PRESIDENTIAL INABILITY

WEDNESDAY, FEBRUARY 17, 1965

HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.

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, Feighan, Chelf, Rodino, Donohue, Hungate, Tenzer, Conyers, Grider, Jacobs, McCulloch, Poff, Cramer, Lindsay, MacGregor, Mathias, Hutchinson, and McClory.

Also present: William R. Foley, general counsel; William H. Copenhaver, associate counsel.

The CHAIRMAN. The committee will come to order for further consideration of House Joint Resolution 1 and similar bills relating to presidential disability.

We have two distinguished witnesses this morning, the Honorable Lewis Powell, president of the American Bar Association, and the former distinguished Attorney General of the United States, the Honorable Herbert Brownell, who are both interested in the American Bar Association's activities.

I want to say at the inception that I personally, and I am sure the members of the Judiciary Committee found the brochure and the various other publications of the American Bar Association very enlightening and very helpful in giving us an understanding of this very difficult subject on presidential disability.

We are very happy this morning to welcome both of you gentleWe will first hear from President Powell of the American Bar Association.

men.

STATEMENT OF LEWIS F. POWELL, JR., PRESIDENT OF THE AMERICAN BAR ASSOCIATION

Mr. POWELL. Mr. Chairman and members of the committee, first may I thank the committee on behalf of the American Bar Association for the courtesy that the committee and its chairman have extended to the American Bar Association, its officers, and its committee.

We have had a very close relationship which we have cherished and appreciated very much.

This morning, Mr. Chairman, I will review briefly the interest of the American Bar Association in this subject. I have a prepared statement which I think has been distributed to members of the committee. I will summarize that, in the interest of saving time.

I will be followed by Mr. Brownell, who is chairman of the association committee on this subject. Mr. Brownell will deal with the merits of House Joint Resolution 1, and then we will both be available to try to respond to questions.

I would like for the record to show that Mr. Edward Kuhn, who is president-elect of the American Bar Association, is also here today. He was a member of this committee last year.

The interest and concern of the American Bar Association and, indeed, of this committee, go back many years. It finally became apparent to us 2 years ago that everyone was in agreement that there was a need to do something about the problem of presidential inability and vice-presidential vacancy. There was no argument as to the need. The difficulty was that constructive action had been frustrated, since the need first became evident in 1881, by diversity of opinion as to the proper solution.

In the hope that possibly we could develop some sort of general consensus in this area, the American bar assembled a conference in Washington in January 1964 of persons who had demonstrated expertise in the field. The list of the conferees who took part in this conference is set forth on page 3 of my written statement.

We met for 2 days and 1 night. We had a luncheon which was attended by Chairman Celler and other members of the Congress. I think it is fair to say that when we started out there were almost as many views as to how best to solve this problem as there were conferees.

At the end of the second day, we agreed on a consensus containing a statement of principles which we thought would solve both of these problems. That consensus is set forth on pages 4 and 5 of my statement.

I should emphasize that the consensus is a statement of principles rather than a definitive draft of a constitutional amendment, and yet the principles in the consensus of the American Bar Association have been embodied in House Joint Resolution 1.

Following that conference in January, this matter was presented to the house of delegates of the American Bar Association, which is the representative body of the association, as I am sure all of you gentlemen know. The house unanimously approved the consensus and also authorized the creation of a special committee, which is now chaired by Mr. Brownell.

The purpose of the committee was to try to educate the public generally as to the need and to develop support for action on these two matters.

As a part of that program, we held a national forum in Washington in May 1964. Congressman Celler and a number of other distinguished leaders participated. Former President Eisenhower addressed the gathering, which included representatives of leading national organizations representing a broad spectrum of thought. Also attending were representatives of the State bar associations from across the country.

Former President Eisenhower's statement was quite a dramatic demonstration of the need for action.

Following that forum, we went to State bars across the country, and as of today a majority of the State bar organizations have endorsed the

American Bar Association consensus which, as I have stated, is consistent in principle with House Joint Resolution 1.

I would like to add just a word, Mr. Chairman, about the situation in the States. I am sure it is known quite well to members of this committee, but there are some 47 State legislatures in session this year. There will be only five in session in 1966 that will not meet this year. Of course, a great many meet every year.

The legislative situation in the States suggests that unless we can get an amendment to the Constitution on its way fairly early this year, there will be no opportunity to consummate such amendment through ratification by the States until, perhaps, 1967.

I would like to conclude, Mr. Chairman, and members of the committee, if I may, by reading just the last page of my written statement commencing at page 8.

As I have said, the vital need is for a solution of these grave problems of presidential inability and vice-presidential vacancy. There have been extensive discussions whenever history has dramatized the need. Indeed, no subject relating to our constitutional structure has received more study. It seems to us that the time has now come for action.

