For example, the problem of getting a majority vote or two-thirds vote. Is there specific precedent? Would more detail be needed in writing the amendment? Would this be the normal interpretation or must we put additional specifics in to get the right interpretation?

Attorney General KATZENBACH. I think the interpretation I expressed would be the normal interpretation, and I would recommend that if that is the interpretation intended, which I believe it is, that that be made clear in any report on the Constitution or any debate on it. Because it would be what would normally be interpreted and it would help to have it simply made clear in that form.

Senator BAYH. In the report?

Attorney General KATZENBACH. I would think that would be. perfectly sufficient.

Senator BAYH. In our opinions, it was, and I am glad to see you support this contention.

Now, do you feel that the provision for a two-way waiting period is sufficiently clear, or do you feel that explaining the intent in the report would be sufficient and would avoid the necessity for additional language?

Attorney General KATZENBACH. I would think it probably would be sufficient simply to clarify that you are only dealing with the situation of the disagreement between the two. That is not clear from the text of Senate Joint Resolution 1, because you go right into the disagreement situation. All that is said, really, is section 3 and it says if the President does declare it in writing, the Vice President shall assume the powers and duties of the office. It does not go on to say until such time as the President declares that his inability has ceased.

I think that the practice that has grown up on the agreements that I have mentioned in my testimony is useful practice and that that might be explicitly confirmed. I think it could be done either in the text of Senate Joint Resolution 1 or it could certainly be done in the report and the legislative history, either way. I do not believe that particular point is a controversial one. I think that people would agree that if the President determines his inability has ceased and the Vice President agrees with that, there should be an immediate resumption by the President of his powers as President.

Senator BAYH. The real difficulty would arise should we have a possible disagreement between the Vice President and the majority of the Cabinet on the one hand and the President on the other.

Attorney General KATZENBACH. That is right. It might be useful, Mr. Chairman, simply to reaffirm the other practice, either in one of the forms or the other, and then get on to what the difficult problem is. In the anxiety to solve the difficult problem, we should not leave the easy problem in doubt.

Senator BAYH. In making this difficult problem easier to solve, do you feel that a time limitation on congressional action as has been suggested in some legislation and by some scholars would avoid delay? Would we have a better solution if we put a 10- or 30-day or 2-month limitation on Congress in which it would have to act?

I notice you said you thought the powers and duties of the Presidency would revert to the Chief Executive if Congress failed to act immediately.

Attorney General KATZENBACH. I would be reluctant to put a firm time in a constitutional provision. I can conceive of circumstances where it ought to be done within 24 or 48 hours. I can conceive of other circumstances where Congress might wish to have the views of medical experts, for example, and this might take a few more days. A good deal of the problems that could occur under section 5 could, I think, be resolved by Congress itself in promptly providing what it was going to do in the event of this contingency by its own rules. Senator BAYH. By rules or by statute?

Attorney General KATZENBACH. It would be just effecting-or by general statute if it were possible, just simply to assure that they have an interpretation of the word "immediate" and that they are bound by this. Because under the provisions of section 5, you have a Vice President who is acting as President and a President who is reasserting his ability to act.

Now, normally, it would always be my predisposition to protect the Presidency from any form of usurpation or any form of politics. Our Constitution provided for a 4-year term for a President and I think we have an obligation-I would feel it personally, certainly, to protect that. Yet you have here in section 5 a situation where the Vice President presumably is continuing to act until such time as Congress acts. Congress is enjoined to act immediately. It seemed to me desirable to give some assurance that Congress would act immediately and you would not have that situation of his continuing to act. And I think even beyond that, argument could be made, Mr. Chairman, that the President simply would resume his office if Congress failed to act immediately. But you would then create a debate: Has the Congress acted soon enough or not, who is exercising the powers and duties? If the President were to say, this has gone now before the Congress, They have had it for a days, they have not voted upon it, they have not acted immediately and therefore I automatically resume powers and duties-it is subject to that possible construction and I think intent with respect to that ought to be clarified.

