What you suggest may be a disadvantage, but there are also advantages. For instance, there would not be the present perpetual opposition between the Presidency and the leaders of Congress. They, together, would be involved in large legislative proposals. They would have been elected on one ticket.

You might say that they might propose projects prematurely and pass them too rapidly, but the Senate I suggest would be able to moderate any precipitate legislation.

If it is true that the proposals to change the Presidency do arise because it has been felt that the President has accumulated too much power, it has to be recognized that the Congress has been permissive. It has sloughed off many powers in the last 25 years. It has set up many regulatory commissions, for instance, and nothing in the Constitution contemplates such a delegation.

Such delegations are legislative responsibilities, not presidential initiatives. There have been a number of resolutions declaring emergencies, and there is nothing in the Constitution concerning emergencies either. Successive Congresses have simply delegated their powers to the President whenever there have been national difficulties. Every time the Congress does that, there is a certain lodgment of power in the White House. It is not because the President particularly wants it. It is because there has seemed to be no other way.

If we had a different kind of Senate, some of this emergency power could be shared by those people who would be the President's peers because they too would be chosen by all of the people and not by just a few constitutents, and would represent the Nation and not just States or districts.

Senator, I realize that this is getting to be a pretty complicated exposition and perhaps I have gone far enough but you will see more of this in my statement.

Do you have any further questions?

Senator BAYH. The one factor of your proposed constitution as I have read it, that concerns me the most-I mean, I certainly am not opposed to innovation and I am thoroughly studying new proposals to see if perhaps the congressional structure could be made more responsive and more effective-but what really concerns me is the fact that aren't we, under that constitution, really dividing the present awesome powers of the Presidency into three separate powers? The way I understand it, someone else is going to be party leader, the President will be policymaker and Chief of State, and the third person will be the administrator.

Mr. TUGWELL. The answer to this is that the President, as Chief Executive, could be separated into two parts. He has to deal with the Treasury and of course the Department of Justice, which is his law department, and with the military because these I think are in quite a different category from what can be called the service departments: Agriculture, Commerce, Interior, and the other agencies. These require an administrator and not the close attention of the Chief Executive.

The President's responsibility for them in the last 25 years has been greatly lessened. I noticed the other day that there was criticism of the Department of Agriculture's Meat Inspection Service. I was interested because I used to be under the Secretary of Agriculture. It

occurred to me to wonder whether President Nixon even knew that the Department of Agriculture inspects meat. I wouldn't be surprised if he didn't know it and if it was a surprise to him to find out there was something wrong in its operations. There are so many of these situations that we may as well recognize reality and relieve him of duties he does not and cannot carry out. There are so many different activities in the Department of the Interior and the Department of Agriculture that no President could possibly keep control of them.

We can't expect a President, who is responsible for all of our foreign policies, and for the health of the economy, and for welfare, to know what goes on in all the service departments. He should not be expected to administer them.

Senator BAYH. Who would be responsible for it under your new constitution?

Mr. TUGWELL. I think the Congress should be responsible for delegations and for making general rules.

Senator BAYH. Congress should be in charge of administering meat inspection?

Mr. TUGWELL. No directly, of course, but through other administrators than the President.

Senator BAYH. You see what concerns me is that I am a legislator by trade but I would hate like the dickens to think of trying to administer a program like

Mr. TUGWELL. I don't mean the Congress should administer anything. The responsibility should be with an administrator who has been elected but the delegated powers should be defined by the Congress.

Senator BAYH. The administrator would be elected by whom?

Mr. TUGWELL. The administrator might be, as I have suggested, a vice president elected with the President. Perhaps that is not a good way; but I think we do have to try to find some way to relieve the President of the responsibilities that I know that President Roosevelt couldn't carry out. And I believe others following him have not. Staffs are organized and they do what they can; but all real problems fall to the President.

Senator BAYH. Would that executive president or executive vice president or whoever it is, could that person be appointed by the President?

Mr. TUGWELL. It could be done either way. He could be elected with the President; but perhaps it might be better to have him appointed by the President.

