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We still have the possibility that the Attorney General, Mr. Katzenbach, may wish to appear. He has agreed to submit some suggested amendments in pursuance of the request made by certain of the members of him.

Mr. Foley, will you contact Mr. Katzenbach so that he will have the benefit of those suggested amendments.

Unless there is something else to come before

Mr. LINDSAY. As I recollect it, our colleague, Mr. Poff, felt strongly that he had additional questions he wanted to ask the Attorney General.

The CHAIRMAN. Yes, I used the possibility. If any members want to question him further, they will have the privilege, of course, and he stands ready. I spoke to him only the day before yesterday on that matter, and he said he would be very happy to appear if we wished, and would await our call if we want him.

Mr. McCLORY. Mr. Chairman, are you stating any time, at present, within which written statements or letters or communications might be received?

The CHAIRMAN. Yes, the record will remain open for that purpose. Mr. McCLORY. You are not establishing a definite time now?

The CHAIRMAN. I said reasonable time. You can be the judge of that, and I will abide by your views.

We will now adjourn.

(Whereupon, at 2:37 p.m., the committee adjourned.)

(The following matter was received for the record :)

PROPOSED LEGISLATION ON REAPPORTIONMENT OF CONGRESSIONAL DISTRICTS

(By the Committee on Federal Legislation, Association of the Bar of the City of New York)

THE PROPOSED BILL

H.R. 2836, 88th Congress, 1st session (1963) (Representative Celler), would amend section 22 of the Reapportionment Act of June 18, 1929, as amended (2 U.S.C. 2a), to provide in a recast subsection (c) that, beginning with the 93d Congress (1973),1 each State shall have a number of congressional districts equal to the number of Representatives to which the State shall be entitled (i.e., no at-large representation), and each district "shall at all times be composed of contiguous territory, in as compact form as practicable, and no district "shall contain a number of persons, excluding Indians not taxed, more than 15 per centum greater or less than the average obtained by dividing the whole number of persons in such State, excluding Indians not taxed, as determined under the then most recent decennial census, by the number of Representatives to which such State is entitled under the apportionment made upon the basis of such census."

The bill further provides that "any establishment of congressional districts in any State pursuant to the preceding subsection (c) shall be subject to review, at the suit of any citizen of such State, by the district court of the United States for the district in which such citizen resides; and any court before which a case involving the establishment of such districts may be pending shall give precedence thereto over all other cases or controversies, and if such court be not in session, it shall convene promptly for the disposition thereof." 2

1 After the decision in Wesberry v, Sanders, 376 U.S. 1 (1964), discussed infra, Representative Celler was reported to favor making his bill "effective 2 years from now,' New York Times, Mar. 19, 1964, p. 17, col. 4.

2 H.R. 7343, 88th Cong., 1st sess. (1963) (Representative Mathias) would permit a 20-percent variation from the average and would require at-large elections of Representatives from a State if the Director of the Bureau of the Census determined that that standard was not met in any congressional district therein.

HISTORY OF FEDERAL LEGISLATION

The history of the Federal legislation on election of Representatives by districts is summarized (with citations to the statutes involved) in hearings on H.R. 841 and others before Subcommittee No. 3 of the House Committee on the Judiciary (87th Cong., 1st sess., ser. 9, at 68, 70 (1961) (memorandum from Legislative Reference Service, Library of Congress), and in the dissenting opinion of Mr. Justice Harlan in Wesberry v. Sanders (376 U.S. 1, 20, 42-44 (1964)). The first act passed by Congress which called for election of Representatives by districts was enacted in 1842, at which time, although 17 States were already electing their Representatives by districts, the remaining 9 States elected all their Representatives at large. In the act of 1842, Congress apportioned Representatives among the several States according to the latest census and provided for the election of Representatives in States entitled to more than one Representative by "districts composed of contiguous territory.”

The act of 1950, which provided for the seventh census, omitted the requirement that Representatives be elected from districts, but a provision for districts composed of contiguous territory was reinserted in the act of 1862. The act of 1872 repeated that provision and added the requirement that each district contain "as nearly as practicable an equal number of inhabitatnts." The last provision was continued until 1901 when Congress added the requirement that the districts be "compact," so that the law then provided that Representatives "shall be elected by districts composed of contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants." That provision remained in force until the Reapportionment Act of 1929, which omitted it, and it was again omitted when the act of 1929 was subsequently amended.

