flexible. Then in the enabling act that would be passed by the Congress to carry it out, that could be defined, sir. Mr. ASHMORE. I think that sounds reasonable. Mr. PETERSON. On page 2, Mr. Ellis, it says- Mr. PETERSON. Yes. Referring to the 17th amendment to the Constitution, which provided the basis for continuity of the Senate, "that amendment enables the State legislature to empower the executive authority of the State to fill vacancies by appointment until elections are held." My question is directed this way, as I read House Joint Resolution 91, it is blanket authority for the Governor, "the executive authority of the State shall have power to make temporary appointments." I am wondering if there is not a little conflict in there of States' rights. Mr. ELLIS. My counsel mentions, Mr. Congressman, that there is admitted here a hiatus, where we skip over the proposition of having the State legislatures make this recommendation. Mr. PETERSON. I was not so concerned with the recommendation. Mr. ELLIS. Yes, sir. Mr. PETERSON. As I was a member of my State legislature, I feel the main point is that the States have the right to legislate themselves the method of picking the successor. It seems to me there is a hiatus in here someplace. I am just wondering whether the legislation, the constitutional amendment, would be set up in such a way that the State legislatures would adopt a uniform, or more or less uniform, provision relating to the actual appointee. We had a previous question over here by Mr. Libonati, and of course, I have not had a chance to look into it. I am curious about it. Mr. ELLIS. This resolution, of course, lifts it out of the State category entirely and places it in the hands of the Chief Executive or his successor. I do not think in this particular area in considering the bill No. 91 that we would really have to go into that insofar as the constitutional amendment is concerned. Mr. LANE. Mr. Ellis. Mr. ELLIS. I do agree with you, sir, that we could strengthen it to cure that hiatus by legislation, but not by amendment to the Constitution. Mr. LANE. Do you think there should be something in here about the time limitation for the Executive to name these appointments for these temporary Members of the Congress? Mr. ELLIS. Yes, I heard your questions directed to Congressman Celler. Mr. LANE. Yes, that is right. Mr. ELLIS. You thought 60 days was too long for the President to act on the matter and it should be reduced, that time period should be reduced. You could say "within the 60 days," or you could say "as soon as," "immediately," or "not later than 60 days thereafter," or however else you wanted to express it. I think that would be an improvement to the statute, sir. Mr. LIBONATI. Mr. Chairman, I am apprehensive of the policy that would result from a Governor, who might be of the opposite party, having been vested with this power to appoint; I wonder if it would not in some way have an effect upon the legislative prerogatives of the majority party. That is why I suggested that the legislature, either house, senate or house, at the State level, would have the right to make recommendations to the Governor or some such limitation. Because we realize that after all policy and government are correlated in accordance with the attitude of the parties involved, either the majority party or minority party. We must accept this one fact that a devastation may destroy most of the Members of the House of Representatives. Therefore, a whole administrative policy might be abandoned, destroyed, or interfered with; let us say interfered with. That is important because in time of stress and emergency, a complete reverse may occur in the thinking of the legislative body at this level, which in effect affects the Executive and administrative action on the national level. Mr. LANE. I must say, Mr. Libonati, I was thinking along the same lines, because I know in my State, my Governor is of one party and the Governor's council that approves these appointments is of another party. I can see where we may have some conflicts there. Mr. PETERSON. Mr. Chairman, whatever amendment is finally drafted, before passage, it will have to go to the legislatures anyway for ratification. I am wondering whether some thought should not be given to this precise problem with recommendations on how that should be. Mr. LANE. I think it should be. I would like to ask this, Mr. Ellis, of these four bills before the committee for consideration this morning, which of the four do you prefer? Mr. ELLIS. We prefer, sir, 91, the Celler bill. Mr. LANE. That is the Celler bill. Mr. ELLIS. It seems simpler. Mr. LANE. Yes. Mr. ELLIS. Might I be permitted to add, Mr. Chairman, I do not think there would be any political parties in event of a nuclear attack. I do not mean political parties as such will be destroyed, but I think we will all be Americans struggling to carry on government under very adverse circumstances. I question the validity of proceeding to place