Mr. HYMAN. Yes, sir, and I think it was one of the worst chapters in the American constitutional history.

Mr. KEATING. I think it is very undesirable to have the members of the Court engage in any activities outside of the proper province of the Court.

Mr. HYMAN. I am in complete agreement with you, Congressman Keating. But as I was saying, there is a vital pragmatic factor that is central to the whole question of Presidential inability. It is whether the actual state of the Nation's affairs demand immediate yes or no action from an active President, or whether they permit a period of grace in which no finding of fact need be made about a President's disability, though the Presidency remains in suspension because of the President's actual disability. To demand that the Court take a case of disability in hand on notice of other officers of the Government, is to make the Court, in effect, a judge not of the law but of politics.

Standing to one side, yet indivisible with the substantive merit of any plan that may be put forward, is the vital question of the legalistic form in which the proposed solution to the question of Presidential disability, is encased. This committee, through the force of inescapable necessity, has had to risk the charge that it presumes to consider itself wiser, and therefore better equipped to untie the Gordian knot of a question that baffled the members of the Constitutional Convention.

The CHAIRMAN. We have that always when we have a constitutional amendment before us.

Mr. HYMAN. Yes, sir, and I continue.

The charge is unwarranted. But even so, some of its sting would be eased if the legalistic form containing the solution to the question of disability, at least tacitly acknowledged the possibility that the solution could contain some overlooked defects that would call for swift remedial action as knowledge improved.

What this means in specific terms, is first, an exploration of every avenue by which the spelling out of the procedures to be taken in the case of Presidential disability could take the form of a joint resolution. If for one or another reason, certain vital, and necessary grants of authority cannot be bottomed on this porous framework, then the committee might move on to consider how the spelling out could be accomplished by statute alone. A centering of attention on these first two possibilities seems advisable for it would permit the swift alteration or even the outright nullification of any part or whole of a plan that showed itself a multiplier of constitutional mischief.

Only as a last, desperate, back-against-the-wall resort, would it appear advisable for the committee even to consider the need for a constitutional amendment. The time element required to get such an amendment enacted, is the least of the reasons why the amending process should be resorted to only in extremis. The controlling reasons lie on two different grounds. One is the fact that a constitutional amendment, by its very nature, would rigidify any original error it contained. The other is, that every new comma and period added to the Constitution, not only has a habit of putting a new complexion on every other comma and period of whatever age. The new`additions have a habit of providing a system of sanctions and

prohibitions for a sky-blue range of cases only faintly connected with the subject to which the amendment was originally addressed.

For all the foregoing reasons, of the printed draft measures now before your committee, the one that commends itself to me as the working basis for a solution to the question of disability is the draft of a joint resolution, No. J. 74590-D. It has the virtue of Doric simplicity-plus sufficient flexibility for maneuver, plus the fact that its provisions contemplate the need for swift action in an emergency. It may require some beefing up here and there, though the committee may have already considered the points I should like to raise in a moment, and for good reason, may also have decided that they should be left without formal statement.

Mr. KEATING. I just looked at it hurriedly. It also seems to have the merit of being a short one.

Mr. HYMAN. That is right. I am very much in favor of that, Congressman Keating.

But first I should like to add a passing comment about a point which the text of the resolution does not cover, which it was right in not covering, but which, nevertheless, was featured prominently in much of the public discussions at the time when the Nation was still reeling from the shock of General Eisenhower's heart attack. It was the question whether the Vice President, in the case of a Presidential disability, succeeded merely to the powers of the President or to the office and powers simultaneously.

With respect to this question, there was the opinion of Daniel Webster, voiced in the 1840's, that the powers and office of the Presidency were indivisible; that in succeeding to the one, the Vice President succeeded to both. It has been reported that a similar view, advanced in legal circles at the time of President Wilson's disability, deterred Vice President Marshall from acting in his place; and that this was again true in the recent case of Vice President Nixon's restraint at the time of President Eisenhower's disability. Whatever might be said of Webster's position in the 1840's, and whatever might be said about the history of what prevented two Vice Presidents in modern times from assuming the inactive Presidential crown, it seems to me that section 3 of the 20th amendment in the Constitution clearly separates the powers and office of the Presidency. In this section, the amendment provides that if a President shall not have been chosen before the time fixed for the beginning of his term or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified. None of this would have any meaning if the powers and office of the Presidency, on the Webster theory, were inseparable.

