Senator BAYH. Reasonable debate?

Senator HRUSKA. How much debate?

Attorney General KATZENBACH. I cannot answer the question how much debate would be reasonable. I would think that on this kind of an issue, the amount of debate that would be required would be really very, very limited in order to make a judgment.

Senator HRUSKA. That is what we often think here, Mr. Attorney General. But there are some people who do not agree with us on occasion.

Attorney General KATZENBACH. I have had experience with that, Senator. I might go on to add that if you, sir, are correct in saying this is largely a factual issue, then that would be an argument that would tend to cut down debate, since my experience has been that it is the policy issues which usually have extended long debate in the Senate and House.

Senator BAYH. If this terminates our questioning of the Attorney General, let us thank you very much for not only making your views known here, but for subjecting yourself to this cross-examination, which I feel has been very helpful, and I want to thank you personally for it.

Senator HRUSKA. I join in the thanks, sir.

Attorney General KATZENBACH. Thank you sir, I appreciate the opportunity to be heard.

Senator BAYH. In the effort to enable the Attorney General to resume his normal schedule, I did not ask my colleagues on the subcommittee if they had a statement that they would like to make. The able Senator from Hawaii who has long labored on this matter as a member of the subcommittee has some remarks I believe.

STATEMENT OF HON. HIRAM L. FONG, A U.S. SENATOR FROM THE STATE OF HAWAII

Senator FONG. Mr. Chairman, I wish to make a brief statement in support of Senate Joint Resolution 1 proposing a constitutional amendment on the related problems of Presidential disability and VicePresidential vacancies.

Two years ago, the tragic assassination of President Kennedy pointed up once again the urgent need to resolve these two critical gaps in the U.S. Constitution.

First, the Constitution does not say anything about what should be done when there is no Vice President. No one in America today doubts that the Vice-Presidency is an office of paramount importance. The Vice President of the United States today carries very vital functions of our Government. Besides his many duties, he is the only man who is only a heartbeat away from the world's most powerful office. Yet, on 17 different occasions in our history the Nation has been without a Vice President.

The security of our Nation demands that the office of the Vice President should never be left vacant for long, such as it was between November 22, 1963, and January 20, 1965.

Second, the Constitution does not say anything about what should be done when the President becomes disabled, how and who determines his disability, when the disability starts, when it ends, who deter

mines his fitness to resume his office, and who should take over during the period of disability.

In short, there is no orderly constitutional procedure to decide how the awesome and urgent responsibility of the Presidency should be carried on.

Third, the Constitution also is unclear as to whether the Vice President would become President, or whether he becomes only the Acting President, if the President is unable to carry out the duties of his office.

Mr. Chairman, as a member of the subcommittee, I have studied very carefully all the various proposals submitted by other Senators during the 88th Congress and in this current session of the 89th Congress. I have considered the testimony submitted to the subcommittee in previous hearings, including those of the distinguished experts who have testified. I have read the data collected and have read the research done by the subcommittee's staff.

I believe that any measure to resolve these very complex and perplexing problems must satisfy at least four requirements:

1. It must have the highest and most authoritative legal sanction. It must be embodied in an amendment to the Constitution. 2. It must assure prompt action when required to meet a national crisis.

3. It must conform to the constitutional principle of separation of powers.

4. It must provide safeguards against usurpation of power. I believe Senate Joint Resolution 1 best meets each of these requirements.

Senate Joint Resolution 1 deals with each of the problems of vicepresidential vacancy and presidential inability by constitutional amendment rather than by statute.

This proposal provides for the selection of a new Vice President when the former Vice President succeeds to the Presidency within 30 days of his accession to office; the selection is to be made by the President, upon confirmation by a majority of both Houses of Congress present and voting.

This proposal makes clear that when the President is disabled, the Vice President becomes Acting President for the period of disability. It provides that the President may himself declare his inability and that if he does not, the declaration may be made by the Vice President with written concurrence of a majority of the Cabinet.

