Mr. COPENHAVER. According to the newly revised Senate proposal that says Congress shall immediately proceed to consider, which is about as open as you could get. Mr. MUSMANNO. And you feel that Congress could not, under that language, convene without the call of the President? Mr. COPENHAVER. No. Mr. MUSMANNO. I would say that since this constitutional amendment is complete in itself that it would necessarily amend any other part of the Constitution which would call for the convening of Congress by the President. This would be one of those extraordinary situations where Congress would need to convene automatically. Mr. COPENHAVER. Of course I might come back-and I don't wish to prolong this I could come back and say naturally I am trying to envision a situation with a hostile Congress, and assuming that Congress could prolong its discussion indefinitely. By the same token, Congress may not wish to reconvene, even assuming your statement was correct about the power to recall. Mr. MUSMANNO. I feel that there should be some expression in the amendment that Congress shall proceed within a certain chronological time. Mr. CHELF. Mr. Foley, general counsel. Mr. FOLEY. In the light of your comment with regard to the office of the Vice-Presidency, I would like to call your attention to the language inserted in sections 4 and 5 as submitted by the Senate, that whenever the Vice President and a majority of the principal officers of the executive departments, or such body as Congress may provide, transmits to the President of the Senate-and it goes on-and then in 5 we use the same language, whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives, and then goes on. I would like to ask you this. In the light of that language, we have only one President of the Senate and he is the Vice President of the United States; is that not so? Mr. MUSMANNO. That is true. Mr. FOLEY. So that the Vice President would be writing to himself as the President of the Senate in both section 4 and section 5. Mr. MUSMANNO. When the President of the Senate is absent for any reason, the President pro tempore Mr. FOLEY. Oh, but this constitutional amendment refers to the President of the Senate, and article I, section 3, says: The Vice President shall be the President of the Senate. Mr. MUSMANNO. Very well. Even under that interpretation I see no impediment, and certainly no constitutional obstacle, because very often an individual holds two offices under our form of government. This applies to the State as well as the Federal Government, and there is no reason why the Vice President can't address a communication to the President of the Senate who physically happens to be himself. Mr. FOLEY. You feel that that language doesn't need clarification? Mr. MUSMANNO. I don't think so. Mr. CHELF. Judge, we had a similar situation on the State level in Kentucky. Some few years ago, the then Governor of the State of Kentucky saw fit to resign as Governor, so that the then Acting Governor of Kentucky, or Lieutenant Governor, could become Gov ernor. He sat down and he wrote himself a letter, literally wrote himself a letter, "My dear Governor: I hereby tender my resignation," as of such and such a date, and signed it by his name, and when he did that he delivered it to himself from his left hand to his right and it became official. Then the Lieutenant Governor became Governor, was sworn into office, and promptly appointed my friend to the Senate of the United States; so it has been done-let's face it. Mr. MUSMANNO. And upheld constitutionally? Mr. CHELF. Yes; it survived court test. Mr. MUSMANNO. I might say in another department of government, Congressman Chelf, that a judge may sit as a law judge, and then sit as an equity judge, although it is the same judge speaking. He is acting as law judge, and then will say, from the bench, "I will now sit in equity" but it is always the same judge, the same knowledge, the same office, but he is sitting in two capacities. Mr. CHELF. Exactly. Down in Kentucky, we have the county judge who sits as county judge. Then he says, "I am now sitting as juvenile judge," and he changes, literally changes colors right at the same bench at the same time. Mr. MUSMANNO. I think it is extremely well that we question all these things as we go along, but I, myself, do not see any constitutional impediment or danger in Congressman Celler's proposed constitutional amendment. Mr. CHELF. Are there any additional questions by any of the members? We will adjourn until tomorrow morning at 10 o'clock, when the Honorable Lewis Powell, Jr., president of the American Bar Association, will testify at 10 o'clock, and the Honorable Herbert Brownell, former Attorney General of the United States. (Whereupon, at 3:28 p.m., the committee adjourned until 10 a.m., Wednesday, February 17, 1965.) 