ENFORCEMENT PROCEDURES

Although there appears to be a wide area of agreement among those without partisan interest in the outcome of a particular apportionment in favor of reenacting some criteria for apportionment of congressional districts, for a long time there has been substantial disagreements as to the enforcement provisions which such a statute should contain. Several possibilities have been suggested: 1. No enforcement provision and reliance upon the good faith of the State legislatures to bring about compliance with the statutory provision.

2. Reliance upon private citizen litigation as in H.R. 2836.

3. Enforcement by Congress by refusing to seat Representatives from a State which violated the standards for apportionment specified by Congress.

4. Enforcement by Congress by giving Congress the right to redistrict when State districting violated the standards for apportionment specified by Congress. See report of American Political Science Association, Committee on Reapportionment, reprinted in Hearings Before Subcommittee No. 2 of the House Committee on the Judiciary (86th Cong., 1st sess., 26-29 (1950)).

5. Requiring election at large where the congressional criteria were not followed by the States.

As far as congressional enforcement is concerned, the question of redistricting has twice come before the House of Representatives in the form of contested election cases. In Davison v. Gilbert (1901), (Rowell, "Digest of Contested Election Cases in the House of Representatives, 1789-1901," at 603-606 (1901), the House of Representatives Committee on Elections held it to be "not politic" to deny a seat to a candidate on the ground that the district which elected him was illegally constituted. In Persona v. Sanders (1910), (Rowell, "Digest of Contested Election Cases in the House of Representatives, 1901-17," at 43-49 (Moores ed. 1917)), the House took no action, despite a committee recommendation that a Virginia redistricting act be held void as violating the reapportionment law. Wesberry v. Sanders (376 U.S. 1 (1964)), has now eliminated any doubts as to the right of the courts to review congressional districting, thus rejecting the views expressed in Colegrove v. Green (328 U.S. 549 (1946)) (minority opinion), that the courts should decline to exercise jurisdiction in congressional districting cases either because districting is a "political question" or as a matter of equitable discretion. Wesberry has accordingly made it clear that the State legislatures and Congress do not have jurisdiction over districting matters to the exclusion of the judiciary. Finally, Wesberry established that there is a constitutional requirement that, within a State, congressional districts must be "as nearly as is practicable" equal in population in order to comply with what the Court concluded was the constitutional mandate that "one man's vote in a congressional election is to be worth as much as another's" (376 U.S. at 7-8).

H.R. 2836 attempts to provide an objective standard as to permissible variations in population to guide legislatures in establishing congressional districts. The Wesberry decision recognizes that "it may not be possible to draw congressional districts with mathematical precision" (Id. at 18). The Court might well be disposed to sanction some variations between districts in order to take account, for example, of such factors as area or natural boundaries and would dobutless give considerable weight to a congressional determination of permissible variations, which might then have the salutary effect of forestalling litigation over smaller variations. However, in view of the pronouncements in Wesberry, it would seem highly doubtful that a variation of as much as 15 percent from the average-which could mean a 30-percent variation between districts from the average is permissible. As to review of congressional districts established under the proposed legislation, we think that the House of Representatives Committee on the Judiciary, to which the bill was referred, should consider making it expressly clear whether or not the jurisdiction to review conferred on the U.S. district courts is intended to be exclusive and to preclude review by the State courts. See General Investment Co. v. Lake Shore & Mich. S. Ry. (260 U.S. 261, 286-88 (1922)); (Hart and Wechsler, The Federal Courts and the Federal Systems" 373–74 (1953)).

CONCLUSION

We support the approach taken by H.R. 2836 of providing standards for congressional districting, including a specified permissible variation in population to operate as guides to State legislatures and perhaps having the effect of reducing the amount of litigation. In the first instance, the legislatures, of course, should adhere to the standards specified by Congress with due regard to the Wesberry decision. The possibility of judicial review within the framework of those standards may then produce a fairer overall result than if the matter remained entirely with the political branches of Government. Respectfully submitted.

