I think that that is, if not the crux, certainly a part of the fear that most of us have had with respect to the designation of his successor. Then again, Judge, on page 3 you stated inevitably if there was confusion, if there was doubt, if there was suspicion, the Congress naturally would be the inevitable body finally and lastly but certainly definitely the people's representatives to step in. Mr. MUSMANNO. Yes. Mr. CHELF. Then again on page 4—and I was very much impressed with this-you said: I remember that when I testified before the late Senator Kefauver's committee on this subject in 1958, there were those who opposed a constitutional amendment on the ground that it would take too much time for adoption and ratification, whereas a statute could be whipped through immediately. It is now 7 years since 1958 and that statute has not yet been whipped through. That is the understatement of all time. I personally want to thank you, Judge, for your kindness and consideration in coming here. I knew that you would have much to contribute to this subject matter. Mr. CELLER? The CHAIRMAN. No questions. Mr. CHELF. Mr. MacGregor? Mr. MACGREGOR. No; but we thank you very much for your appearance, Judge Musmanno. I have no questions. Mr. MUSMANNO. Thank you, Congressman. Mr. CHELF. Mr. Hutchinson? Mr. HUTCHINSON. Judge, I take it in the last paragraph of your statement you indicated that you are not withdrawing future consideration of your suggestion that the President have the power to assign duties to the Vice President. In your proposal here, you say: The Vice President shall assist the President, and the President shall assign to the Vice President such duties as he sees fit. Mr. MUSMANNO. Yes, Congressman. Mr. HUTCHINSON. Now, in withdrawing consideration of this amendment at this time, you are not repudiating that concept, are you? Mr. MUSMANNO. I am not repudiating that concept, but being very realistic, I feel that the Congress would not go into that subject at this time. Probably the majority of Congress feels that it is important that the subject of presidential inability and succession be definitely disposed of now, and I would not want-no matter how passionately I feel on his other subject-to have the first part of the constitutional amendment jeopardized by a lingering discussion on the subject of vice-presidential responsibilities and duties. In a word, I believe it is a mistake that the Vice President should be in the legislative department, because he has no function there except to preside over the Senate, as of course this committee well knows. He is a timekeeper, a metronome. He has no voice. Vice President Nixon indicated that in 8 years he only voted eight timesonce a year--and with a Vice President of tremendous abilities and energies such as we have, fortunately, today, it seems to me a waste of great talent to have him merely presiding over the Senate. I would like to see him in the executive department where he would be well used constitutionally, but I say I have some fears about the discussion of that subject at this time. Mr. HUTCHINSON. Thank you, Judge. Mr. CHELF. Mr. Grider? Mr. GRIDER. None; except to thank the Judge. Mr. MUSMANNO. Thank you. Mr. CHELF. How about counsel? Mr. COPENHAVER. Judge, on page 3 you make the statement: It would be a blunder to entrust the problem of a temporary presidential successor to any other body * * * With regard to this statement, are you again suggesting that in House Joint Resolution 1 we should not permit Congress to have the opportunity to appoint a body other than the Cabinet to pass on the question of disability? Mr. MUSMANNO. I do feel that way, and I am afraid that the resolution as drawn might permit Congress to designate some other body, and I think that would be a big mistake. Mr. COPENHAVER. Then you go on in the next paragraph and state that it would be distressing to the American people, in a sense, if the issue were to become a state trial with 535 persons-meaning Congress-sitting as a jury. Would you also then mean to say that you would be opposed to the provision in section 5 of House Joint Resolution 1 which gives Congress the final authority to challenge the Vice President's statement which indicates that the President's disability remains after the President says it no longer remains? Mr. MUSMANNO. No. You will find on page 3 that I do say that if it becomes necessary, then Congress naturally would be the inevitable body to cut the Gordian knot of any extended controversy between the President and the Vice President. I do not believe that we will ever reach that state, because there is a certain constitutional morality that is respected by members of the Cabinet and those holding responsible office under our democratic republic. I don't think we would ever get to that point, but if we should, as I said, we are amending the Constitution not for 10 years or 20 years, but for hundreds of years, and we have that in reserve as the last resort in the last analysis to solve this problem. I don't think this problem will ever arise, but if it should, we have no fear but that it will be properly disposed of in accordance with the ideals of this great democracy of ours. Mr. COPENHAVER. Now as a final question, keeping in mind your statement about granting Congress the right to preclude any period of too long delay in deciding this issue your reference to cutting the Gordian knot-and also on the fifth page where you set out an alternative for filling the office of the Vice-Presidency, have you had an opportunity to examine House Joint Resolution 3 or House Joint Resolution 119, which were proposals which provided that Congress be handed this issue of a contest between the President's statement and the Vice President's statement on whether the President is or is not disabled under section 5, that Congress must act within a certain period of time, and if they do not the President automatically returns to the powers and duties of his office? Would you care to comment upon that? Mr. MUSMANNO. I don't think there should be any limitation placed upon the time within which Congress must act in the event we reach that stage, but I though you were going to comment on my humble suggestion that section 2 be amended, that if Congress does not elect such nominee within 30 days, the President shall submit another nominee and repeat individual nominations until Congress elects a Vice President. Here I do see perhaps. a slight possibility of embarrassment. Suppose Congress informally is not impressed with the vice-presidential nominee, but yet does not want to vote him down. They simply do nothing, and there is no way of compelling them to do anything. Mr. COPENHAVER. I might say as counsel, speaking personally, I feel much more strongly about the other situation, because I see too many opportunities for political machinations