PRESIDENTIAL INABILITY WEDNESDAY, FEBRUARY 10, 1965 HOUSE OF REPRESENTATIVES, The committee met at 10 a.m., pursuant to adjournment, in room 346, Cannon Building, Hon. Emanuel Celler (chairman of the committee) presiding. Present: Representatives Celler, Rogers, Donohue, McCulloch, Poff, Tenzer, Grider, Whitener, and Chelf. Also present: William H. Copenhaver, associate counsel; William R. Foley, general counsel. The CHAIRMAN. The meeting will come to order for further hearing on House Joint Resolution 1. Our first witness this morning is the Honorable Willard S. Curtin. The Chair wishes to announce that the very distinguished Attorney General Mr. Katzenbach will return to complete his testimony at 2 o'clock. Mr. Curtin, we are very happy to have you. STATEMENT OF HON. WILLARD S. CURTIN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA Mr. CURTIN. Thank you, Mr. Chairman. I believe my office has left copies of my statement here, so I presume you all have them. Mr. Chairman and members of the committee, I much appreciate this opportunity to be heard in reference to this very serious question of Presidential disability, on which congressional action is long overdue. Numerous authorities who have devoted a great deal of time to analyses of the processes under which our Government operates have been struck by the fact that our Constitution is silent on specific procedures to be followed in the event of a President's becoming gravely incapacitated during his term of office. This is a matter of longstanding interest to distinguished scholars who have undertaken studies of our unique kind of representative democracy. People in and out of Government, and notably Members of the Congress, over the years have questioned this apparent flaw in our Republic's structure. Of course, the law does spell out the line of succession to a Chief Executive in the event of death. But it is mute with respect to a manner and method of determining the ability or inability of a President of the United States to discharge the powers and duties of his office in instances where a critical illness or a disability of possible long-term duration may arise. Indeed, a President confronted by such misfortune of circumstances has no clear-cut instructions to which he can look for guidance under the language of our Constitution or of existing laws. Article II, section 1, of the Constitution provides that the Vice President shall exercise the powers and duties of the President in event of the death, resignation, or disability of the Chief Executive, or his removal from office. To take care of further contingencies, a series of so-called Succession Acts were enacted by the Congress. The act of 1886 established a line of succession starting with the Secretary of State and going through the order of Executive Departments. On July 18, 1947, a new law was enacted to bring the Speaker of the House and the President pro tempore of the Senate in line of succession ahead of the Cabinet members. The philosophy behind this action of 1947 changing the line of succession was that the spirit of the Constitution intended clearly that the Chief Executive should be an elected official rather than an appointive one. With this conclusion of reasoning, I fully concur. But the knotty question remains-who is vested with certain, sure authority to arrive at a determination of when is a President not able to discharge the powers and duties of his office? The answer is-no one, under existing processes. I became interested in this problem soon after becoming a Member of the Congress, and pursuant thereto, I introduced a resolution for a constitutional amendment in the 85th Congress, and I have reintroduced the measure, with certain modifications, in each succeeding Congress. The last resolution that I so introduced was on January 6, 1965, and is House Joint Resolution 129. This resolution would establish a unit to be known as the Presidential Inability Commission. The Commission would have the responsibility and authority to relieve the President or Acting President of the United States upon a determination that he is not able to discharge properly the powers and duties of the office of President, and after any such action, to restore the President or Acting President to the assumption of such powers and duties upon a determination within the same term of office that he is able to discharge properly the powers and duties of the office of President. The aforementioned Presidential Inability Commission would be composed of eight members, as follows: First, the Chief Justice of the United States, who would serve as Chairman of the Commission, and who would have no vote in the proceedings of the Commission except in the case of a tie; second, the senior Associate Justice of the Supreme Court of the United States; third, the Secretary of State; fourth, the Secretary of the Treasury; fifth, the Speaker of the House of Representatives; sixth, the minority leader in the House of Representatives; seventh, the majority leader in the Senate; eighth, the minority leader in the Senate. Five members of the Commission would constitute a quorum. Members of the Commission would serve as such without compensation. Any two members of the Commission could cause the Chairman to convene the group without delay by communicating in writing to him, stating that they have sufficient cause to believe that the President is unable to discharge properly the powers and duties of the office. The Commission is then directed to seek competent medical advice as to the condition of the President and his ability to discharge properly said powers and duties. Should the Commission subsequently determine Presidential inability, it is bound to thence notify the House of Representatives and the Senate-if Congress is then in session-the President and the individual next in line of succession to the Presidency. Thereupon, the Presidential powers and duties would devolve upon the individual next in line of succession. The same series of steps is established for the President's reassuming the powers and duties of the office if the Commission determines that the disability no longer exists. I have examined with much interest various other resolutions which have been introduced on this same subject. They provide various methods of handling the problem, and they all have much merit. Any one of the methods proposed by the various Members of the Senate or of the House would serve to remedy an imperfection that for most of our national life has distressed authorities and scholars of American Government. In this day of challenge and stress, it is strongly advisable that the Congress clarify beyond any doubt or uncertainty the provision of the Constitution with respect to the execution of the duties of the President in the event of disability. That, Mr. Chairman, concludes my statement on the matter. I would be glad to answer any questions any member of the committee might have. The CHAIRMAN. The thrust of your argument is that there should be set up what you call a Commission on Inability of the President; is that right? Mr. CURTIN. That is correct, sir. The CHAIRMAN. And that should be composed of the Chief