The President may declare his own fitness to resume his powers and duties, but if his ability is questioned, the Cabinet by majority vote and the Congress by a two-thirds vote on a concurrent resolution resolve the dispute.

These provisions of Senate Joint Resolution 1 not only achieve the goals I outlined earlier, but they are also in consonance with the most valued principles established by our Founding Fathers in the Constitution.

They observe the principle of the separation of powers in our Government. They effectively maintain the delicate balance of powers among the three branches of our Government. Most important of all, they insure that our Nation's sovereignty is preserved in

the hands of the people through their elected representatives in the national legislature.

Mr. Chairman, this is the first time since 1956, when a full-scale congressional study of the problems was conducted, that wide agreement has been reached on these enormously complex constitutional problems.

Last September a measure similar to Senate Joint Resolution 1 was passed by the Senate by the overwhelming vote of 65 to 0. It was sent to the House, but Congress adjourned before any further action could be taken.

Last January, at the call of the American Bar Association, a dozen of the Nation's leading legal authorities meeting in Washington came up with a consensus. This consensus, subsequently endorsed by the ABA house of delegates, is essentially embodied in the provisions of Senate Joint Resolution 1.

Yesterday President Johnson heartily endorsed this proposal. And earlier this month, the Research and Policy Committee of the Committee for Economic Development released an able study of these questions. Its recommendations closely parallel the provisions of Senate Joint Resolution 1.

I am most delighted and pleased to cosponsor this proposal with the distinguished chairman of this subcommittee as sponsor, and I will commend it highly to the Senate as a meritorious measure that should be enacted promptly into law.

Senator BAYH. The Senator from Nebraska might have a statement he would like to make or remarks he may care to make other than the fine questions he has asked of the Attorney General. STATEMENT OF HON. ROMAN L. HRUSKA, A U.S. SENATOR FROM THE STATE OF NEBRASKA

Senator HRUSKA. Mr. Chairman, agreements devised by the President and his Vice President in past administrations to cope with an inability crisis are not satisfactory solutions.

It is abundantly clear that, rather than continue these informal agreements, the only sound approach is the adoption of a constitutional amendment. This amendment would distinguish the inability situation from the three other contingencies of permanent nature, death, resignation, and removal from office, and would recognize that, in the first instance, the Vice President becomes Acting President only.

At this point, we encounter the first major difference of opinion. Some would advocate spelling out the procedure for determining inability within the language of the proposed amendment. I disagree. The logic of locking into the Constitution those procedures deemed appropriate today but which, in the light of greater knowledge and experience may be found wanting tomorrow, escapes me. The preferred course would be for the amendment to authorize the Congress to establish an appropriate procedure by law. This practice parallels the situation of presidential succession, wherein the power is delineated by the Constitution but the detail is left for later determination.

The purpose of the cosponsors of Senate Joint Resolution 6 is to add one fundamental limitation to the process. Language which simply enables the Congress to prescribe by law the method by which the commencement and termination of any inability shall be determined is open to serious criticism and contains dangerous pitfalls. Without any limitation upon the method, the Congress might adopt a procedure that would violate constitutional doctrines of the most essential character. Throughout our history, these principles have been proven wise and of inestimable importance.

I refer primarily to the doctrine of separation of powers. The maintenance of the three distinct branches of Government, coequal in character, has long been accepted as one of the most important safeguards for the preservation of the Republic. However, one does not have to look long to find instances in which this doctrine is threatened. Some of the pending proposals on presidential inability illustrate how seriously the doctrine can be impaired if care is not exercised.

This is the rationale behind the limitation contained in Senate Joint Resolution 6 which provides that the executive branch shall determine the presence of and termination of the inability of the President. It is essential that the method ultimately selected shall have the executive branch determine the commencement and termination of any inability. Stated another way, Congress must be prohibited from prescribing a method which would involve either the judicial or the legislative branch of the Government. This is a significant limitation, as those who propose it will acknowledge. But it is an indispensable prohibition if our efforts to resolve the problem of presidential inability are to be successful.