any restraint under this constitutional amendment. If restraint is placed, it should be placed in an act that could be modified in the event it is found to be unworkable. The amendment takes, as you know, sir, much time to circulate around the States to get the requisite three-quarters majority. Mr. LANE. Now, supposing under the Celler bill the House of Representatives was reduced to, say, 50 percent. Is it not a fact that that 50 percent could go on and legislate and do their work even in the event of a disaster and without legislation of this type? Mr. ELLIS. Yes, sir, but that 50 percent might be consolidated, we will say, in Chicago, New York, San Francisco, and Los Angeles, and it is not Mr. LANE. Not spread out. 75586-61--4 Mr. ELLIS. It is not proper. Mr. LANE. Are there any further questions of Mr. Ellis? Mr. LANE. Now, does your counsel, Mr. Kendall, wish to make any statement at this time? General counsel? Mr. KENDALL. No, sir, Mr. Lane, except perhaps to comment that the draftsman of the bills assumed that since 49 of the States had passed the authority to the Governor, that the legislatures, if it were given them, would probably do the same thing. This is simply an assumption that that is the way it would be handled in the States. I believe this to be the case, of course. I did not draft the bills. Mr. LANE. I might say, Mr. Kendall, if you have any suggestions as to the wording or the phraseology of the bill, I think it would give us help. Or if you think some amendments were needed, we would be glad to have them. Mr. KENDALL. I would be happy to share them with counsel for the committee. Thank you, sir. Mr. LANE. Mr. Phillips, do you wish to testify? Mr. PHILLIPS. No, sir, I just appreciate being here this morning, sir. Mr. LANE. The committee appreciates the fact that three of you are here to give us your help and your assistance on this legislation, which we feel is much upon us. Mr. ELLIS. Yes, sir. Might I ask, Mr. Chairman, 60 days seems a little bit unduly long, would the Chair have something in mind as to a period of time in which the Governors would be required to act? Mr. LANE. We want to get the suggestions and the recommendations of all the witnesses here. Mr. ELLIS. Yes, sir; and then you will make a determination. Mr. LANE. For determination of the committee. Mr. ASHMORE. Mr. Kendall, it just occurred to me, article I, section 5, of the Constitution, provides that the House of Representatives shall be the judge of its own Members. The Senate shall likewise be judge of its own Members. Is there a possibility of any conflict there? Or should article I, section 5, also be amended to make the proper provisions there? Mr. KENDALL. I do not think so, sir. Mr. ASHIMORE. Suppose the House of Representatives-and under this it could do so, section 5, article I-refuses to seat a Member appointed by the Governor of any State? Mr. KENDALL. It would have the same authority as it presently has with respect to elected Representatives. I think that should probably continue, sir. I would not expect a House to do anything different in the situation we are imagining, a situation of great disaster, than it would do today. In any event, I would not want to deprive the House of that privilege if it felt it necessary to do so. Mr. LANE. That is the prerogative they have at the present time and you would advise to leave that alone? Mr. KENDALL. I would not disturb it, sir. Mr. ASHMORE. You do not think it would be necessary Mr. KENDALL. No, sir. Mr. ASHMORE (continuing). To make any change? Mr. KENDALL. No, sir. Mr. LANE. If there are no further questions, we appreciate your attending. Mr. ELLIS. Thank you very The next witness is Mr. Nicholas deB. Katzenbach, the Assistant Attorney General, Office of Legal Counsel, Department of Justice. STATEMENT OF NICHOLAS DeB. KATZENBACH, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE; ACCOMPANIED BY CHARLES SIMMS, OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE Mr. KATZENBACH. Mr. Chairman, I am accompanied this morning by Mr. Charles Simms, who is an attorney in the Office of Legal Counsel in the Department of Justice, and who has great familiarity with emergency legislation and emergency proposals of this kind. Mr. LANE. Thank you. You may proceed, Mr. Katzenbach. Mr. KATZENBACH. Mr. Chairman, I do not have a prepared statement. I do, however, have here the position of the Department of Justice with regard to these proposed amendments, and I would like to submit these to you. (The documents follow :) Hon. EMANUEL CELLER, DEPARTMENT OF JUSTICE, Chairman, Committee on the Judiciary, Washington, D.C. DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on House Joint Resolution 29 and House Joint Resolution 508, resolutions to amend the Constitution to enable the Congress to function effectively in time of emergency or disaster and House Joint Resolution 74, a resolution proposing an amendment to the Constitution of the United States to enable the Congress, in aid of the common defense, to function effectively in time of emergency or disaster. The Constitution, as amended by article XVII, provides that the Senate of the United States "shall be composed of two Senators from each State, elected by the people thereof ***. