Mr. CURTIN. Certainly I would have no objection to the President being heard. I think he should be heard under those circumstances. Mr. ROGERS. But you don't provide for him being heard, do you? Mr. CURTIN. Well, although it is not written down in words, he certainly would not stand mute during this whole proceeding unless he was in real bad shape.

Mr. ROGERS. You put the Chief Justice of the Supreme Court and then the Associate Justice who may be of the opposite political party, then you have the Secretary of State and the Secretary of the Treasury, and there is even some question what their political affiliation may be at the present time.

Mr. CURTIN. We can normally assume they are sympathetic with the President.

Mr. ROGERS. Then you say the Speaker of the House, who could be the opposition party.

Mr. CURTIN. Possibly, but then you have the minority leader, who obviously is of a different party than the Speaker of the House, so you have divided the parties in the House.

Mr. ROGERS. But up to that point you have a possible 3 to 2 against the President.

Mr. CURTIN. I don't buy that-I don't agree, sir.

Mr. ROGERS. When you say you don't buy it, suppose that the Chief Justice is of the opposite political party.

Mr. CURTIN. Right.

Mr. ROGERS. And that the senior Associate Justice is of the opposite party.

Mr. CURTIN. All right, that is two.

Mr. ROGERS. And as the Secretary of the Treasury was at one time with the opposite party. Let's assume the Secretary of State and Secretary of Treasury are sympathetic with the President.

Mr. CURTIN. That I think we can assume.

He wouldn't have mem

bers of the Cabinet unfriendly to him--not for long.

Mr. ROGERS. All right, let's assume the Speaker is of the opposite political party.

Mr. CURTIN. Right

Mr. ROGERS. Then you get the Speaker, the majority leader, and the minority leader of the House. Then you get the President of the Senate, the leader and the minority leader in on this question of making a determination.

Mr. CURTIN. Right.

Mr. ROGERS. Now, don't you envision that there is some possibility of some political implications that may arise in connection with it? Mr. CURTIN. No, sir; because this Commission is split right down the middle politically.

Mr. ROGERS. Let me cite you the history of the political campaign of 1876.

Mr. CURTIN. Yes, sir.

Mr. ROGERS. Well, the question arose as to who got elected President, so they referred it over here to the Supreme Court, and the Supreme Court divided it according to political lines and gave it to the men of their party. Now, that is the Supreme Court that did that.

Now, after the War Between the States, do you imagine that Johnson, the President who succeeded Abraham Lincoln-if he had had

this group determine whether or not he was fit and able to serve as President is there any question in your mind but what all that group would have found him insane because they thought that his actions were sufficient?

Mr. CURTIN. As a matter of fact, sir, the makeup of the Commission was assuming a preponderance in favor of the President's party, because I was assuming that the two members of the Supreme Court were nonpartisan.

But taking your assumption that they would be of a party that was opposite to that of the President, then you have got a commission that is made up 4 to 4.

Assume that the two members of the Supreme Court are of a party that is different than the President's. That would be offset by their counterparts, the two people of the Cabinet who I think we can assume would be of the President's party or would be very friendly to the President. That is 2 to 2.

You have got in the House the Speaker and the minority leader; they are opposite parties, so that is 3 to 3.

You have got in the Senate the majority and minority leader, so

that is 4 to 4.

It is right down the middle, politically.

Mr. ROGERS. The point I am trying to emphasize is, don't you believe it to be dangerous for us to vest in the hands of, be it 5, 7, or 11 people, the determination of who is President of the United States, without some check on them?

Mr. CURTIN. Well, it depends on who you want as a check on it. Mr. WHITENER. Mr. Rogers, I wonder if you have considered this possibility. Suppose that a President dropped dead, the Vice President is in the hospital at the time, and these Cabinet members that Mr. Curtin mentioned are so friendly to the President and may detest the Vice President. Then what happens?

Mr. CURTIN. Well, again, sir, if I can answer that question, normally the Vice President is going to have the equal friendship of the Cabinet because of the fact that they are presumably the same party as the Vice President and it is the President's appointees, if we are using a political

Mr. ROGERS. The point that I am trying to state and which I think you should consider is that with the selection of people that you have here, most of them are politically minded.

Mr. CURTIN. If I can answer that, sir, if you go to the Congress, you are going to find every one of the Members of both Houses are politically minded.