Committee on Federal Legislation: Fred N. Fishman, Chairman,
Sidney H. Asch, Eastman Birkett, George H. Cain, Joseph Cal-
deron, Donald J. Cohn, Louis A. Craco, Benjamin F. Craine,
Nanette Dembitz, Arthur J. Dillon, Barry H. Garfinkel, Elliot H.
Goodwin, Sedgwick W. Green, H. Melville Hicks, Jr., Robert M.
Kaufman, Ida Klaus, Leonard M. Leiman, George Minkin, Gerald
E. Paley, Albert J. Rosenthal, Peter G. Schmidt, Henry I. Stimson.

JUNE 1, 1964.

PRESIDENTIAL INABILITY

A second report on this subject by the Committee on Law Reform of the New York Chamber of Commerce

The Constitution of the United States leaves unsolved one problem, the proper solution of which may be vital to the safety of our Republic. The problem is how the presidential duties and powers are transferred in the event a President becomes incapable of carrying out the duities of his office, particularly in the case where he does not understand that he has become incapacitated. Although there has long been an awareness of this problem, and although it has brought forth a multitude of studies and proposed solutions, it is as yet unresolved. It came to the fore during the disability of President Garfield in 1881, and again in 1919 and 1920 during the illness of President Wilson. Most recently it arose during the illness of President Eisenhower. In each case the Vice President was faced with a dilemma. There was a need to exercise leadership, yet a fear of usurping Presidenital powers or even the office itself. These instances pointed out the need of a definite procedure and guideline by which the Vice President

3 In his dissenting opinion in Wesberry, Mr. Justice Harlan commented upon existing congressional districts as follows: "In the last congressional election, in 1962, Representatives from 42 States were elected from congressional districts. In all but five of those States, the differences between the populations of the largest and smallest districts exceeded 100,000 persons. A difference of this magnitude in the size of districts the average population of which in each State is less than 500,000 is presumably not equality among districts 'as nearly as is practicable,' although the Court does not reveal its definition of that phrase" (376 U.S. at 20-21); see also id. at 49 (appendix giving size of largest and smallest districts in each State) (22 Cong. Q. 354 (1964)).

might assume the duties of the Presidency during the President's incapacity and thereafter relinquish such duites. It was also realized that there was a need to provide expressly that the Vice President, during any such disability of the President, would assume only the powers and duties of the office of the President, and not the office itself, thus perhaps permanently ousting the elected President. The recent assassination of President Kennedy has again emphasized the importance of a Vice President's quickly and assuredly picking up the reins of government as they fall from the hands of a faltering President. The urgency may be just as pressing in the case of a President's incapacity as in the case of death, but a Vice President and the Nation have no guidelines in such a case.

BASIC QUESTIONS UNDER THE PRESENT CONSTITUTIONAL PROVISION

The present constitutional provisions relating to succession to the Presidency are found in section 1 of article II which states:

"In case of the Removal of the President from Office, or of his Death, Resignation, or inability to discharge the Powers and Duties of the said Office, the same shall devolve on the Vice President, and 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 act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

The basic questions which the Constitution leaves unanswered are these: "1. Who, or what body, is to decide that a President is unable to discharge the powers and duties of his office?

"2. What is the proper procedure for declaring that a President's inability has been terminated?

"3. Does the Vice President assume the Office of the Presidency in the event of presidential inability, or does he become Acting President, assuming only the powers and duties of the Office?

"4. Does the problem of succession in the case of disability require constitutional amendment, or can it be resolved by legislation?"

SPECIAL AGREEMENTS

Recognizing the problem thus presented, President Eisenhower concluded a memorandum of understanding with Vice President Nixon as to the procedure to be followed in case the President should become incapacitated. Similarly, President Kennedy and Vice President Johnson entered into such an agreement. These agreements were to be effective, however, only during the terms of office of the parties concerned. In substance, these agreements provided that if possible, the President would inform the Vice President of any inability, and the latter would serve as Acting President for the duration of the inability. If the President were unable to communicate his disability, the Vice President, after such consultation as seemed appropriate, would decide the question and assume to serve as Acting President. In either case the President would decide when the disability had ended.

These agreements could serve as no more than an emergency device pending a permanent solution. Not only are these agreements temporary in nature, but they do not cover the case of a mentally ill president who insists that he is well.

