Mr. McCULLOCH. I would like to say that while the Vice President is the Acting President, even though the Congress may be in adjournment, under the Constitution he would have the right to convene the Congress and in these days of fast transportation it doesn't take too long for the Congress to convene and quick, certain, effective, dynamic leadership may justify such an action and that, by the way, is one of the reasons why I said we had to discuss a bit further some of these proposals.

Senator BAYH. May I offer one word here so that the record, in my opinion, may be abundantly clear?

In no way are we attempting to say that as far as I am concerned, and I think so far as our committee is concerned, that this is it and this is the end. I think this committee should-and if I know this committee, it will-give it the most careful examination and scrutiny and so far as the junior Senator from Indiana is concerned, any questions you have to ask now, later, or any time on which I may be helpful, I am ready and willing to answer them because this is a matter of great concern and it shouldn't be entered into carelessly. I have no objections to answering questions at all.

The CHAIRMAN. Will the gentleman yield?

Mr. POFF. Yes.

The CHAIRMAN. In answer to your question by our distinguished ranking Republican member that 10 days may elapse between the nomination and the confirmation, suppose that the Congress does not act within 10 days? If we put 10 days in there what would happen then?

Mr. McCULLOCH. Mr. Chairman, I might answer that question if the chairman will permit.

The CHAIRMAN. Yes, sir.

Mr. McCULLOCH. The legislation that I proposed provided that under section 5 the President shall forthwith thereafter resume the duties of the Presidency.

Senator BAYH. May I disclose the thinking of our committee as far as this particular limitation is concerned--and here again I think we have carefully considered it.

It might well take longer for Congress to make a determination in one type of illness than another type of illness. The type of testimony that would be involved to fully disclose to the Members of Congress the condition of the President might take longer in one type of illness than another.

In fact, one horrible example that was brought to our attention that I don't anticipate-but if we are looking for horrible possibilities, here is one: What if we were engaged in nuclear war and the seat of Government is destroyed? There would be a time element involved. finding a place where the Congress could meet and convene despite rapid travel we take for granted.

Mr. McCULLOCH. Mr. Chairman, I would like to reply that 10 days was an arbitrary time limit suggested for the very purpose of what we are doing now, discussing, and if we determined that a time limit should be set whether it is 5 days or 10 days or 20 days, is a question of judgment and time delays do not concern me too much in assembling

the representative of the people of the United States when the occasion demands it.

Mr. WHITENER. Mr. Chairman.

Mr. POFF. Mr. Chairman, if I may recapture the floor.

Mr. WHITENER. Just one question.

Senator, earlier I made some reference using the expression members of the President's Cabinet. I think now, perhaps, I understand more fully the problem in looking at Corwin on Constitution of the United States. I find this statement.

The Cabinet as we know it today, that is to say, the Cabinet meeting, was brought about solely on the initiative of the first President and may be dispensed with on Presidential initiative at any time being totally unknown to the Constitution.

I do note there was a study made by the Attorney General, 36 Opinion, Attorney General, April 12-16, 1929, on the history of this proposition. I am just hoping it possibly will be available.

Mr. POFF. Has the gentleman concluded?

Mr. WHITENER. Yes, sir; thank you very much.

Mr. POFF. Mr. Chairman, to this point my line of inquiry has been addressed to section 2.

Now, I want to shift to section 5, if I may. I believe the Senator knows I am the author of House Joint Resolution 3 which was introduced on January 4, the first day of the session this year. My bill in most particulars is the same as the bill the Senator introduced. Its principal point of departure is in section 5. It follows somewhat the concept to which the distinguished gentleman from Ohio alluded, but they are not altogether the same.

In order to put my questions in proper perspective may I read the pertinent language from my section 5?

If the Congress within ten days after reecipt of the vice-presidential written declaration determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the office of the Vice President shall continue to discharge the same as Acting President. Otherwise the President shall resume the discharge of the powers and duties of his office.

Now, the purpose of structuring the language so was to give the Congress of the United States the opportunity to defend the President without giving positive offense to the Vice President.

May I explain what I mean? Under the language that I have just read the Congress would have three possible choices. After the Vice President has submitted his challenge, the Congress, first, can vote and uphold the vice-presidential challenge. Second, the Congress can vote and reject the vice-presidential challenge. Third, the Congress could allow the 10-day period to expire without voting at all.

Now, if Congress chose to pursue the latter alternative it would be equivalent to the second alternative; namely, voting on the Vice President's challenge but rejecting it. I can envision the possibility that the Congress might want to defend the President by rejecting the Vice President's challenge but would rather not have to vote on it. I am not talking about courage. I am talking about the pragmatic doubt that might be involved. Now, I ask the gentleman if he has considered that approach?

Senator BAYH. I think that we have to realize when we vote as Members of Congress or take action that we consider what the final result of our actions is going to be.

To feel in my mind that that President was incapable of fulfilling the powers and duties of his office, and sit silently by and do nothing to prevent him from resuming the powers and duties at the end of 10 days would constitute gross negligence. By inaction you are, in effect, acting, are you not?

So, the final result of inactivity would be the same as activity and the only

Mr. POFF. I don't want to engage in a quarrel. I am not.

I am trying to reason with him. Is it not possible, sir, under your proposal, for a Congress that happened to be hostile to the President, simply to sit idly by and do nothing when the Vice President's challenge reaches it?

Senator BAYH. In what circumstances, if I may ask?
Mr. POFF. Sir?

Senator BAYH. Under the provisions you propose?
Mr. POFF. Under your bill, wouldn't that be possible?
Senator BAYH. Yes, it would be.

Mr. POFF. Would it not also be possible if the

Senator BAYH. May I say, if they sat idly and did nothing for an extensive period of time the President could resume his powers and duties because the Congress didn't act immediately?