Senator BAYH. Is there any way we can get around this possibility? What we are trying to prescribe is for continuity-someone who would always have charge. And if the Vice President is prohibited from acting unless he gets a majority of the Cabinet, which, of course, is appointed by the President he seeks to replace, would this be a sufficient safeguard to the President? And if the Vice President could not have two-thirds of the Congress to support him in addition to the Cabinet, the President should resume

Attorney General KATZENBACH. I think it certainly could be done. by rules of the House or legislation that in this event, Congress would reconvene, that they would decide this, there would be, for example, the possibility of limitation on debate. There has to be a vote on this. A certain period of time, I think, would serve to clarify the problem of what "immediately" means and still leave some flexibility to take care of the sorts of situations that I discussed.

I assume also you would want to clarify by way or intent, perhaps, Mr. Chairman, what you have just said, that this is the majority of the Cabinet that the President has nominated. Conceivably, a Vice President exercising the duties could remove all Members of the Cabinet if Congress is not in session and he could then exercise the powers and duties to give recess appointments to his own people.

I think the intent of this, if I understand it correctly, is that of the Congress that was sitting and the Cabinet that was sitting at the time the inability existed.

Senator BAYH. We would not want to have any purge by the Vice President during a President's inability of the ill President's Cabinet. By the same token, we would not want it so that if one of the members of the Cabinet died, he could not be replaced.

Attorney General KATZENBACH. Congress could, of course, by law provide for that problem.

Senator BAYH. Let me ask one other question and I am sure my colleagues have some of their own.

You referred to the possibility, the necessity of protecting any President from usurpation of his office. The President, by the very nature of his office, must deal with very difficult problems, very controversial problems. Have we given him sufficient protection so that he will be able to stand up and make unpopular decisions that he feels are in the best interest of the country?

Attorney General KATZENBACH. I think this is a responsible resolution of that problem here, if, in particular, it is further clarified in the rules so that there must be quick action with respect to this so that immediately he is given hands and feet in an appropriate legislative resolution form.

There are, of course, two ways of dealing with section 5 and I am sure that the committee has considered both. One is to have the Presidentone is the one that is proposed here, where the Vice President continues to act and the Cabinet supports him until, in effect, Congress declines to support him by two-thirds. The other solution would be to have the, which I am sure you have considered at length, would be to have the President resume the office merely upon his declaration unless a majority of the Cabinet supported the Vice President and two-thirds of each House supported him. When that had finished occurring, the Vice President would resume. Those are the two alternative ways of handling it.

Now, I suppose the two problems that one is dealing with are the risk to the country of a period, however short, where a President who really is unable, nonetheless declares ability, and the problem, how quick the congressional action could be gotten in that situation and the risk to the country in that period of time, as against the problem that you raised, Mr. Chairman, of the usurper, which is the traditional fear of Vice Presidents in exercising their power, that they would be so regarded.

Senator BAYH. We have two things we are striving toward.

Attorney General KATZENBACH. We have to balance those two considerations.

Senator BAYH. One is to make sure that there was not, even for a short period of time, a disabled President acting as President; and two, in the transfer of the power from the Vice President back to the President, even under the most controversial situations, to keep the procedure as simple as possible.

Even if it would mean the Vice President would act for an extra month, to have it be an original transfer from the President to the Vice President and then back to the President, if Congress should so decide is preferable to a situation where it is from the President to

the Vice President and then the President makes the declaration and the power is his again, then the Vice President disputes this and the Congress moves in and it goes back to the Vice President, which would be very disconcerting. Not only to this country but to others, who actually do react to the shocks.

We thought that this way, we have only a minimum of two transfers, one from the President to the Vice President and then, when Congress refused to support his stand, immediately back to the President.

Mr. Minority Leader, as a constitutional expert, I am sure you will have some questions to ask.

