entirely possible that in the context of tensions in office today this same sort of debility could attack the President, so I would like to pose a double-barreled question, the first half of which is if there were such a long period of mental debility, such as Mr. Forrestal suffered, in which some of his colleagues observed certain eccentricities which others did not, would there be a danger-in your judgment-of a Cabinet intrigue, which could be dangerous to the overall stability of the Government, in view of the point made by the gentleman from Virginia that any member of the Cabinet has the opportunity under this provision to initiate action?

Then I would like to put to you the second half of the question, that if by providing in this single amendment for the fact that a President nominates his official heir and successor who has the power to initiate you give that heir and successor powers of deposition of the man who is nominating him-are you not creating some danger there that the best possible man for the job may not be chosen?

These I put to you together because I think you have to approach them in the same context.

Mr. BROWNELL. Well, as to the first point, it is theoretically possible for a Cabinet member to be a mischief-maker, a Machiavelli, a plain overambitious office seeker

Mr. MATHIAS. That is not unknown in our history.

Mr. BROWNELL (continuing). Ruthless and unprincipled, but I think it would be stretching things quite a bit to think that a majority of the Cabinet would be in that category, and it takes a majority plus the Vice President to act under the section that we are talking about.

Mr. MATHIAS. If a single member were to initiate this kind of action and could persuade the Vice President that this was his golden opportunity, and they got one or two others to go along, it might not be a majority, but you could develop a cabal that would be very dangerous to the stability of the Government, it seems to me.

Mr. BROWNELL. Yes, I think you could say a columnist might start it, a television commentator might start it, a Governor of a State might start it, a lobbyist might start it-there are all sorts of ways in which the matter could come under public discussion, but the protective provision is that there must be a majority of the members of the Cabinet and the Vice President under the white heat of intense publicity before any action, as distinguished from discussion, can be taken.

Mr. MATHIAS. Of course, it is true that anyone could start it, but the fact is that this amendment gives official sanction to a group of people who are defined as the heads of executive departments, which not only gives sanction but actually places them under some responsibility to start it, and this would give me some concern.

Mr. BROWNELL. As to the other point, now, that was whether we might always expect the man chosen or nominated by the President to be the best man available

Mr. MATHIAS. This is a question where I think you have to look into the presidential mind, and here you have the analogy made that we give the President this power because he had it when he was nominated by his party, and because he virtually had the choice when he was sitting as presidential nominee and being consulted as to his wishes before the convention nominates the Vice President. Of course, there you have a certain accountability of his action, because he has to im

mediately go before the country and sustain his choice of Vice President, and he would naturally seek to complement his own strength by a strong Vice President.

But in this amendment we are saying that the President could not only choose a man who in the event of natural succession becomes his heir, but who by virtue of this machinery is charged with the responsibility actually to oust the President under certain circumstances, and in the case of mental disability-such as the Forrestal illnesshe would oust him under conditions which might require very subjective decisions, and in which medical evidence might not be clear. Now, would not a President be somewhat influenced by this possibility under the circumstances that could exist?

Mr. BROWNELL. I think our Government has come to a position in modern times where it is almost essential for a President who wants to go down in history as a great President to have a Vice President who is able, public spirited, and an effective public servant, the job has become big. In each administration, more and more authority, power, and duties seem to be placed upon the Vice President, so that I think to counteract the points which you raised-and reasonably raised-you have a very strong self-interest on the part of the President to select the best possible man, and we must keep that in mind in weighing and trying to figure all the motives that would go into such a choice.

We have what I think is the sensible protective measure in that Congress, in case an irresponsible nomination is made, can block it.

Mr. MATHIAS. I particularly appreciate the last statement you made. I think it is a contribution to the political thinking of the country and should stand as a landmark or guide for action of people who might be placed in this position. I sincerely hope that the gentleman is right and I am wrong in the judgment of history.

Mr. CHELF. Mr. Hutchinson?

