Mr. HUTCHINSON. Thank you.

Mr. CHELF. Mr. McClory?

Mr. McCLORY. I want to add, Mr. Brownell, the fact that you have given a most convincing and helpful statement. You have answered most of the questions I had for you. I would like to add this one question, however, because it has arisen here both with respect to the earlier recommendations of the American Bar Association, and a question which is now arising in the other body as to the form of the amendment, and I would like your opinion as to whether or not—if the provisions for the declaration for the commencement and termination of the period of disability were embodied in the Statute, with the constitutional provision merely authorizing the Congress to act in that way-there is any constitutional question or objection to the office of the Presidency, or the exercise of powers by whoever happens to be in authority at that time. Is there any constitutional question or objection that you have to the alternative form?

Mr. BROWNELL. I myself believe that the experts in the field largely have come to the conclusion that the alternative proposal to leave everything to a statute would open the door to a plan which did not protect properly the constitutional principle of separation of powers, and that in the original Constitutional Convention and throughout our history that separation of powers has been deemed so important that it belongs in the Constitution.

Mr. CHELF. Mr. Hungate?

Mr. HUNGATE. General Brownell, I direct your attention to section 5 dealing with the question where presidential disability has been established and he seeks to return to the duties of his office.

As I understand this, the Vice President and the majority of the Cabinet might believe that he was still incompetent, and it could be that 65 percent of the Congress would believe he was incompetent and yet he would, with the concurrence of 35 percent of the body, resume his office.

I am just wondering about the use of the two-thirds rather than the majority. I notice in House Joint Resolution 139, which has been discussed before, Congress is given some initiative. It is to be determined in that case by majority vote. I wondered what your thoughts were on the distinction between the two-thirds requirement as opposed to a majority requirement.

Mr. BROWNELL. I think the reasoning back of the two-thirds was for the legislative branch to upset the action of the executive branch under these circumstances there should be very definite feeling in the Congress that they should move into the situation. I think that is the basic reasoning behind the two-thirds rather than the majority. Mr. HUNGATE. Thank you very much.

Mr. CHELF. Mr. Tenzer?

Mr. TENZER. Would it be your view that the suggested instances of irresponsible action and intrigue would fit into that area of 10 percent that we would be unable to cover in a constitutional amendment, and that perhaps these situations may never arise that call for immediate action?

Mr. BROWNELL. Yes.

Mr. TENZER. I also would like to congratulate the distinguished member of the bar from New York and the distinguished former At

torney General for the concise manner in which the testimony was rendered, particularly the clarity of his answers, and his patience as well.

Mr. BROWNELL. Thank you very much.

Mr. CHELF. Mr. Jacobs?

Mr. JACOBS. I would simply like to thank Mr. Brownell for helping us today.

Mr. CHELF. We will adjourn

Mr. BROWNELL. May I say, before you adjourn, I am delighted to see you again. You were my first congressional conferee when I came to Washington, and I remember very well the tremendous help that you gave.

Mr. CHELF. I look upon it with a great deal of pleasure, and it has certainly been to my gain-I may say that. Our friendship, and the fact you have come here today proves to me once again-if there was any doubt, and certainly there has been none that you are a great American in my book. You made an outstanding Attorney General.

I want to apologize profusely for not having been here when you began your statement, but I have hurriedly read through it, and on page 3 I notice the four musts that you recommend there.

1. The need for prompt action is overwhelming and recent tragic events have made it clear that failure to act would be recklessly gambling with the stability of our Government.

I want to say I could never possibly agree with you more than that. I think that is the crux of the whole thing, truly I do.

Mr. BROWNELL. I do, too.

Mr. CHELF. There is no doubt about it. Even if we act and do something that is wrong, we still ought to try; we ought to make an attempt. Later we can modify, change or amend, or correct it. I think only time will prove just which method would be the right one and maybe do the job but, overall, I want to agree with you heartily and thank you profusely for coming. It is always a pleasure to see you, and God bless

you.