Mr. ROGERS. Yes; but as a group, in determining action that may be taken, I think there should be some check on people of this nature, regardless how motivated they may be, because I brought forward the two instances that happened after the death of Lincoln and how close they came to impeaching President Johnson.

Now, you don't envision for 1 minute, if you look at the history at that time, that President Johnson would have had any chance if he had to go before a group of this nature, and then less than 10 years later you have a question of who was elected President, and you refer it over here to the Supreme Court and they divide it strictly on the political line.

Now, isn't it dangerous to our philosophy to place in the hands of any group of men the proper determination of whether or not a man is in Congress? Going one step further, during the period of Woodrow Wilson, after he had a stroke in 1919 he was received by a group in the House and the Senate which were adverse to him. Now, if this group had been there, do you think they would

Mr. CHELF. Would the gentleman yield?

Mr. ROGERS. All right; go ahead.

Mr. CHELF. Along that line, is it or isn't it true that the representation sent by the House and the Senate to interview the President were denied access to him?

Mr. ROGERS. No; I think

Mr. CHELF. Under the Wilson administration.

Mr. CURTIN. If I could interrupt, my understanding is that Mrs. Wilson wouldn't let them through the door.

Mr. CHELF. That is it. You wouldn't want to bring the women down on your backs.

Mr. ROGERS. But even then, if she wouldn't let them in, do you think this group should go ahead and act because the wife wouldn't let them in to see him?

Mr. CURTIN. Again it is a question of relativity. I presume we are saying that 535 men and women are better able to determine the question than a commission of 7 or 8, or whatever it is. It is a question of can 10 people do the job better than 7, can a hundred do it better than 10, can 535 do it better than a hundred?

You speak of the Johnson impeachment proceeding of the last century. Now, there you had this impeachment trial, and certainly the President didn't come up here to a completely impartial atmosphere. There was definitely high feeling involved.

Mr. ROGERS. That is the point that I am getting at.

Mr. CURTIN. That high feeling involved the whole Congress, so that conceivably a whole Congress could have definite opinions. It could not be completely impartial just as perhaps the Commission could not.

Now, I certainly would have no objection, and I am not trying to impose my thoughts on you, obviously, but I certainly would have no objection if you wanted the Congress to pass on the findings of the Commission. That would be perfectly all right with me, but somebody, somewhere along the line, has got to make a decision.

Mr. WHITENER. I think what Mr. Tenzer was trying to point out was that in the other proposals the Congress has the right to make the final decision because the Congress is in theory, at least, more representative of the people, and in this modern time I think that if the authority would not be adequate, if the President were accused by some group of being mentally incompetent, and the Congress made the decision, the Congress could then invite the man over here to speak to the Congress and appeal. It could be televised and the people of the Nation could look at it, and if the man was competent, and it was apparent that he was competent, it would not only be apparent to Members of the Congress but would be apparent to the Nation. There would be very few Members of Congress, no matter how politically motivated they were, who would stand up and say the man was mentally incompetent and otherwise unable to carry on his work if the millions of people in the Nation who looked on him on television as he spoke to the Congress decided he was all right.

it

It seems to me that is the danger of this system here, because you could have a star chamber session, and then build up a record and send up to Congress, and if we only had appellate jurisdiction and the poor President didn't have a right to come up and present such evidence as he wanted before the Congress, it just wouldn't be much of a trial. You wouldn't even treat a common bootlegger that way in Pennsylvania.

Mr. CURTIN. There is merit to what you say, obviously, but I could call attention to the fact that I am sure you gentlemen all realize and I am not a physician, I am just an attorney-while I have practiced law I have seen occasions where people who were mentally ill, badly mentally ill, have appeared before courts and have scintillated for about a half hour or so, but, of course, as soon as they get tired their disability becomes apparent. However, they can make a very fine speech if they are just set up for it, so, therefore, the fact that someone appears before a group of men and makes a good speech doesn't mean that he is not mentally ill.

Mr. WHITENER. But you would let Congress have some authority in this resolution of yours, in this amendment, and then the Congress could say that the President would have a right to appear, but that if he did he would have to be submitted to interrogation by committees, Representatives of Congress, that this would have to be done in public. You could do many things, but your resolution wouldn't give Congress any right to do anything but sit up here and make speeches and say the Commission has done right or wrong.