Senator BAYH. Senator Fong?

Senator FONG. You stated that the Congress has sloughed off its powers, many of its powers, by creating bureaus and departments and agencies.

Do you feel that Congress should take some of those powers back? Mr. TUGWELL. When the Congress sloughed off its powers, it sloughed them off to agencies of its own making. These are mostly in the regulatory bodies, of course, but every time there is an emergency, Congress passes some new powers to the President and they are likely, some of them at least, to stay there.

Senator FONG. And when he creates an agency? When he creates an agency, it gives the President the power to appoint in that agency. Actually makes it an executive agency, doesn't it?

Mr. TUGWELL. Well, I am not suggesting that the Congress ought to be an administrator you understand.

Senator FONG. NO?

Mr. TUGWELL. Only that it ought to accept the responsibility belonging to it. The original theory was that the Congress would make policy and the executive would carry it out. That is what the Constitution implies.

We know, however, that it isn't done that way any more. Policy is made very largely by the President who is elected, with his party, to carry out a program. I would like to see this recognized and properly organized.

Senator FONG. You stated you believe in a strong Presidency. What added powers would you give to the President?

Mr. TUGWELL. He would, as Chief of State, be responsible for foreign policy and for general executive supervision of the Government without specific responsibility for the administration of the service departments. He wouldn't have any added powers. He has enough power

now.

Senator FONG. You think he should use it because there are so many things to do, that he should concentrate only on certain things that he should do and leave the administration to others?

Mr. TUGWELL. If you look over the last 25 years, it is apparent that in many instances powers allocated to Presidents have been used unwisely. That was perhaps because there wasn't more than one person involved in making the decisions. I would like to see that changed. I would like to see a changed Senate involved. It would be a smaller one and it would have the responsibility to all of the people as the President does and not just to States.

About life terms: What I hope for is some way of making the Government responsible to all of the people. There is here a contrast between an additive and a holistic philosophy.

In the one it is assumed that many representatives of different interests bargaining with each other will somehow produce something good for all. That may have been appropriate for the 18th century; but it is no longer so. I would like to see a legislative body representing national, not particular interests here in Washington.

Senator FONG. So, you feel that the present representation by Senators and Congressmen actually does not fit the present situation? Mr. TUGWELL. Yes.

Senator FONG. Thank you very much.

Senator BAYH. Thank you, Mr. Tugwell, as I mentioned earlier, I do appreciate your efforts and the whole committee does. It was especially good of you to come from California to join us.

Mr. TUGWELL. Thank you.

STATEMENT OF THOMAS CORCORAN, FORMERLY AN ADVISER TO PRESIDENT ROOSEVELT, NOW IN PRIVATE LAW PRACTICE

Senator BAYH. Our next witness this morning will be Mr. Thomas Corcoran, who is a distinguished member of the bar in the Nation's Capital and was a close adviser and confidant to President Roosevelt. He had a particular voice in the third term of President Roosevelt.

We appreciate very much your taking the time to let us have your thoughts on this business of the 6-year term for President, sir.

Mr. CORCORAN. Thank you, sir, I would like to say that I think the witness who preceded me was a great catalyst in the politics of this country and is a great scholar.

I will be brief. The constitutional amendment method of meeting particular problems of the country is an inflexible method which (a) is very hard to reverse, (b) builds up unforeseen vested interests in its "principle," and (c) may have side effects hard to foresee.

I began my career as a district attorney under a Republican district attorney in New York during the Prohibition era. The 18th amendment took the 1932 Depression to repeal it. It had as a side effect the creation of the liquor crime syndicates which have now become the drug crime syndicates and the Nation's true No. 1 problem. Although this immediate proposal would probably not have that character, it would be a precedent in the use of the hard-to-reverse constitutional amendment to reach problems which other parts of the machinery of the Government can more flexibly solve.