44-261-65--15 PRESIDENTIAL INABILITY WEDNESDAY, FEBRUARY 17, 1965 HOUSE OF REPRESENTATIVES, The committee met at 10 a.m., pursuant to adjournment, in room 346, Cannon Building, Hon. Emanuel Celler (chairman of the committee) presiding. Present: Representatives Celler, Feighan, Chelf, Rodino, Donohue, Hungate, Tenzer, Conyers, Grider, Jacobs, McCulloch, Poff, Cramer, Lindsay, MacGregor, Mathias, Hutchinson, and McClory. Also present: William R. Foley, general counsel; William H. Copenhaver, associate counsel. The CHAIRMAN. The committee will come to order for further consideration of House Joint Resolution 1 and similar bills relating to presidential disability. We have two distinguished witnesses this morning, the Honorable Lewis Powell, president of the American Bar Association, and the former distinguished Attorney General of the United States, the Honorable Herbert Brownell, who are both interested in the American Bar Association's activities. I want to say at the inception that I personally, and I am sure the members of the Judiciary Committee found the brochure and the various other publications of the American Bar Association very enlightening and very helpful in giving us an understanding of this very difficult subject on presidential disability. We are very happy this morning to welcome both of you gentlemen. We will first hear from President Powell of the American Bar Association. STATEMENT OF LEWIS F. POWELL, JR., PRESIDENT OF THE AMERICAN BAR ASSOCIATION Mr. POWELL. Mr. Chairman and members of the committee, first may I thank the committee on behalf of the American Bar Association for the courtesy that the committee and its chairman have extended to the American Bar Association, its officers, and its committee. We have had a very close relationship which we have cherished and appreciated very much. This morning, Mr. Chairman, I will review briefly the interest of the American Bar Association in this subject. I have a prepared statement which I think has been distributed to members of the committee. I will summarize that, in the interest of saving time. I will be followed by Mr. Brownell, who is chairman of the association committee on this subject. Mr. Brownell will deal with the merits of House Joint Resolution 1, and then we will both be available to try to respond to questions. I would like for the record to show that Mr. Edward Kuhn, who is president-elect of the American Bar Association, is also here today. He was a member of this committee last year. The interest and concern of the American Bar Association and, indeed, of this committee, go back many years. It finally became apparent to us 2 years ago that everyone was in agreement that there was a need to do something about the problem of presidential inability and vice-presidential vacancy. There was no argument as to the need. The difficulty was that constructive action had been frustrated, since the need first became evident in 1881, by diversity of opinion as to the proper solution. In the hope that possibly we could develop some sort of general consensus in this area, the American bar assembled a conference in Washington in January 1964 of persons who had demonstrated expertise in the field. The list of the conferees who took part in this conference is set forth on page 3 of my written statement. We met for 2 days and 1 night. We had a luncheon which was attended by Chairman Celler and other members of the Congress. I think it is fair to say that when we started out there were almost as many views as to how best to solve this problem as there were conferees. At the end of the second day, we agreed on a consensus containing a statement of principles which we thought would solve both of these problems. That consensus is set forth on pages 4 and 5 of my state ment. I should emphasize that the consensus is a statement of principles rather than a definitive draft of a constitutional amendment, and yet the principles in the consensus of the American Bar Association have been embodied in House Joint Resolution 1. Following that conference in January, this matter was presented to the house of delegates of the American Bar Association, which is the representative body of the association, as I am sure all of you gentlemen know. The house unanimously approved the consensus and also authorized the creation of a special committee, which is now chaired by Mr. Brownell. The purpose of the committee was to try to educate the public generally as to the need and to develop support for action on these two matters. As a part of that program, we held a national forum in Washington in May 1964. Congressman Celler and a number of other distinguished leaders participated. Former President Eisenhower addressed the gathering, which included representatives of leading national organizations representing a broad spectrum of thought. Also attending were representatives of the State bar associations from across the country. Former President Eisenhower's statement was quite a dramatic demonstration of the need for action. Following that forum, we went to State bars across the country, and as of today a majority of the State bar organizations have endorsed the |