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." However, with respect to Representatives, the Constitution provides in article I, section 2, "The House of Representatives shall be composed of Members chosen every second year by the people of the several States ***." Section 2 also provides that "When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." House Joint Resolution 29 and House Joint Resolution 508 would amend the Constitution to provide that, in the event of a "national emergency or national disaster" where the total number of vacancies in the House of Representatives exceeds 145, the Speaker of the House, or the Clerk, or a member chosen for such purpose by the House, shall so certify to the President, who shall issue a proclamation declaring the facts recited in such certificate. Thereafter, the executive authority of each State would be authorized to make temporary ap pointments to fill vacancies in the representation from his State in the House of Representatives exising at any time within 90 days after the proclamation is issued. Persons so appointed would serve until the vacancy is filled by election as provided for by article I, section 2, of the Constitution. House Joint Resolution 74 is similar to these proposals except that it provides that after proclamation by the President that vacancies in the House exceed 145 "by reason of the occurrence of acts of violence during any national emergency or national disaster," the executive authority in each State shall have power to make temporary appointments to each vacancy "by appointment of the individual named to him by the central committee of the political party to which the deceased Member belonged and who is otherwise properly qualified." While the Constitution has provision for dealing with vacancies in the Senate, other than through the time-consuming election process, there is no such provision with respect to vacancies in the House. The Supreme Court in United States v. Classic (313 U.S. 299), made it clear that elections are required for Members of the House of Representatives. The need for a constitutional amendment, especially during a period of national emergency or disaster, is pointed up by the critical world conditions today, and the ability of some nations, through the use of atomic and hydrogen devices, to wreak mass destruction in target areas. The Department of Justice does not object to the enactment of legislation of this type. However, it is suggested that any such amendment to the Consitution not be limited to the particular situations covered by these resolutions. The amendment could properly grant a general power to fill vacancies which occur in the House. Then, when the need became apparent, implementing legislation could be enacted to cover a given situation such as evinced by these resolutions. The Bureau of the Budget has advised that there is no objection to the submission of this report from the standpoint of the administration's program. Sincerely yours, BYRON R. WHITE, Deputy Attorney General. AUGUST 22, 1961. Hon. EMANUEL CELLER, Chairman, Committee on the Judiciary, DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice on House Joint Resolution 91, a resolution to amend the Constitution to authorize Governors to fill temporary vacancies in the House of Representatives. The Constitution, as amended by article XVII, provides that the Senate of the United States "shall be composed of two Senators from each State, elected by the people thereof ***. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." However, with respect to Representatives, the Constitution provides in article I, section 2: "The House of Representatives shall be composed of members chosen every second Year by the People of the several States ***." Section 2 also provides that "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." The proposed amendment to the Constitution would provide that whenever the total vacancies in the House of Representatives exceed one-half of the authorized membership, for a period of 60 days thereafter the executive authority of each State shall have the power to make temporary appointments to fill any vacancies in the representation from his State in the House of Representatives. The amendment also provides that such appointee shall serve temporarily until the vacancy has been filled by an election as provided for by article I, section 2, of the Constitution. While the Constitution has provision for dealing with vancancies in the Senate, other than through the time-consuming election process, there is no such provision with respect to vacancies in the House. The Supreme Court in United States v. Classic (313 U.S. 299), made it clear that elections are required for |