Mr. TENZER. In any event, Congressman Curtin, this would be a period of emergency, and in a period of emergency it would not be best to have the Congress in session.

Mr. CURTIN. I would certainly agree to that, and I would have no objection to having the bill amended, if the committee, in its wisdom, feels it is a good approach. I certainly have no objection to having the resolution amended so that the findings of the Commission would be subject to the approval of the Congress. That would be perfectly all right with me. But somewhere along the line somebody has got to start it. and I think a commission is the way it should be started.

The CHAIRMAN. Thank you very much, sir. We appreciate your contribution.

Mr. CURTIN. Thank you, gentlemen.

Mr. POFF. May I express my commendation to the gentleman for his contribution on the matter and to ask if I have correctly interpreted his testimony to mean that while he is first interested in the proposal he has made, you would be glad to see this committee act expeditiously upon what has come to be pretty much a consensus of an approach which is somewhat different from your own.

Mr. CURTIN. I certainly agree with that.

Mr. POFF. I thank the gentleman.

Mr. CHELF. In other words, anything is better than nothing-and that is what we have right now.

Mr. CURTIN. Anything is better than what we have right now. The CHAIRMAN. Our next witness is our colleague from Ohio, a new member, and we certainly welcome him here, the Honorable Rodney M. Love.

Before he addresses the committee, Mr. McCulloch would like to say something.

Mr. McCULLOCH. I would like to welcome this man to the committee. Judge Love is the new Congressman from the Third District of Ohio. Facetiously I should like to say he comes from Dayton, which is the main suburb of the Fourth Congressional District of Ohio. STATEMENT OF HON. RODNEY M. LOVE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO

Mr. Love. Thank you, Mr. Chairman, and thank you, Congressman McCulloch, for those very kind remarks. For one thing, since I am a newcomer here, Mr. Chairman, and in view of the very fine resolutions you have before you, may I be permitted, sir, to submit my written statement, without taking up any further time of this committee? The CHAIRMAN. You have that permission. Mr. Love. Thank you so much.

(The prepared statement of Congressman Love reads as follows:)

TESTIMONY OF REPRESENTATIVE RODNEY M. LOVE, OF OHIO, IN SUPPORT OF HOUSE JOINT RESOLUTION 236, PRESIDENTIAL DISABILITY AND SUCCESSION

Mr. Chairman, members of the Judiciary Committee, I decided to submit House Joint Resolution 236 because I believe the U.S. Constitution is not only ambiguous, but defective, on the subject of presidential disability and that we, as a nation, have been extremely fortunate that our Presidents have been able to discharge their constitutional responsibilities. The office of Vice President was made vacant due to the tragic death of Mr. Kennedy and there has been no procedure for filling it. In support of the American Bar Association and the national forum which it sponsored, Senator Birch E. Bayh, of Indiana, and Representative Emanuel Celler, of New York, chairman of this committee, I submitted a bill of my own. I know the people of my district would want me to speak out in favor of such an amendment to the Constitution.

In my written testimony, I make no reference to history. This has been most carefully documented and repetition is unnecessary. I merely want to emphasize that prudence requires this representative body to act, now, to submit to the State legislatures, an amendment correcting a defect known to us for many, many years.

In addition to supporting the overall effort, I want to point out what I consider to be a danger, in the event a President would transmit to the Congress his written declaration that no inability exists. The Bayh-Celler resolutions provide that the President shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive department, or such other body as Congress may by law provide, transmits, within 2 days to the Congress, his written declaration that the President is unable to discharge the powers and duties of his office.

My question is, What could happen within that 2-day period, in the event an incompetent President resumed the duties of his office and issued orders affecting the security of the Nation? While I agree, the President should be able to regain the powers and duties of his office easily, when his inability ceases to exist, nevertheless, the Vice President should have time to file a written declaration with Congress, before the presumption in favor of the President's ability is restored.

To accomplish this, I have provided that the President shall resume the duties and powers of his office on the third day following the transmittal of such declaration to the Congress unless, prior to the end of the third day, the Vice President, with the appropriate consent of executive department heads, transmits to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. I use 3 days on the theory that the President's written declaration could be submitted on Friday and Congress might not be in session over the weekend.

I found no particular objection to the language that Congress shall immediately decide the issue, for it would seem to me that this means Congress