PRESIDENTIAL INABILITY FRIDAY, FEBRUARY 14, 1958 UNITED STATES SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS, Washington, D. C. The subcommittee met, pursuant to recess, at 10: 15 a. m., in room 424, Senate Office Building, Hon. Estes Kefauver (chairman of the subcommittee) presiding. Present: Senator Kefauver. Also present: Wayne H. Smithey, member, professional staff, and Jerry A. O'Callaghan, legislative assistant to Senator Joseph C. O'Mahoney. Senator KEFAUVER. We will get started now. Mr. Fowler and Professor Waugh, I am sorry that more Members of the Senate are not present. It is the week of Lincoln's Birthday, and many members are away and some members of the committee are ill, but I assure you that all members will study and appreciate your testimony. We are trying to build a record here of thoughts of our leading citizens and thinkers on this subject. Mr. Fowler, you will be our first witness. Will you come around and sit on this side of the table, please? This is Henry Fowler, a well-known and distinguished lawyer of Washington, D. C. He is senior member of the firm of Fowler, Leva, Hawes & Symington of Washington. Mr. Fowler has held many important governmental positions in various agencies, among which is Administrator of the Defense Production Administration and the former Director of the Office of Defense Mobilization. We have a short biography of Mr. Fowler which will be placed in the record at this point. (The biography referred to is as follows:) Fowler, Henry Hamill, lawyer; b. Roanoke, Va. Sept. 5, 1908; s. Mack Johnson and Bertha (Brówning) F.; A.B., Roanoke Coll., 1929; LL.B. Yale, 1932, J.S.D., 1933; m. Trudye Pamela Hathcote, Oct. 19, 1938; children-Mary Anne, Susan Maria, Henry Hamill. Admitted to Va. bar, 1933; counsel Tenn. Valley Authority, 1934-38, asst. gen. counsel, 1939; spl. asst. to atty. gen. as chief counsel subcom. Senate Com. Edn. and Labor, 1939-40; spl. counsel Fed. Power Commn. 1941; asst. gen. counsel O.P.M., 1941, W.P.B., 1942-44; econ. advisor U. S. Mission Econ. Affairs, London, Enc., 1944; spl. asst. to administr. Fgn. Econ. Administrn., 1945; dep. administr. N.P.A., 1951, administr., 1952; administr. Defense Production Administrn., 1952-53; dir. Office of Defense Mobilization, 1952-53; sr. member Fowler, Leva, Hawes & Symington, Washington, 1946-51, since 1953. Epis. Club; Metropolian (Washington). Home: 509 Queen St. Alexandria, Va. Office: 1625 Eye St., Washington 6. Senator KEFAUVER. He is also a member of the bar of the State of Virginia. Mr. Fowler, you have a statement. The entire statement will be printed in the record, but you may read it or discuss it as you wish. STATEMENT OF HENRY FOWLER, ATTORNEY, WASHINGTON, D. C., FORMER DIRECTOR, OFFICE OF DEFENSE MOBILIZATION Mr. FOWLER. Thank you, Mr. Chairman. I shall attempt to extemporize and discuss the statement rather than read it verbatim. I am very honored to be here as a witness before your subcommittee to participate in your deliberations on this very important question. I am not going to attempt to take up any historical background or analysis of many of the questions because I know you have many scholarly studies that are much more inclusive that are available to you. I want to, this morning, try to be helpful to the subcommittee, and I believe the only way I can be helpful is to try to present a very specific and concrete point of view that would promise a prompt and practical beginning on this very difficult problem. I will say at the outset that it is my opinion it is legal and practical and desirable for the Congress by legislative enactment at this session to facilitate the orderly devolution upon the Vice President of the powers and duties of the President in the event of the President's inability to discharge them, and a resumption by the President upon the passing of his inability. I do not believe a constitutional amendment should be necessary, in view of the very general language of the inability clause which omits any specific method for initiating or determining an inability, and the availability of the so-called necessary and proper clause in section 8 of article I of the Constitution. There are two provisos to this opinion that Congress can act without constitutional amendment. They have to do with the nature of the enactment. The first is that the means chosen by the Congress would be appropriate to the simple objective of facilitating the devolution of powers in question by providing orderly procedures that would be reasonably acceptable to the officials concerned and the public. The second proviso is that the means chosen should not violate the overriding constitutional principle of the separation of powers or disturb any conceivably existing constitutional authority in the President and the Vice President. : This is perhaps the salient point that I would like to bring out in this presentation. I believe this can be accomplished by making the statute and its procedures declaratory and permissive rather than mandatory, and by keeping those procedures substantially within the executive framework. I shall develop this later in my statement. I realize that Congress may deem it wise to dispell any doubts of its constitutional authority to enact this type of law in advance of a judicial test, or perhaps it might wish to make the procedures to be outlined mandatory on the officials concerned, the President and the Vice President, rather than declaratory and permissive. If either of those conclusions is reached by the committee, I would suggest the initiation of a simple amendment to clause 6 of section 1 of article II affirmatory of the power of Congress, precisely along the lines proposed by you, Mr. Chairman, in Senate Joint Resolution 133. That proposal would be in addition to the act of Congress to be discussed. Now my written statement includes an identification of at least four objectives