Second, this particular amendment creates a precedent in principle for truncation of the term of service of any officer to 6 years-even including Senators, even including the most distinguished sponsor of this amendment. There are too many instances including even the distinguished sponsors of the proposed amendment whose usefulness testifies to the importance of continuity of experience in government. Third, there are glaring instances in American history where it would be a tragedy to lengthen the 4-year term for some President and a blessing that it was not in the way of the continuity of another President, for example, Warren Harding and FDR.

Four, it is impossible to take politics out of politics. And in the balance of powers between the executive, the legislature, and the judiciary the lameduck character of any President elected for one term only will put him at a distinct disadvantage in his leadership in response to his election mandate both with the always changing Congress itself, and even more importantly, with the Federal bureaucracy which under the civil service laws with protection of indefinite length of service has been finding itself more and more in a position to thwart the will of the President as well as of the Congress.

Five, lengthening the term to 6 years reduces the submission of the Executive to the judgment of the people with present 4-year elections. As it stands the U.S. Constitution has been criticized in contrast to the British parliamentary system as not being quickly enough responsive to the people. Extending the President's election to 6 years will make it even more unresponsive while at the same time make the lameduck President who is elected less capable of transmitting the mandate he has received from the people into effective action as against both the bureaucracy and the Congress itself.

Six, when in doubt, don't. The present Constitution has shown itself so adaptable in flexible response to any "felt necessities" of the time that where there is any doubt further rigidities in the Constitution difficult to reverse should not be adopted. Well enough should be left. alone. Democracy, as Churchill said, is the "worst form of Government except any other" and what we have now seems to be the "least worse."

The implication of the proposed amendment limiting the President to a 6-year term is based on the assumption that all Presidents of the United States are guided by their desire for a second term and that such desire is bad for the country. There is a further assumption that future generations will be so devoid of wisdom and judgment that they must be protected from exercising their faculties or rights by constitutional amendment. I am of the opinion that the future generations will have the judgment to select a man capable of fulfilling the office of President and the President will be capable of fulfilling it with the best interest of the country in mind.

I have had an illuminating career. I have been a member of a district attorney's office and liaison to the Congress, Secretary to the Supreme Court at the time of Holmes and Brandt, Presidential office liaison both to the Congress in the days of Rayburn and Barkley and to the administrative bureaucracy and I have been generally on the fringes of things as somebody who has lived in Washington many years because I married a Washington girl and have been here for some 40 years.

I think there is enough flexibility in the present Constitution between the courts and the Legislature and the informed public to let us get along with the machinery that we have. As I told you, sir, one thing that frightens me is the difficulty of reversing a constitutional amendment that you find doesn't work.

Of course every man lives with his own experiences, but having lived through the era of Texas Guinan and Al Capone and the rest of themwhen it took a depression to get rid of the 18th amendment—I'm a little bit afraid of irreversible power if we don't have to use it and I really don't think we have to.

Senator BAYH. Well, I share your feeling that we shouldn't use the constitutional amendment unless we have to. That is the ultimate, of course, in the legislative process. But let me ask you this, did you feel the 22d amendment limiting the tenure of the President to two 4-year terms was a good amendment?

Mr. CORCORAN. No, I do not. It all depends on the President.

I had a very interesting experience during the third term campaign of Roosevelt. His opponent, Wendell Wilke, a remarkable man and a good friend but whom I fought to the death during the campaign when he was running as the Republican opposition, came out furiously against the third term principle as his main issue.

But I managed to find one of his speeches at a bankers' dinner where he said, "I am not really against the third term in principle: whether it's good or not depending on who gets it." I think the American people if they find somebody who is as good as Roosevelt for a third termnever mind a fourth-particularly in the kind of crises we were in in 1940-well, that particular third term was certainly a lucky thing that happened to us.

Senator FONG. Following along that line of thinking, I have introduced an amendment to allow naturalized citizens to seek the Presidency. Now, you believe in the commonsense of the American people, if he is a good man, why shouldn't he be elected?

Mr. CORCORAN. I think so too. Wasn't there a problem not too long ago where we did have an eminent candidate for President who was born in Mexico?