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I should like, Mr. Attorney General, to direct your attention to section 3 of Senate Joint Resolution 1, which reads:

If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

I am wondering, Mr. Attorney General, if, in your opinion, there is merit to the proposal advanced at previous hearings that the President should be able to designate the Vice President as an Acting President for a specific limited time. This would cover such occasion as when the President might be en route to a foreign country, or otherwise outside of reliable communications? The basis for those proposals, of course, is that there are many decisions that conceivably might be very, very much needed in a very short period of time. If it were possible for the President, in looking forward to an absence from the country for 2 weeks or 3 weeks, or any other specific period of time, would it be well to enable him to arm the Vice President with the powers of Acting President? Have you any observations on that suggestion which was made by former Attorney General Brownell in previous hearings?

Attorney General KATZENBACH. I would say first, Senator, that I would have read section 3, or would read section 3 as really broad enough to cover that. I would agree with you that it is possible, although not likely, that a failure of communications media or a failure of one kind or another would make it impossible for the President to participate quickly enough in a decision if he were in the position you have indicated. I would think he could so provide in writing, even under the language of section 3 as it exists, that he could empower the Vice President to do that in writing in the event that such and such occurred. Perhaps that is not clear, but I would have thought that section 3 would have permitted the President to do that if he found it desirable to do so.

Senator BAYH. Let me intervene momentarily. I am certain the Senator from Nebraska remembers that the record shows that the intention of this legislation is to deal with any type of inability, whether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy or anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability under the terms that we are discussing.

Senator HRUSKA. Yes, that is true, Mr. Chairman, but that is covered under section 4. I fully agree with you that if something happened to the President, then there would be a declaration by the Vice President, substantiated by the majority of the heads of executive departments. But I am suggesting, what happens under section 3? Can the President make a 10-day designation of the Vice President as Acting President under the present language of section 3? And if we are going to say, oh, well, we talked about it in subcommittee, we talked about it in the report, we talked about it on the floor, and therefore, it is in the Constitution when this amendment is adopted, I submit to you that is a very loose way of writing constitutional law and one with which I would have very little, if any sympathy. It is section 3 to which I direct your attention, not section 4.

Senator BAYH. I just wanted to clarify, since we are talking about different kinds of disability, that we have all the freedom in the world

of putting this in the constitutional amendment if it is the opinion of the subcommittee, the committee, or of the Congress. However, I would point out that this again adds more detail, which the Senator himself is desirous, as am I, of keeping to a minimum.

Senator HRUSKA. Well, if the chairman's desire in that regard would be asserted in areas where it can be done much more fruitfully, then I would be persuaded by that argument. However, this is by way of limitation. It would not take many words. It is not a matter of procedure. It is simply an added authority to the President to act at a time when he would be absent. It would be for a definite, specific period, and its limitation would be self-executing. It seems to me that it would be something that should be very seriously considered by the committee for section 3.

Have you any further comment, Mr. Attorney General, on that particular point?

Attorney General KATZENBACH. No; I would certainly have no objection to the substance of what you are saying, that the President should be able to arrange for the Vice President to act for a limited period or in the event of a certain contingency, or something of that kind, which would be a self-executive provision. I would only reaffirm that I had thought that section 3 would be broad enough to do that. Perhaps it obviously could be clarified if that was the desire of the Congress to so clarify it.

Senator HRUSKA. Well, thank you, very much. That at least raises the point and gives us some basis for further discussion in executive

session.

Now, turning to section 5-and I want to say parenthetically that this Senator certainly finds himself in agreement with the preceding sections almost without exception. But turning to section 5, I would like to ask the Attorney General to elaborate a little bit more about "immediately," as used in the sentence which says, "Thereupon, Congress will immediately decide the issue." Now, it is all right to depend or to think that one depends upon the good faith of Congress and say: "Certainly they will not be obstructionists and certainly they will turn their attention to this very important issue at once," but it has been suggested by scholars in the field that there are such things as unlimited debate in the Senate. The only limitation is subject to Rule 22, about which we will hear more next month, and the month after that perhaps. I doubt very much that our feelings of sympathy in this matter would prevent someone from saying, "let us have hearings and expert testimony. Let us have a full discussion of this subject, so that the public may be informed."

