the delay of your lunch hours will not be a problem.

Mr. Sharp, counsel with Senator Dodd, has asked for leave to incorporate the statement of Senator Dodd into the record.

I would then, following Mr. Sharp, ask Chief Justice Musmanno if he would give us his views.

It is my understanding that Mr. Martin Taylor is, was, and I think will be here.

Also, I would like to ask any of the witnesses who might be next in line when Congressman Curtin arrives if they will be so kind as to let him make his brief statement so that he may return to the House. Mr. Sharp, we shall hear Senator Dodd's views at this time.

STATEMENT OF HON. THOMAS J. DODD, A U.S. SENATOR FROM THE STATE OF CONNECTICUT, AS PRESENTED BY DEAN SHARP

Mr. SHARP. Thank you, Mr. Chairman.

Senator Dodd would have liked very much to be here this morning, and he expresses his regrets that he could not, but he was unexpectedly called out of town. This is his statement that he would like submitted:

Mr. Chairman, first, I want to congratulate you for your able leadership in our search for a solution to the problems of presidential inability and filling vacancies in the office of Vice President.

I am pleased to be one of the cosponsors of this resolution as I was of the same proposal passed by the Senate last year.

The language contained in article II, section 1, clause 5 of the Constitution does not clearly define presidential inability, nor does it say who shall decide whether or not such inability exists.

It is also vague regarding whether the office of the President or only his powers are to be assumed by the Vice President.

These constitutional problems demand constitutional solutions, and I am of the opinion that Senate Joint Resolution 1 is a sound constitutional solution.

I do not believe it is necessary to dwell on the details or mechanics of the proposed constitutional amendment, but I would like to describe briefly what it will do.

It would permit the Vice President and a majority of the Cabinet to determine the inability of a President, if, and I want to emphasize the word "if," the President refused or was unable to affirm his inability. It would permit the President to choose a Vice President subject to approval by a majority of Congress.