Senator DIRKSEN. Thank you, Mr. Chairman. I will defer to my colleagues because when the clock moves up, I must get over to the floor. I did have one question with respect to section 1, where the President shall select a Vice President on confirmation by a majority vote of the Congress. I wonder if it would not be advisable to think a little about a limitation on that choice and to limit it to Members of the House and Senate and to the heads of the departments of Government? Then if the President says he is ill and the Vice President becomes President, he cannot select just anybody to become Vice President.

Then secondly is the question whether it ought to be done by a majority vote or a two-thirds vote. We rely on two-thirds in the most critical matters such as treaties and vetoes and so forth and this is a highly important one when it comes to the selection of a Vice President, because he may even possibly succeed the President because of disability or death, resignation or retirement. Then you have this question whether or not the President could actually select a Vice President from his own State.

Now, the electors, of course, as we modified it, cannot select two people from the same State. That was amendment No. 12:

The electors shall meet in their respective States and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves.

Now, I would think there is an implication there that they would not want to have both come from the same State. Yet in the matter that is before us there is no such interdiction and I would gather that if this were approved in that fashion, it would make it possible for anybody who came from the same State, if he felt it was good, to get confirmation from the Congress. I just advance that and I think it can be pursued, Mr. Chairman, a little later.

Senator BAYH. It is certainly a very specific question, Senator. I am sorry that the minority leader has to leave quickly.

Mr. Attorney General, do you care to give your opinion on those questions by the minority leader?

Attorney General KATZENBACH. I would think if the choice of the President were so limited, it would still be a very broad choice. But I do not think I am persuaded that it should be limited to the Cabinet or to Members of the House or Senate. I think customarily, throughout our history, at least the presidential candidate of one or the other party has normally had free hand to choose who his running mate will be. That free hand may be governed by a variety of considerations within the party, but his choice within those is normally respected. I would see no reason not to recognize that practice here.

I would be reluctant also to support a two-thirds vote in the House and Senate. I think by and large, what the President under those circumstances would be counting on would be the support of his own party within the Senate and the House, and I think it would be unfortunate for the country if the opposition party should be able to exercise a very considerable power in determining who the President wished as his Vice President. Normally, the opposition party does not. It is the people in an election who determine that. There would be a possibility, I would think, in those circumstances, of an undesirable delay in filling the office. Suppose that the President were to submit a name and failed to muster the two-thirds. I could imagine a President at that point, rather than submitting another name, saying "That is my choice for the job and that is whom I am going to leave there and there will not be any Vice President unless this man is selected."

Senator BAYH. Of course, if limitations were put on, this would immediately preclude one source from whence many of our Presidents and Vice Presidents come, the Governors of States.

Attorney General KATZENBACH. I would think it would be in the interest of ratification not to eliminate the Governors.

Senator BAYH. That is a very good point.

The Senator from Nebraska has been a longtime student of the problem and active member of the full committee. I am certain he has several questions he would like to ask.

Senator HRUSKA. Before I do ask any questions or make any observations, I want to join our chairman in extending the congratulations to our present witness for the preferment that was visited upon him yesterday. In due time, we shall officially consider that nomination, but I can predict in advance, Mr. Chairman, that there is every indication that the reception on that occasion will be very, very favorable and certainly a very receptive one.

Attorney General KATZENBACH. Thank you, very much, Senator. Senator HRUSKA. Before I do ask questions, I want to make some comments and I shall submit a statement later in greater detail, Mr. Chairman.

There are two principles in which the Senator from Nebraska is very interested in regard to the amendment that we are considering. One of them concerns the idea that the Attorney General has already touched upon, namely, not to clutter the Constitution with procedure detail. That is a sound constitutional principle. It has, in the main, been followed and unless there is some very pressing and persuasive reason why it should be abandoned at this time, it is my purpose and intention to urge that it be abided by.

The second principle is separation of powers. In section 5 of Senate Joint Resolution 1 which confers upon the Congress the matter of approval of the Vice President's contention that the President is not able to resume duties or the President's contention that he is able to resume duties, we have a transgression and a violation of that doctrine of separation of powers. There are several objections to this section on that basis, some which I shall mention later and some which I would like to propound to our witness.