It is not necessary, as the distinguished experts assembled by the American Bar Association agreed, that we find a solution which is free from all reasonable objection. It is unlikely that such a solution will ever be found, as the problems are inherently complex and difficult.

It is the hope and strong recommendation of the American Bar Association, which we know is shared by this committee, that past differences can be reconciled and that a solution be initiated by this session of the Congress.

We urge that the solution be in the form of a proposed constitutional amendment such as House Joint Resolution 1. We believe that the principles of House Joint Resolution 1, which are supported by the American Bar Association and by a considerable body of the most knowledgeable scholars in the field, are sound and reasonable, and are consistent with the basic framework of our Government. In short, we think House Joint Resolution 1 and its counterpart in the Senate is an acceptable solution to the grave problems of presidential inability and vice-presidential vacancy.

We respectfully commend House Joint Resolution 1 to this committee, and urge that the Congress act promptly so that the proposed constitutional amendment may be submitted to the States for ratification at the earliest practicable time.

Thank you, Mr. Chairman.

The CHAIRMAN. We will put your formal statement into the record, if you wish.

Mr. POWELL. Thank you.

(The formal statement of Mr. Powell reads as follows:)

Mr. Chairman and members of the committee, my name is Lewis F. Powell, Jr., I am president of the American Bar Association and practice law in Richmond, Va. I appreciate your invitation to appear here today-as a representative of the American Bar Association-to discuss the problem of presidential inability and also the related question of filling the office of Vice President when a vacancy occurs. I am pleased to have with me today Herbert Brownell, of New York, former U.S. Attorney General, and now chairman of the American Bar Association Special Committee on Presidential Inability and Vice Presidential Vacancy.

In my statement I will trace the history of the American Bar Association's interest in the subject of presidential inability and vice-presidential vacancy. Mr. Brownell will discuss the substance of the pending legislation, House Joint Resolution 1, which we strongly support.

I wish to commend Chairman Celler and this committee for your long interest in the problem of presidential inability and vice-presidential vacancy. This committee has grappled with these problems for many years, and has been a leading force in developing public awareness of the need for solutions. The study undertaken by your committee in 1955 and 1956 focused attention, not only on the difficulties inherent in the subjects themselves, but also upon the difficulties involved in obtaining agreement upon any single solution.

We are pleased that you are now having committee hearings and intend to act promptly. We believe the time has come when a consensus exists, and when action by the Congress is eagerly awaited.

The death of President Kennedy directed the entire Nation's attention to the vacancy in the Vice Presidency and to the chaos which might have existed had the President been disabled seriously.

As in past years when crisis has occurred in the presidential office, the American people became acutely aware of the necessity of assuring unintrrupted continuity in Executive leadership. But this awareness may die down again, as it has following other crises, unless appropriate action is taken promptly.

Congressional leaders, constitutional scholars, and many others have long been in agreement as to the need. The problem-which in the past has always frustrated action-has been the diversity of opinion as to the proper solutions. In an attempt to develop a consensus among scholars and students of this subject, the American Bar Association in January 1964, convened a conference in Washington on presidential inability and vice-presidential vacancy.

Attending the conference in Washington were Herbert Brownell, president, Association of the Bar of the City of New York, and a former Attorney General of the United States; John D. Feerick, attorney, New York; Paul A. Freund, professor of law, Harvard University; Jonathan C. Gibson, chairman, Standing Committee on Jurisprudence and Law Reform, American Bar Association; Richard H. Hansen, attorney and author, Lincoln, Nebr.; James C. Kirby, Jr., associate professor of law, Vanderbilt University, and a former chief counsel to the subcommittee on Constitutional Amendments, Senate Judiciary Committee; Ross L. Malone, past president of the American Bar Association, and a former Deputy Attorney General of the United States; Charles B. Nutting, dean of the National Law Center; Walter E. Craig, president, American Bar Association; Sylvester C. Smith, Jr., past president, American Bar Association; Martin Taylor, chairman, Committee on Federal Constitution, New York State Bar Association; Edward L. Wright, chairman, House of Delegates, American Bar Association, and myself.

The 2-day deliberations of this exceptionally well qualified group were intense and thorough. Proposals of the existing and past Congresses were reviewed in detail. At the conclusion of the deliberations, a consensus statement was made. Although there was not complete agreement by each conferee on all points of the final consensus, there was general agreement of the statement.

The conferees considered both inability and vice-presidential vacancy in terms of broad principles. On the question of action to be taken in the event of the President's inability, it was the consensus of the conference that:

1. Agreements between the President and Vice President or person next in line of succession provide a partial solution, but not an acceptable permanent solution of the problem.

2. An amendment to the Constitution of the United States should be adopted to resolve the problems which would arise in the event of the inability of the President to discharge the powers and duties of his office.

3. The amendment should provide that 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.

4. The amendment should provide that 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.