Mr. HUTCHINSON. I have only a single question.

Mr. Brownell, is there any legal ambiguity in this phrase "heads of the executive departments," and should not the Congress be directed or authorized by statute to indicate-for instance, by Secretary of State, Secretary of the Treasury, and so on-who is intended?

Mr. BROWNELL. My experience as Attorney General leads me to think that this is sufficiently clear to avoid any real risk.

I notice that the companion Senate amendment has been changed to read "principal officers of the executive departments." I see no objection to the use of that language, because either one of these is quite clear when you take all of the bodies of Federal statutes into consideration as to who is meant.

Mr. HUTCHINSON. The modern Cabinet popularly is thought of as consisting of such persons, perhaps, as the Ambassador to the United Nations, and some others in addition to the heads of the old line executive departments, but this language is intended to restrict this function to those executive heads, as such, and not the entire Cabinet in its popular sense?

Mr. BROWNELL. That is correct. It is not intended to include those who, let's say, are given Cabinet status although they are not technically members of the Cabinet.

Mr. HUTCHINSON. Thank you.

Mr. CHELF. Mr. McClory?

Mr. McCLORY. I want to add, Mr. Brownell, the fact that you have given a most convincing and helpful statement. You have answered most of the questions I had for you. I would like to add this one question, however, because it has arisen here both with respect to the earlier recommendations of the American Bar Association, and a question which is now arising in the other body as to the form of the amendment, and I would like your opinion as to whether or not-if the provisions for the declaration for the commencement and termination of the period of disability were embodied in the Statute, with the constitutional provision merely authorizing the Congress to act in that way-there is any constitutional question or objection to the office of the Presidency, or the exercise of powers by whoever happens to be in authority at that time. Is there any constitutional question or objection that you have to the alternative form?

Mr. BROWNELL. I myself believe that the experts in the field largely have come to the conclusion that the alternative proposal to leave everything to a statute would open the door to a plan which did not protect properly the constitutional principle of separation of powers, and that in the original Constitutional Convention and throughout our history that separation of powers has been deemed so important that it belongs in the Constitution.

Mr. CHELF. Mr. Hungate?

Mr. HUNGATE. General Brownell, I direct your attention to section. 5 dealing with the question where presidential disability has been established and he seeks to return to the duties of his office.

As I understand this, the Vice President and the majority of the Cabinet might believe that he was still incompetent, and it could be that 65 percent of the Congress would believe he was incompetent and yet he would, with the concurrence of 35 percent of the body, resume his office.

I am just wondering about the use of the two-thirds rather than the majority. I notice in House Joint Resolution 139, which has been discussed before, Congress is given some initiative. It is to be determined in that case by majority vote. I wondered what your thoughts were on the distinction between the two-thirds requirement as opposed to a majority requirement.

Mr. BROWNELL. I think the reasoning back of the two-thirds was for the legislative branch to upset the action of the executive branch under these circumstances there should be very definite feeling in the Congress that they should move into the situation. I think that is the basic reasoning behind the two-thirds rather than the majority. Mr. HUNGATE. Thank you very much.

Mr. CHELF. Mr. Tenzer?

Mr. TENZER. Would it be your view that the suggested instances of irresponsible action and intrigue would fit into that area of 10 percent that we would be unable to cover in a constitutional amendment, and that perhaps these situations may never arise that call for immediate action?

Mr. BROWNELL. Yes.

Mr. TENZER. I also would like to congratulate the distinguished member of the bar from New York and the distinguished former At

torney General for the concise manner in which the testimony was rendered, particularly the clarity of his answers, and his patience as well.

Mr. BROWNELL. Thank you very much.

Mr. CHELF. Mr. Jacobs?

Mr. JACOBS. I would simply like to thank Mr. Brownell for helping us today.

Mr. CHELF. We will adjourn

Mr. BROWNELL. May I say, before you adjourn, I am delighted to see you again. You were my first congressional conferee when I came to Washington, and I remember very well the tremendous help that you gave.