The determination of presidential inability and its termination is obviously a factual matter. No policy is involved. The issue is simply whether a specific individual with certain physical, mental, or emotional impairments possesses the ability to continue as the Chief Executive or whether his infirmity is so serious and severe as to render him incapable of executing the duties of his office.

To inject Congress into the factual question of inability would be to create a secondary impeachment procedure in which the conduct of the President would not be the test. Such a determination would be fraught with uncertainties. It would require no specific charge. It would not define the proof which is required. It would be a determination of facts with no guidelines against which to measure them. The impeachment trial of President Andrew Johnson affords a clear illustration of the dangers presented when Congress is allowed to perform a judicial function. The intrigue and interplay within the Congress during the impeachment trial serves as a warning of clear and present dangers which exist when Congress is called upon to consider where to place the mantle of the presidential powers.

An additional compelling argument for restricting this authority to the executive branch is that this determination must be made with a minimum of delay. In an age of advanced weapons and an accelerated pace in national and international affairs, the luxury of weeks or even days to assemble a quorum prior to reaching a decision cannot be afforded. The executive branch is clearly best equipped to respond promptly as well as effectively in the face of such a crisis.

Obviously, such a decision must rest on the relevant and reliable facts regarding the President's physical or mental faculties. It must be divorced from any thoughts of political advantage, personal prejudice, or other extraneous factors. Those possessing such firsthand information about the Chief Executive, or most accessible to it on a personal basis, are found within the executive branch and not elsewhere.

We must be mindful that the President is chosen by the people of the entire Nation. It is their wish and their right that he serve as President for the term for which he was chosen. Every sensible and sympathetic construction favoring his continued performance of Presidential duties should be accorded him. Indeed, were error to be committed, it should be in favor of such a continuation in office or, were it interrupted by a disability, by his resumption of the office at the earliest possible moment upon recovery. The members of the executive branch are best situated to protect that interest.

From what briefly has been developed, it is readily apparent that neither the judiciary nor the legislative branch should be injected into the decisionmaking process of declaring Presidential inability or recovery. As if in confirmation of the point, we have the expression of Chief Justice Warren that it would be inadvisable for the Court or any of its members to assume such a role. Our personal awareness of the acutely political role pursued by Members of Congress likewise forbids injection of this branch into that process.

It is for these reasons, Mr. Chairman, that Senate Joint Resolution 6 is offered for your subcommittee's consideration. I look forward to the opportunity of working with the subcommittee in its notable effort to devise a sound and acceptable solution to one of the most delicate constitutional issues facing our country today. Events of the last few weeks argue against further delay.

Mr. Chairman, I appreciate the chairman's desire to confine these hearings to as reasonably a short period of time as is possible. It cannot be denied, however, that we are considering a very, very important subject. I do think that we should not throw everything to the winds just for the purpose of expediting action on this matter.

Senator BAYH. And the Senator does not care to do it.

Senator HRUSKA. I know that is not your intention. I should like to make a brief summary of the position which I had assumed and declared last year and ask permission to file a more extended statement. Senator BAYH. May I clarify what I said a moment ago? The reason the Senator from Nebraska was not asked to make a statement earlier was because we discussed this matter, as you recall, and you suggested that in deference to the Attorney General, we forgo our statements. As I remember, what I said was not very concise and specific at all in presenting the proponents' arguments, because I thought the Attorney General should have the opportunity to make his statement. There is no desire on the part of the chairman to limit the length of this hearing. Certainly, the reason that we are trying to concentrate the time which is spent in the hearings by hearing others who might be in opposition to Senate Resolution 1 is for this very purpose. We have had a complete array of testimony supporting it and we want to make absolutely certain that everyone who objects, who has a clarifying thought or alternative solution, has a complete opportunity to be heard. This could very well be helpful to us.