It has meaning only if the Vice President, acting as President until a duly elected President shall have been chosen or shall have qualified, exercised the powers but not the office of the President. To have spelled all this out in legislation when it was already in the Constitution would have been entirely superfluous. On this count alone, whoever drafted Joint Resolution J. 74590-D deserves praise for having read the Constitution as a whole, instead of taking his bearing from syndicated newspaper columns-not of New York Times ownership, may I add.

The CHAIRMAN. I want to state that the credit in that regard goes to Mr. Foley, our counsel, and Mrs. Dick, staff director.

Mr. HYMAN. They are the drafters?

The CHAIRMAN. The drawing up of the draft of that particular legislative item that you mentioned.

Mr. HYMAN. I should like to say that a further ground for commending the draftsmanship

The CHAIRMAN. I think we ought to put in the record at this point that draft which was drawn up by Mr. Foley and Mrs. Dick. Will you read it, Mr. Foley?

Mr. FOLEY (reading):

Joint resolution relating to the inability of the President to discharge the powers and duties of his office.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That in case of the removal of the President from office, or of his death, or resignation, the Vice President shall become President.

SEC. 2. If the President announces that he is unable to discharge the powers and duties of his office, such powers and duties shall devolve upon the Vice President.

SEC. 3. Whenever the Vice President or the person next in the line of succession to the Presidency is satisfied that the President, or the person then discharging the powers and duties of said office, as the case may be, is unable to discharge said powers and duties, such person shall convene both Houses of the Congress and announce that the powers and duties of the office have devolved upon him.

SEC. 4. If the powers and duties of the President devolve upon any person pursuant to sections 2 and 3 of this resolution, the exercise of such powers and duties shall be resumed by the President upon the President's announcement of his ability and intention thereupon to resume.

The CHAIRMAN. Proceed, Mr. Hyman.

Mr. HYMAN. A further ground for commending the draftsmanship of the joint resolution recalls the remark that the founders of our Government showed discretion in what they put into the Constitution, and genius in what they left out of it. In much the same vein, the drafters of the joint resolution showed genius in not venturing to define the term "inability" or how many degrees of it would have to prevail before the substantive provisions of the resolution would become operative. Had they acted otherwise, all that would have become operative would be a Babel of political and legal persons tossing bricks at each other that were meant for use in building a tower reaching to a constitutional heaven.

In its substantive content, the joint resolution says this in effect: First, that the President may declare his own disability if he is in a position to do so; and that upon doing so, his powers and duties shall devolve upon the Vice President. For what my opinion may be worth, let me say that I agree with this. The only question of detail I would raise is whether some consideration should be given to the possibility that the President, on his own recognizances, may declare a fictitious disability in order to avoid the burden of onerous or embarrassing decisions that would then fall automatically to the Vice President.

The CHAIRMAN. If the President would have the temerity to do any such thing he might be subject to impeachment.

Mr. HYMAN. I agree with you, sir, and that is why I say the danger of this happening, may on closer examination be either unreal or may have its own countervailing safeguards. In any case, I raise the problem as one that is worth considering.

In its further substantive provisions, the joint resolution says in effect that a President, on his own recognizances, may declare his disability to be at an end; that he intends to resume his powers and duties, and that his announcement to that dual effect should be conclusive. I agree with the main bent of this provision. The only question of detail I would raise is what happens if the President's version of his recovery is resisted by the Vice President to a point where the latter may refuse to relinquish the powers and duties of the Presidency that had been in his temporary custody.

Mr. FOLEY. Just a moment, Mr. Hyman, at that point, wouldn't it be possible if there was a dispute between the President and Vice President? Congress not being in session-he could summon the Congress in session and they would meet and recognize him as the President of the United States-would that give force to this matter?

Mr. HYMAN. I agree with that and I come to that a little later on. The CHAIRMAN. In the draft that you mentioned, and in which I heartily approve and agree with you, as well as the staff counsel and Mrs. Dick, the provision that the Vice President shall have a right to summon Congress-I don't know whether or not the Vice President has such a right.