Mr. CHELF. I look upon it with a great deal of pleasure, and it has certainly been to my gain-I may say that. Our friendship, and the fact you have come here today proves to me once again-if there was any doubt, and certainly there has been none-that you are a great American in my book. You made an outstanding Attorney General.

I want to apologize profusely for not having been here when you began your statement, but I have hurriedly read through it, and on page 3 I notice the four musts that you recommend there.

1. The need for prompt action is overwhelming and recent tragic events have made it clear that failure to act would be recklessly gambling with the stability of our Government.

I want to say I could never possibly agree with you more than that. I think that is the crux of the whole thing, truly I do.

Mr. BROWNELL. I do, too.

Mr. CHELF. There is no doubt about it. Even if we act and do something that is wrong, we still ought to try; we ought to make an attempt. Later we can modify, change or amend, or correct it. I think only time will prove just which method would be the right one and maybe do the job but, overall, I want to agree with you heartily and thank you profusely for coming. It is always a pleasure to see you, and God bless

you.

Mr. BROWNELL. Thank you.

Mr. CHELF. We will recess until 2 o'clock.

(Whereupon, at 12:25 p.m., the committee recessed to reconvene at 2 p.m.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order.

Is there anyone else here beside Mr. Horton?

Mr. HORTON. Mr. Robison is here, too.

The CHAIRMAN. We will hear you, Mr. Robison.

STATEMENT OF HON. HOWARD W. ROBISON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. ROBISON. Mr. Chairman, and members of the committee, I am pleased at the opportunity to be here before your committee in order to express my strong support of your current effort to find an acceptable and workable solution to the vexing problem of presidential inability.

During my 7 years of service in the Congress, the lack of any formal procedure for dealing with such an emergency situation has become of increasing concern to me, and for the past three Congresses, I have introduced legislation to deal with the problem.

As you are aware, the Congress has failed to act, to date, in dealing with this problem because of a continuing argument over two points. First, whether article II, section 1 of the Constitution now gives the Congress the authority to deal with the problem by simple statute or whether a constitutional amendment is needed.

Secondly, whether or not a constitutional amendment is needed, what procedure or means should the Congress provide for determining presidential inability and its end of duration. Therefore, I should like to speak to the nature of the action I believe we should take.

First, to allay any possibility of challenge or illegality, I believe a constitutional amendment should be enacted.

I believe, however, and favor strongly, that such an amendment must be simple and clear in its intent and should not include the mechanism for determining presidential inability. Such an amendment is House Joint Resolution 294 which I have introduced in this Congress and which provides:

In case of the removal of the President from office, or his death or resignation, the said office shall devolve on the Vice President until the inability be removed. The Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then be President, or in the case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

The language of this amendment has been approved by the American Bar Association and many other interested organizations and, in addition, it is substantially the language which the then-Deputy Attorney General, Mr. Katzenbach, strongly supported in hearings before the Senate Judiciary Committee in 1963 and 1964.

The CHAIRMAN. Of course, he has changed his point of view now. Mr. ROBISON. Well, I understand he may have, but he certainly made a strong statement at that time pointing out to us the lack of wisdom in loading the Constitution down-and I am quoting him, now-"by writing detailed procedural and substantive provisions into it."

The CHAIRMAN. Well, he takes the position now that from the practical standpoint, in view of the fact there is such an overwhelming consensus for a constitutional amendment, he feels he has to bow down to the inevitable and accept the constitutional amendment idea.

Mr. ROBISON. I favor the constitutional amendment, too, Mr. Chairman. I want to make clear that I do, but I think the procedures and methods to determine inability and so forth, should be prescribed by a separate statute, and I would like to speak to that point now, if I

may.

As I said, I think that the specifics of the method for determining the inability and its termination should not be "frozen" into the Constitution thus making them extremely hard to alter if, in the future, we find that a constitutionally provided method is faulty.