that should be sought to be accomplished by this corrective legislation. Briefly, the act should help to make clear that, in event of a Presidential inability, the Vice President does not become the President, but only an Acting President, assuming the powers and duties of the office temporarily for the duration of the Presidential inability. I believe declaratory action to that effect by the Congress would amount to a legislative construction of the nature of the Vice President's tenure, and would serve to minimize this troublesome question which has helped to plague and frustrate the purpose of the Founding Fathers in providing for effective continuity for the Executive power. Senator KEFAUVER. Mr. Fowler, would you have that apply to the Vice President in the event he takes over upon the death or resignation of the President? Mr. FOWLER. I have not covered that, Mr. Chairman, because it seemed to me that was not one of the more important problems at the moment, but it seemed to me that custom had rather established the fact that in six previous instances where a Vice President has succeeded to the powers and duties of the office, that, in fact, he became the President. I think that the important gap to be filled is a construction of what the precise legal situation is when the Vice President takes over because of an inability, and you still have a living, eligible President once his inability should be removed. That is the situation on which we should be very clear, that the Vice President only assumes the powers and duties of the office, not the office itself, and therefore when the inability is terminated, the President may resume those powers. Senator KEFAUVER. That would not be inconsistent with the custom that has been established of the Vice President taking the oath as President? Mr. FOWLER. Not at all. Senator KEFAUVER. Upon the death of the President? Mr. FOWLER. Not at all. They are two entirely different situations. The second objective is that the act should provide a simple means for devolving temporarily the powers and duties of the Presidency upon the Vice President by act of public written notification by the President himself in cases where he is physically competent and willing to acknowledge his inability. I believe this arrangement which is included in other bills which are before the committee would take care of a great number of likely cases. Senator KEFAUVER. Some have suggested that the President should write the Speaker of the House of Representatives and the President pro tempore of the Senate. Others have suggested he should write the Secretary of State. Do you have any feeling about to whom the letter should be written? Mr. FOWLER. On page 14 under item 2 where I am describing or attempting to describe, or outlining the statutory proposal, it is suggested that the message by the President be transmitted to the Vice President with copies to the President pro tempore of the Senate and the Speaker of the House. I think technically the President would tell the Vice President he wants him to take over and make that a matter of national record by the usual practice of sending a message up to the heads of the two Houses. The third objective of the act should be to provide a method and procedure for the determination of a Presidential inability where the President is unable or unwilling to declare his own inability. The greater part of my comments and statement is directed to that most difficult aspect of this overall problem. Finally, the fourth objective of the act should be to provide a precise method for determining the end of the inability and the return to the President of the powers and duties of his office, after either a voluntary or involuntary inability determination has resulted in the assumption of those duties by the Vice President. Now I should like to turn to what I think is perhaps the most crucial problem underlying this current situation, namely, whether Congress has in the Constitution a basis for taking helpful and corrective action without a constitutional amendment. I believe the chairman knows that there is considerable authority other than the present witness for the proposition that in absence of any specific and well-defined constitutional provision for dealing with inability, Congress could under the "necessary and proper" clause undertake appropriate legislative action. I cite here Dr. Corwin's views from his classic treatise on the Office of the President, and I think he expresses the basic underlying thesis when he says: The framers meant to provide a functioning system of government and presumably did so. At least there is no apparent reason why Congress should take a less vigorous view of its own competence than it would when it provided a method for the settlement of the Hayes-Tilden disputed election in 1877 and therefore prevented a civil war. I have included in my statement a reference to the considerable body of contemporary opinion that existed at the time of the illness. of Garfield and Wilson, that action could be taken under the so-called implied powers of the "necessary and proper" clause. I think the committee is of course aware of the fact that many contemporary scholars have gone on record similarly in the hearings before the subcommittee of the House Judiciary Committee. I think the important thing to note here is that there is an element that is sometimes overlooked in that this "necessary and proper" clause 18 of section A of article I endows Congress not only with the power to make all laws which shall be necessary and proper for carrying into execution the so-called granted powers to the Congress which appear in the first 18 clauses, but also, and I quote: all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof. Now it is the latter part of this "necessary and proper" provision that attention should be directed to, and I suggest to the committee that |