Now, do you think that "immediately" will encompass that sort of thing?

Attorney General KATZENBACH. I would suppose that it was the intention here that "immediately" would not encompass that sort of thing, that the word was used to express the sense of urgency that you expressed at the outset.

I think it is extremely difficult to know what word you put in unless you put in a specific time limitation, which I think has some difficulties to it. As I have said earlier, you might quite legislatively want medical examinations. You might even legislatively want those medical examinations, those opinions, before the Congress, before either

House, before it acted. That could take a period, at least, of a few days.

I frankly, Senator, am at somewhat of a loss to say how it could be better expressed than the word "immediately," except to repeat the suggestion that I made, that you could get rid of such things as unlimited debate by taking care of that in a legislative fashion, by saying "for this particular point, there should be no debate or the debate should be limited, or the decision shall be made within such and such a period of time." I would be reluctant to put that in the Constitution, I believe, although not violently opposed to it.

But I can see reasons why perhaps that should be left to the judgment of Congress, exercising it at a time when the problem was not before it, providing in advance for this problem and providing for the most expeditious procedure.

Senator HRUSKA. You do suggest that it would be suitable for the Congress to legislate upon this point?

Attorney General KATZENBACH. I think Congress could legislate upon when a reference is made to it under this section of the Constitution, the following should take place, and if both Houses agree that this will take place in that way, it will.

Senator HRUSKA. I am sure the words you have just uttered will be greeted with great joy and anticipation by those who will seek to define legislatively "immediately" as meaning 90 days. Because if we are going to have a situation here where we will put a word in the Constitution and then say "It is competent for the Congress to define that word anyway it wants to." I say we are making a shambles out of the Constitution. I doubt very much the Supreme Court would be apt to say that "immediately" means 90 days or approve that sort of thing. Would you have any thoughts on that?

Attorney General KATZENBACH. I believe that in probability, the Supreme Court would accept any judgment Congress made on that. I find it difficult to find any context in which this would go before the Supreme Court, and I expect they would defer to any judgment the Congress made.

Senator HRUSKA. That is possible, and then it would be for the Congress to express, as you say, "immediately" means when we get good and ready. It may mean 90 days or 60.

You refer to medical examination. Medical examination, certainly, for some physical ailments would be easy to make. From my knowledge of medicine, however, when we get into psychiatric problems, such as mental or nervous disorders, that cannot be accomplished in a day or two. In fact, it may mean that there will be a passage of considerable time before a psychiatrist or a nervous and mental specialist can gather enough observation and data upon which to predicate a judgment and render an opinion.

That is the sort of thing we run into when we do two things. When we get into procedural details in the constitutional amendment, and when we violate the separation of powers. You say that it is difficult. to put in words and to put in language something that would be acceptable and workable. I have a solution for it and I shall propound upon it a little bit later. Briefly it is this: If that power is kept within the executive department where it belongs, and exercised by the heads of the executive departments, we immediately dispose of this time ele

ment in very satisfactory fashion. If those department heads will not go along with the Vice President and say that the President is not able to proceed, then the issue is solved and the President resumes his office. We have the matter resolved from the standpoint of time.

Would you have any comment on that, Mr. Attorney General? Attorney General KATZENBACH. The first point, it seems to me that about all that you can do in a constitutional amendment is to put in such a word as "immediately." If you leave that out entirely and indicate no sense of urgency about this, then it seems to me that whatever would be provided by legislation would take somewhat longer.

On the second point, it seems to me that those who feel that Congress should act on this are adopting a philosophy that says that the elected representatives of the people would better give the sense of the people, at least in confirming that executive decision. And it would prevent at least the possibility, although we have never faced it in our history at all, the possibility of the coup d'e tat which certainly other countries have experienced from time to time; the possibility of deposing a President when the Vice President can, through one way or another, wean away a majority of the Cabinet from supporting the President.