occurring in section 5 of House Joint Resolution 1 whereby the Vice President who has in one way or another usurped the office of the President might fail to reconvene Congress, or Congress delay for an indefinite period of time in passing upon the President's disability, so I feel strongly about the need for a time limit there. I might say I personally agree there ought to be a time limit in section 2. However, I would follow the same analogy whereby the Congress has 30 days to pass upon it. If it fails to pass upon it within that 30-day period, then the nominee of the President shall become Vice President. Mr. MUSMANNO. I would say, Mr. Counsel, that constitutionally under this proposed resolution the Congress would be compelled to come into session even without the call of the President. Mr. COPENHAVER. There is no way they could be called in when they have adjourned. You see, what I am trying to do is draw a sort of reverse analogy of how it operates. Going back to disability, I could see a situation arising where there is real doubt in the Congress as to which statement or set of facts to accept the President's that he no longer is disabled or the Vice President's that he remains disabled-and there may be a close question. It is not a question of whether he is out, is unconscious, and Congress very frankly not wishing to be a buckpasser, but being in sincere doubt, and respecting both men, would instead of voting and upholding the President or voting and upholding the Vice President, say, "Since we have this doubt, this doubt shall be passed in favor of the President by our refusing to vote within the time period," with the President returning to his office. Mr. MUSMANNO. It is your thought that the Acting President could defer any possibility of being ousted by not calling Congress in session. Is that the fear you are expressing? Mr. COPENHAVER. He could delay. Mr. MUSMANNO. Well, my thought is that-and I don't have the wording of the resolution before me, but it indicates that Congress shall then meet the issue. Mr. COPENHAVER. According to the newly revised Senate proposal that says Congress shall immediately proceed to consider, which is about as open as you could get. Mr. MUSMANNO. And you feel that Congress could not, under that language, convene without the call of the President? Mr. COPENHAVER. NO. Mr. MUSMANNO. I would say that since this constitutional amendment is complete in itself that it would necessarily amend any other part of the Constitution which would call for the convening of Congress by the President. This would be one of those extraordinary situations where Congress would need to convene automatically. Mr. COPENHAVER. Of course I might come back-and I don't wish to prolong this I could come back and say naturally I am trying to envision a situation with a hostile Congress, and assuming that Congress could prolong its discussion indefinitely. By the same token, Congress may not wish to reconvene, even assuming your statement was correct about the power to recall. Mr. MUSMANNO. I feel that there should be some expression in the amendment that Congress shall proceed within a certain chronological time. Mr. CHELF. Mr. Foley, general counsel. Mr. FOLEY. In the light of your comment with regard to the office of the Vice-Presidency, I would like to call your attention to the language inserted in sections 4 and 5 as submitted by the Senate, that whenever the Vice President and a majority of the principal officers of the executive departments, or such body as Congress may provide, transmits to the President of the Senate and it goes on-and then in 5 we use the same language, whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives, and then goes on. I would like to ask you this. In the light of that language, we have only one President of the Senate and he is the Vice President of the United States; is that not so? Mr. MUSMANNO. That is true. Mr. FOLEY. So that the Vice President would be writing to himself as the President of the Senate in both section 4 and section 5. Mr. MUSMANNO. When the President of the Senate is absent for any reason, the President pro tempore Mr. FOLEY. Oh, but this constitutional amendment refers to the President of the Senate, and article I, section 3, says: The Vice President shall be the President of the Senate. Mr. MUSMANNO. Very well. Even under that interpretation I see no impediment, and certainly no constitutional obstacle, because very often an individual holds two offices under our form of government. This applies to the State as well as the Federal Government, and there is no reason why the Vice President can't address a communication to the President of the Senate who physically happens to be himself. Mr. FOLEY. You feel that that language doesn't need clarification? Mr. MUSMANNO. I don't think so. Mr. CHELF. Judge, we had a similar situation on the State level in Kentucky. Some few years ago, the then Governor of the State of Kentucky saw fit to resign as Governor, so that the then Acting Governor of Kentucky, or Lieutenant Governor, could become Gov ernor. He sat down and he wrote himself a letter, literally wrote himself a letter, "My dear Governor: I hereby tender my resignation," as of such and such a date, and signed it by his name, and when he did that he delivered it to himself from his left hand to his right and it became official. Then the Lieutenant Governor became Governor, was sworn into office, and promptly appointed my friend to the Senate of the United States; so it has been done-let's face it. Mr. MUSMANNO. And upheld constitutionally? Mr. CHELF. Yes; it survived court test. Mr. MUSMANNO. I might say in another department of government, Congressman Chelf, that a judge may sit as a law judge, and then sit as an equity judge, although it is the same judge speaking. He is acting as law judge, and then will say, from the bench, "I will now sit in equity"-but it is always the same judge, the same knowledge, the same office, but he is sitting in two capacities. Mr. CHELF. Exactly. Down in Kentucky, we have the county judge who sits as county judge. Then he says, "I am now sitting as juvenile judge," and he changes, literally changes colors right at the same bench at the same time. Mr. MUSMANNO. I think it is extremely well that we question all these things as we go along, but I, myself, do not see any constitutional impediment or danger in Congressman Celler's proposed constitutional amendment. Mr. CHELF. Are there any additional questions by any of the members? We will adjourn until tomorrow morning at 10 o'clock, when the Honorable Lewis Powell, Jr., president of the American Bar Association, will testify at 10 o'clock, and the Honorable Herbert Brownell, former Attorney General of the United States. (Whereupon, at 3:28 p.m., the committee adjourned until 10 a.m., Wednesday, February 17, 1965.) 44-261-65--15 |