Justice of the U.S. Supreme Court as Chairman, senior Associate Justice, the Secretaries of State, Treasury, and Members of the House and Members of the Senate that is, the Speaker of the House and the majority leader and those identical matters of the Senate. Mr. CURTIN. Yes, sir. The CHAIRMAN. We some years ago sent out a questionnaire to quite a number of political scientists, and some of them recommended exactly what you have indicated, but there was quite a paucity of those who answered the questionnaire. It was not quite universally accepted. However, we are glad to consider your point of view. Mr. CURTIN. Thank you, sir. The CHAIRMAN. Are there any questions? Mr. WHITENER. Mr. Chairman, I would like to ask Mr. Curtin a question. Under your proposal, there would be no implementing legislation available to the Congress, would there? This would be it? Mr. CURTIN. That is correct. This provides only for disability and the decision of the Commission would be final. It has nothing to do with the death of the President. It doesn't in any way handle that problem. Mr. WHITENER. But insofar as your proposed amendment is concerned, if it is approved by the Congress, this would be it. Congress couldn't clarify or do anything in the future, could they? Mr. CURTIN. Except that they could change the amendment by future amendments. Mr. WHITENER. Congress doesn't do that. Mr. CURTIN. They would start it by resolution through the Congress. Mr. WHITENER. So the amendment proposed (H.J. Res. 1) does leave the Congress in position to legislate with reference to the makeup of the Commission and to implement or do other things which may be necessary to carry out the amendment. Are you so satisfied with this language that you think this should be the last word without any improvement by legislative act or otherwise or executing language in the legislative act? Mr. CURTIN. Well, sir, I don't say that mine is the only possible solution to the problem. It is one solution that I have suggested, sir. Many solutions have been offered. I do say, however, when Congress passes a resolution it should be final. I don't think there should be the ability to tamper with it in succeeding Congresses. I think we should solve the problem once, solve it finally and definitely. The CHAIRMAN. You provide that the initiation of the inquiry should be by at least two members of the Commission? Mr. CURTIN. At least two members of the Commission; yes, sir. The CHAIRMAN. And then there is notification to the House and the Senate. Suppose the House and Senate is not in session? Mr. CURTIN. Then there would be no such notification, sir. The CHAIRMAN. Then if the House and Senate are not in session, the House and Senate would be bound, wouldn't they? Mr. CURTIN. Yes, sir. The CHAIRMAN. Are there any further questions? Mr. WHITENER. Let me ask, in section 77 it is provided that the Commission shall seek competent medical advice as to the condition of the President and his ability to discharge properly the powers and duties of his office. Suppose the President says, "I am not going to have any doctor down here looking at me, I am President of the United States," then what happens? Mr. CURTIN. If I might answer with another question, suppose we have and certainly I hope it should never occur but suppose we had a President that became completely mentally incompetent to the point he didn't know what was going on, and, as happens in so many cases where a person is in such a condition, they don't think anything is wrong with them, but believe the rest of the world is wrong. Now, in those circumstances, somebody has to be able to go in and forcibly examine the President, and I think Mr. WHITENER. Forcibly? Mr. CURTIN. I think this Commission should have the power to compel an examination, yes. Mr. WHITENER. Suppose the President says, "I am Commander in Chief of all the military, I will put them in front of the White House and the first doctor that tries to step in here I am going to tell my military people to resist." Mr. CURTIN. Then there would obviously be no need to call a doctor to examine him, because it would be obvious on the face of it that the President is mentally ill. Mr. WHITENER. During Andrew Johnson's time, there were many people that even went to the extent of bringing impeachment proceed ings, and later historians have shown he was a very great man and a lover of the Constitution. Mr. CURTIN. I don't think there was any question about that previous President Johnson being sane. I thought he couldn't agree as to what Congress thought was the proper procedure in dealing with the South. Mr. WHITENER. But they were so anxious to get him that two people suggested this, and then the President has every power that this Nation has to keep a doctor from examining him as long as he is President. Then do they proceed without a medical examination? Mr. CURTIN. I would think that in the event the activities of the President were such that it was quite obvious that, by his very actions, he was insane, they could proceed without such medical examination. Mr. WHITENER. Recently there was an American citizen forced to be put on an airplane, hauled into another State, and thrown into a mental institution because a psychiatrist he had never seen wrote a letter and said the man is bound to be incompetent. Is that the kind of medical advice you think this contemplates? Mr. CURTIN. I think, sir, when you have a Commission made up of the leading officials of the United States, it would be unlikely they would get medical advice that was not the best that could be obtained. Mr. WHITENER. Suppose that was the only advice they could get. If the President puts the troops out there to protect himself, you say that is evidence of mental disability? Mr. CURTIN. All I can say, Mr. Whitener, to that is that somebody has got to decide whether he has a disability or not, and if it isn't done by doctors, any other procedure that you feel would be a better procedure to help this Commission arrive at this decision would certainly be agreeable to me, but obviously somebody has got to make a decision, because the President may be in such physical or mental condition that he could not make that decision. Mr. WHITENER. What does your amendment say about who would become President if there was no Vice President? Mr. CURTIN. This has nothing to do with that. This resolution assumes that there is a Vice President. It seems to me that is not a part of the disability law, because that is a situation where you have got the death of a President. Mr. WHITENER. All right. The CHAIRMAN. May I ask this question? Mr. CURTIN. Yes, sir. The CHAIRMAN. Suppose, God forbid, a President is captured by the enemy and held incommunicado for a long period of time. Would you call that inability? Mr. CURTIN. I am sorry, sir, a President that did what? The CHAIRMAN. I said, God forbid, our President is captured by an enemy and held by the enemy for a rather long period of time. Would you call that inability? Mr. CURTIN. If he is not able to perform the duties of his office, that obviously would be a disability, yes. Mr. WHITENER. Would you need a doctor's statement on that? 44-261 0-65- -10 |