So I think you accentuate the problem that the chairman raised at the outset of simply an unpopular President and a Vice President who seeks to assume the office and can edge the support of the majority of the Cabinet.

On the separation of powers point, Senator, I don't believe that this procedure amounts to a violation of that principle as I understand it. It is already provided in the Constitution that Congress shall decide this procedure in the event of an inability of both the President and the Vice President, and as I said at the outset, some scholars have thought that that language would permit the solution of this problem before us now simply by legislation, since they do not read the language in a way, a conservative way, really, in which I, and I think a majority of scholars, have read it. So it is already provided that Congress get into the picture of selection processes in the Constitution.

Senator HRUSKA. Mr. Attorney General, if you will pardon the interruption, that is a different situation, is it not? That is a situation where a policy question is to be decided. There is a vacancy and the place to decide that question is in a body composed of elected representatives. In the case of disability, the situation is different. There the policy has been determined already. The policy was determined that Mr. X was elected President. That is the decisive action taken by the electorate of this country. The question is only as to fact: Is he capable of carrying on his duties?

Now, that is not a policy question. It is a factual question. I submit that the contingency to which we refer is not provided for in the Constitution and that there is a violation of the separation of powers.

Now, in the situation where there would be a coup d'etat by manipulation of the Cabinet, that is a detail that can be taken care of by legislation under Senate Joint Resolution 6, because we have provision that the Congress may legislate to see that this decision is made within the executive branch. If it is desirable to say the Vice President may not fire or discharge the members of the President's Cabinet, that he

must work with them or such of them as are still alive and capable of proceeding, Congress may do that.

It does seem to me that there still is a violation of that separation of powers doctrine when we get into this particular thing. It puts one of the branches of Government in a dominant position over the other. That, of course, is the essence of the violation of that doctrine.

Attorney General KATZENBACH. I do not quite understand which branch is dominant over the other, sir.

Senator HRUSKA. The Congress would be in a dominant position over the President when they would say, "You are not capable of carrying on the duties of President."

Attorney General KATZENBACH. I could take mild issue with that, if I could, Senator. As I read section 5, that is not possible. All that Congress can do is to affirm a decision that has already been made in the executive branch, because the majority of the Cabinet have already supported the Vice President. So that the only participation of Congress in this is to say, is really to protect, I suppose, against a coup d'etat here, to say, "These fellows have tried to take over and we do not think they ought to." So I do not think they are dominant.

Congress cannot initiate. Congress cannot get rid of the President here, except on its own process already contained in the Constitution for impeachment.

Senator HRUSKA. If they agree with the Vice President, they are disposing of a President.

Attorney General KATZENBACH. They have to agree with not only the Vice President, but a majority of the Cabinet.

Senator HRUSKA. And two-thirds of their Members. If they disagree with the Vice President, they are overturning that consensus, are they not?

Attorney General KATZENBACH. Well, you have to have the consensus in the executive branch-at least a consensus of this kind, before it even gets to Congress. Congress cannot even look at the problem unless the majority of the Cabinet supports the Vice President.

Senator BAYH. May I enter the colloquy long enough perhaps to pose a question for the consideration of the Senator from Nebraska as well as the Attorney General? What commingling powers are we giving here that are not already provided, as the Attorney General mentions, in the impeachment proceedings? It is the same type of determination that has to be made-either the man is capable of performing or he is not. It seems to me of little consequence whether you he is incapable of performing because he is ill or whether you say he is incapable of performing because he has done something immoral or transgressed the laws of the country. It still is the same type of determination that the Congress has to make.

say

Senator HRUSKA. If the chairman would permit my reply to that, I would respectfully differ from him, because to judge a man guilty of acts which would be determined as treasonous or against public policy to the extent that he shall no longer serve as President, that is a policy question. It is semi- or quasi-judicial, to be sure, but that is a political and a policy question.

The fact of insufficient mental or physical powers office is not a policy question; that is a factual question. policy in nature should be decided by the Congress.

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