Mr. POFF. Well, let's suppose the Vice President who is discharging the duties of the presidency has a hostile Congress and suppose that Congress is not motivated so much by a desire to uphold the President as to punish the Vice President. Wouldn't the same possibility entail? I am arguing, of course, for the logic of a time limit.

Senator BAYH. We are not really arguing. We are trying to explore each other's thoughts here. I think it is something you must pursue. The question is whether you want to limit the capacity of Congress-all of us sitting here to delve into this matter and finally decide in our own minds on a matter of grave importance to the country. I, for one, feel that I can trust you and my colleagues in the Senate to do this with reasonable dispatch but would rather not hang around their necks an arbitrary time limit so that if action is not taken the President finally resumes the powers and duties of his office. Suppose it is a complicated situation, for example Congress has held hearings and had expert testimony. It looks like within 13 days they are going to be able to get this done. Representative McCulloch says "10" is just an arbitrary figure but let's use it. Let's say within 10 days the power reverts to the President.

Here you have a rather unstable situation. First, a Vice President takes over from the President and then the 10-day time limit expires. Then the President takes his power back and 10 days later Congress decides the Vice President is right and the power comes back to the Vice President again. This is why we stayed up until the wee hours of the night finally deciding that through this period of decision we should know who had the powers and duties, and that should be the Vice President until the decision was made. Then either the President or Vice President would continue to perform the powers and duties.

Mr. POFF. I don't know the 10-day period is any magic period. Probably it is not. Probably it's too short. In any event, I don't see any danger in the power shifting back to where it belonged, where the people placed it-in the President. So, if the 10-day period expired without the Congress acting, I would be glad to see the power go back where it belonged and reside there.

The CHAIRMAN. There is a quorum call, and, Senator, can you come back at 2 o'clock?

Senator BAYH. I will be glad to be back whenever the chairman would like.

I am still feeling very guilty about the Attorney General, knowing he is busier than I am.

The CHAIRMAN. The Chair now will announce a recess until 2 o'clock.

So, Mr. Chairman, I should like to have unanimous authority to strike from my statement these words, "a hit-or-miss process which is done indiscriminately" and insert the word, "done" thereafter.

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

AFTERNOON SESSION

The CHAIRMAN. For the witness this afternoon we will hear from our distinguished colleague, Mr. Lindsay.

Mr. Katzenbach was to return this afternoon, so I am sure we will be able to work it out.

Proceed, Mr. Lindsay.

STATEMENT OF HON. JOHN V. LINDSAY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. LINDSAY. Mr. Chairman, I think it is important that Members who wish to testify be heard, and particularly, if they are members of the committee, and I think it is important, too, that those who have been working on this subject nigh on to 8 or 10 years should be listened to.

On the first point, which is the question of Presidential inability, which we were discussing this morning

The CHAIRMAN. Do you have a statement?

Mr. LINDSAY. I am going to speak from notes. I am not going to submit a formal statement.

On the first point, Presidential inability, I think it is scandalous that the Congress has never acted on this in spite of the fact that administrations, beginning with the Eisenhower administration, have requested Congress to take action, and Congress has done nothing. To move the Congress it has taken the tragic death of a President, President Kennedy, and the blatant danger that existed when Mr. Johnson became President and there was no Vice President.

The country finally became alarmed, and has, I think, exercised enough pressure to push the Congress to taking some action on this subject.

On inability, it doesn't, I suppose, need to be restated how pressing the problem has been in history and how much more pressing it is today in a smaller world in constant danger of hydrogen warfare. Under such circumstances we need decision and fast communication. We recall that President Garfield was in a coma for 80 days, and during that period considerable Government business in both the domestic and international field was impaired.

We know further that during that period of Garfield's incapacity, the Cabinet, including the Attorney General, was divided in its opinion as to who had power. If Vice President Arthur proceeded to act nobody could state with any degree of sureness whether the Vice President's acts would be lawful. As the committee may know, Vice President Arthur, under those circumstances, refused to make any decisions at all.

The disability of Wilson was longer; it was over a year, and although the extent of it is under considerable debate, nevertheless it is established that his disability prevented his participation in the debates over the Versailles Treaty and the League of Nations. This was a sensitive period, as have been periods since then in our history, but nothing compared to what we are faced with now.

We were discussing this morning the question about who shall make the decision as to presidential inability. Is it a vice-presidential decision, or is it a general executive decision, or should it be a congressional decision, or a court decision. There is a good deal of history on this. The question really first arose when President William Henry Harrison died of pneumonia in office. There were those who objected to Vice President Tyler's succession during the President's period of illness, and there were many more who objected to Tyler's succession to the Presidency even after President Harrison's death. The question was whether the Vice President really became President to fill out the unexpired term, or whether he just continued as Vice President and performed the duties of President.

Tyler first held the view that he would only act as President during the unexpired term. Then, later, he apparently changed his mind and decided to assume the Presidency.

We

Seven other Vice Presidents have followed suit since then. In other words, all of them have decided that they were the President, they were not Acting President; they had not just the name, but the powers of office of President. They were Fillmore, Andrew Johnson, Arthur, Theodore Roosevelt, Coolidge, Harry Truman, and Lyndon Johnson. This has a bearing on the question of disability, it seems to me. are told that an examination of the original articles agreed upon by the Constitutional Convention showed that the delegates at that time agreed that upon the inability of the President to discharge the powers and duties of his office, the Vice President should exercise those powers and duties "until the inability of the President be removed."

The original thought of the framers of the Constitution was that the Vice President would act as the President in the case of the President's disability. This view, and I am sure the Attorney General when he testifies will support this, finds support in the debates