PROPOSED SOLUTIONS

It is almost unanimously agreed that there is a need for a more permanent solution, but there are almost as many proposed solutions as there are people considering the matter. The Committee on Law Reform has studied these alternate proposals, and the New York Chamber of Commerce on January 11, 1961, adopted the first report of this Committee. The report recommended that the provisions of the Constitution of the United States relating to the death, resignation, removal or inability of the President, be amended to provide (1) that the Vice President, in case of inability of the President. shall succeed to the powers and duties of the office of the President, but not to the office itself; and (2) that the determination, commencement, and termination of such presidential inability be by such method as the Congress, by law, shall provide.

The recommendation of the Committee on Law Reform was preceded by, and partially based on, work in the same area by the bar associations. Reports were published by the Committee on Federal Legislation of the Association of the

Bar of the City of New York, the New York State Bar Association, and the American Bar Association. The recommendations of all three were in substance the same as the recommendations of the Committee on Law Reform.

In 1962 the American Bar Association reaffirmed its prior stand in support of such an amendment, and recommended interim legislation pending adoption of the proposed constitutional change. Later in 1962 the Committtee on Federal Legislation of the Association of the Bar of the City of New York issued a report which took cognizance of the fact that its prior recommendation was consistent with the position of the American and New York State Bar Associations. It also reaffirmed its prior stand and again endorsed the recommended amendment. More recently, on January 20 and 21, 1964, the American Bar Association convened the conference on presidential inability and succession. In addition to the many prominent lawyers who constituted the conference, several Members of Congress participated in the discussion, including Senators Keating, Hruska, and Bayh, the first two being members of the Senate Judiciary Committee, and the latter being chairman of the subcommittee on Constitutional Amendments of that committee, and Representatives Celler and Wyman, the former being chairman of the Judiciary Committee of the House. The conference issued a report stating the general consensus of those attending. The American Bar Association, through a special committee, is now working toward the implementation of such consensus by a constitutional amendment.

The proposal is to amend the Constitution as follows:

"(1) In the event of the inability of the President, the powers and duties, but not the office, shall devolve upon the Vice President or person next in line of succession for the duration of the inability of the President or until expiration of his term of office;

"(2) The inability of the President may be established by declaration in writing of the President. In the event that the President does not make known his inability, it may be established by action of the Vice President or person next in line of succession with the concurrence of a majority of the cabinet or by action of such other body as the Congress may by law provide;

"(3) The ability of the President to resume the powers and duties of his office shall be established by his declaration in writing. In the event that the Vice President and a majority of the Cabinet or such other body as Congress may by law provide shall not concur in the declaration of the President, the continuing disability of the President may then be determined by the vote of two-thirds of the elected members of each House of the Congress;

"(4) In the event of the death, resignation, or removal of the President, the Vice President or the person next in line of succession shall succeed to the office for the unexpired term; and

"(5) When a vacancy occurs in the office of the Vice President the President shall nominate a person who, upon approval by a majority of the elected Members of Congress meeting in joint session, shall then become Vice President for the unexpired term."

This proposal varies from the prior recommendations of the bar associations and of the chamber of commerce. The major points on which it varies are:

"(1) it would put into the Constitution the procedure, subject to any express right of Congress to legislate in the area, for determining the incapacity of the President and the termination thereof, rather than leaving this wholly to be supplied by Congress in the form of legislation; and

"(2) it provides that when the office of Vice President falls vacant, it shall be filled by nomination of the President with the approval of Congress."

RECOMMENDATION OF THE COMMITTEE ON LAW REFORM

Except as to the provisions for filling a vacancy in the office of Vice President, this committee prefers its original proposal, which would leave entirely to Congress the procedure for determining a President's incapacity and recovery. This would allow flexibility for any future changes and at the same time would provide enough protection from partisan politics, since any such legislation would need either the approval of the President or the vote of two-thirds of Congress to override a veto. The Committee on Law Reform does not consider this difference as vital, however, and it believes that this more recent proposal is acceptable. The fate of all proposed reform in the past has been that it faltered when its supporters disagreed on the form that the change should take. It is important that this proposal not meet the same fate.

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