Mr. BROWNELL. Thank you.

Mr. CHELF. We will recess until 2 o'clock.

(Whereupon, at 12:25 p.m., the committee recessed to reconvene at 2 p.m.)

AFTERNOON SESSION

The CHAIRMAN. The committee will come to order.

Is there anyone else here beside Mr. Horton?

Mr. HORTON. Mr. Robison is here, too.

The CHAIRMAN. We will hear you, Mr. Robison.

STATEMENT OF HON. HOWARD W. ROBISON, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. ROBISON. Mr. Chairman, and members of the committee, I am pleased at the opportunity to be here before your committee in order to express my strong support of your current effort to find an acceptable and workable solution to the vexing problem of presidential inability.

During my 7 years of service in the Congress, the lack of any formal procedure for dealing with such an emergency situation has become of increasing concern to me, and for the past three Congresses, I have introduced legislation to deal with the problem.

As you are aware, the Congress has failed to act, to date, in dealing with this problem because of a continuing argument over two points. First, whether article II, section 1 of the Constitution now gives the Congress the authority to deal with the problem by simple statute or whether a constitutional amendment is needed.

Secondly, whether or not a constitutional amendment is needed, what procedure or means should the Congress provide for determining presidential inability and its end of duration. Therefore, I should like to speak to the nature of the action I believe we should take.

First, to allay any possibility of challenge or illegality, I believe a constitutional amendment should be enacted.

I believe, however, and favor strongly, that such an amendment must be simple and clear in its intent and should not include the mechanism for determining presidential inability. Such an amendment is House Joint Resolution 294 which I have introduced in this Congress and which provides:

In case of the removal of the President from office, or his death or resignation, the said office shall devolve on the Vice President until the inability be removed. 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 be President, or in the case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress shall by law provide.

The language of this amendment has been approved by the American Bar Association and many other interested organizations and, in addition, it is substantially the language which the then-Deputy Attorney General, Mr. Katzenbach, strongly supported in hearings before the Senate Judiciary Committee in 1963 and 1964.

The CHAIRMAN. Of course, he has changed his point of view now. Mr. ROBISON. Well, I understand he may have, but he certainly made a strong statement at that time pointing out to us the lack of wisdom in loading the Constitution down-and I am quoting him, now-"by writing detailed procedural and substantive provisions into it."

The CHAIRMAN. Well, he takes the position now that from the practical standpoint, in view of the fact there is such an overwhelming consensus for a constitutional amendment, he feels he has to bow down to the inevitable and accept the constitutional amendment idea.

Mr. ROBISON. I favor the constitutional amendment, too, Mr. Chairman. I want to make clear that I do, but I think the procedures and methods to determine inability and so forth, should be prescribed by a separate statute, and I would like to speak to that point now, if I

may.

As I said, I think that the specifics of the method for determining the inability and its termination should not be "frozen" into the Constitution thus making them extremely hard to alter if, in the future, we find that a constitutionally provided method is faulty.

Now, as to the method I believe worthy of consideration, I respectfully direct your attention to the provisions of House Joint Resolution 293 which I have introduced in this Congress. My plan declares that the determination of inability of the President or Vice President is a political decision based upon the best, most impartial, and nonpartisan expert medical opinion available and that there should be an agency or instrumentality of Government, in which the minority party should have representation, created for the purpose of determining the inability of the President and the termination of the period of disability. It proposes the creation of a Commission on Presidential Disability composed of the Secretaries of State, Treasury, and Defense, the Speaker of the House, and the President pro tempore of the Senate, and the majority and minority leaders of both the House and Senate, with the Vice President, or the Speaker, if there is no Vice President, being the nonvoting Chairman.

I shall not labor you with other details of my proposal, except to say that it does, in my view, provide for nearly all of the contingencies, including the presidential declaration of his own inability and of its end, the power of the Commission to declare the President unable to perform his duties, and it also empowers, Mr. Chairman, the Commission to issue a declaration that the President is alive in the face of circumstances which might lead to a presumption of his death. I feel the latter contingency is important in view of the perilous nuclearthreatened world in which we live.