Mr. HYMAN. Presumably, Mr. Chairman, he will already have been acting as President.

The CHAIRMAN. Which comes first, the summoning of Congress? Mr. HYMAN. Well, if everything has to be proved, nothing can be proved. He obviously has to act as President.

Mr. FOLEY. That is the first step. He, the Vice President, takes over the powers and duties of the office, and then under his constitutional power he summons Congress.

Mr. HYMAN. That is correct. If one were to be a purist about this, and I recognize the political necessity of drawing the Senate in as part of the body to which the Vice President would report, one might take the position that the House of Representatives should be the sole source to which he would have to appeal.

The CHAIRMAN. Thank you, and I take it upon myself to speak on behalf of the other Members of the House of Representatives.

Mr. HYMAN. It is not meant as flattery, Mr. Chairman, but I, for one, firmly feel that way.

Mr. FOLEY. If you would limit it to the House, you would run into the constitutional block.

Mr. HYMAN. You would not get it past the Senate.

The CHAIRMAN. That is right. It says he shall convene the Congress, consisting of two Houses.

Mr. HYMAN. I am throwing that out in case the Members of the Senate should read the record. I think the drafters of the resolution have been very generous to them.

The CHAIRMAN. Your answer to my question is that he is acting President, and then as such he summons Congress.

Mr. HYMAN. Yes, and if they do not like it, the House can start an impeachment proceedings right there.

Mr. MCCULLOCH. Isn't that an added reason why the Senate is relatively important in this whole proceeding?

Mr. HYMAN. At the end of an impeachment proceeding.

Mr. McCULLOCH. Well, of course, but if there is a person who seeks to usurp the power of the Presidency, you must get at it quickly and you cannot get at it without the Senate of the United States.

Mr. HYMAN. That is correct, but I was thinking about the role of the House of Representatives plays under the terms of a direct constitutional grant in other matters affecting the Presidency. It has the sole right to elect a President in the event no one gets a majority of the electoral vote. It also has the sole right to initiate and vote an impeachment.

Mr. McCULLOCH. Oh, yes; I did not mean to minimize that part of your approach, but to make it complete, it is absolutely essential unless we have some utterly new procedure that the Senate be included and perform its responsible part in accordance with the existing provisions.

Mr. HYMAN. I admit the political force of your argument. Perhaps in suggesting a purist's approach, I was distracted by a desire to rectify what I think has always been a great wrong done to the House of Representatives. The Senate has come to speak of itself historically as the Upper Chamber and I don't understand on what basis they do. It is the coequal chamber.

The CHAIRMAN. Proceed, Mr. Hyman. We had agreed to give you 15 minutes, but this matter is such an interesting and illuminating statement that we agreed to give you more time.

Mr. HYMAN. Thank you, Mr. Chairman. I was speaking a moment ago about the problem of a Vice President's refusing to yield to a President who had recovered from his disability. One solution, of course, might lie in a suit brought by a private person who claimed he was injured because the Vice President exercised unlawful powers. The question of the President's recovery might then be decided as an incident to the suit.

Yet this does not cover the real ground for concern; namely, in the field, say, of foreign affairs, where no private person can put his finger on a specific personal injury, but where the Vice President, clinging overly long to Presidential powers might injure the national interest as a whole. Perhaps, as Mr. Foley said, the fact that the President had the vigor to press his demands against the Vice President would in itself be conclusive proof to the people, to his party, and above all to a Congress with the impeachment weapon at hand, that the President had recovered. This may, of course, be one of those areas where one must admit the possibility of trouble, yet count on a regular attendance at Sunday school to keep the trouble at bay. In any case, here, too, I raise a question that may commend itself to the attention of the committee.

The third and key provision of the joint resolution covers the case when the President is unable to discharge the powers and duties of his office; and presumably, is also unable to declare his disability. Under this circumstance, the text of the resolution would have the Vice President or the person next in the line of succession declare it, subject to this control: that having satisfied himself as to the Presidential disability, such person shall convene both Houses of the Congress and announce that the powers and duties of the Presidential office have devolved upon him.

On first sight and sound, this appears to be the most absurd of all proposals and invites vigorous attack on two grounds. First, the Vice