Though I believe in my plan, I am not particularly wedded to its details but I do strongly believe that congressional action on this subject should be in the form of a constitutional amendment plus a separate statute, the first giving us the legal basis for acting and the second outlining the methods for dealing with the problem.

There might also be a temporary benefit to this approach. The legislation setting up the Commission would take effect as soon as enactedit would be available for our use in case it was needed during the interim before a constitutional amendment was ratified by the necessary two-thirds of the States. Though it would not, at this point, be based on the authority of an actual constitutional amendment, its provisions would have far more validity in the event of emergency than the present informal agreements between President and Vice President which have existed for the past several years and which have rested, I think, on an extremely doubtful premise that an emergency problem could be so handled.

Mr. Chairman, I deeply hope this committee will approve the constitutional amendment plus legislative method approach, but whatever your decision, I expect to support it because I firmly believe that we must take action this year to block the existing loophole in our constitutional and governmental structure.

I thank the committee for permitting me to testify before it today. The CHAIRMAN. The main objective of your bill is to set up this Committee on Disability of the President.

Mr. ROBISON. Yes, sir. I think the difference in it as compared to others is that it does bring into the decisionmaking process representation from the minority party, whichever party that may be at the time, because I do think that what we would face would be not just a factual or medical situation, as I said, but also in the nature of a political

decision in which the people of the United States ought to be able to participate to the fullest extent possible through their representatives. The CHAIRMAN. Who would be in control of this Committee so far as votes are concerned-the executive or the legislative? I think the legislative would be in control would it not?

Mr. ROBISON. Well, the Secretary of State, Treasury, and Defense, 6 to 3, Mr. Chairman, the way I read it, with the legislative being in control.

The CHAIRMAN. You have 10 members, haven't you? Five legislative

Mr. ROBISON. Well, the Secretaries of State, Treasury, and Defense, Speaker of the House and President pro tempore of the Senate, majority and minority leaders of both the House and Senate-there is the extra four-with the Vice President or the Speaker, if there is no Vice President, serving as nonvoting Chairman.

The CHAIRMAN. Would the Chairman have a vote?

Mr. ROBISON. The Vice President would serve as Chairman, but as a nonvoting Chairman to eliminate the possibility that his vote might be questioned in certain aspects, as I am afraid we may always have a problem here.

The CHAIRMAN. So that really is nine votes, and the legislative would have five out of nine.

Mr. ROBISON. In section 4(a), page 3, my bill says:

After so convening, the Committee may, by a vote of not less than five of the members thereof, issue a declaration that the President is unable to discharge the powers and duties of his office.

The same procedure would apply for determining the end of the period of disability.

The CHAIRMAN. Of course, in our history we have had some very peculiar situations develop, like in the Johnson administration where the legislative branch was in absolute control. If you had this, they would be in control of the Commission beyond any particle of doubt. Mr. ROBISON. Well, Mr. Chairman, in defense of that situation it strikes me that these people are elected officials as compared to the appointive representatives from the executive offices or of the Cabinet as has been suggested in other plans, and I think there is something to be said for this approach.

The CHAIRMAN. Counting again-I am getting a recount-I think you have six from the legislative branch. We left out the President pro tempore of the Senate.

Mr. ROBISON. There are six, Mr. Chairman-there are six.

The CHAIRMAN. There are six, not five. There would be a predominance of the legislative branch of Government. There would be six votes of the legislative branch and three of the executive branch.

Don't you think that is a rather strong preponderance in favor of the legislative branch, in spite of the fact that those men are elected by the people?

Mr. ROBISON. Well, as I said earlier, Mr. Chairman, I am not wedded to this sort of a mix, but I do feel quite strongly that there should be a mixture of legislative as well as executive officials serving on whatever commission or committee is eventually agreed upon.

The CHAIRMAN. Don't you think that the members of the Cabinet are rather closer to the President than the members of the legislative

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