Now, in this interim, the President says, "I am not going to take this lying down. I want the Representatives of the people to decide. Congress, tell the Vice President and the majority of my own Cabinet that they are wrong."

Then the Congress decides the matter, forthwith or immediately, as the case may be. All of this time, the Vice President is still able to deal with national emergencies, and if Congress does not deal with this, if they do not support the hand of the Vice President and the majority of the Cabinet, which quite frankly, I think the Vice President and the Cabinet would not act unless they were pretty well sure of the support of Congress-but if they did not, if Congress did not support them, then immediately the power would go back to the President and he could deal with the bombers coming in.

Mr. TAYLOR. If you think they would not do that unless Congress agreed with them, what is the necessity for putting it in?

Senator BAYH. Because we are looking for this one chance in a million, which I think quite frankly will not exist, that there might be a coup agreement between the Vice President and the majority in the Cabinet. I do not know if you were present or not during the summary I tried to make in support of the resolution after the fine presentation by Attorney General Katzenbach and the very lucid colloquy between him and Senator Hruska. This business of taking away the power of a legally elected, lawfully constituted President of the United States, power which can only be given by the people, is of such serious nature that I want to give the people and their representatives the last recourse to say that the Vice President and the Cabinet have acted erroneously. That is the only reason for Congress being in the picture.

Mr. TAYLOR. Therefore, if they have the last recourse, it must be contemplated that they might have different views about it. Senator BAYH. Yes.

Mr. TAYLOR. Therefore, there would be delay.
Senator BAYH. Yes-well, no.

Mr. TAYLOR. I mean your theory that a Vice President's position was jeopardized by a decision of the Congress would have sufficient technical power, that is true; would it be likely that that is a satisfactory way for a government facing a crisis to have a Vice President whose position is jeopardized in that way?

Senator BAYH. You know, if you were Vice President and in a situation like that and the Cabinet supported you, despite this fact, I think you would be in a much stronger position and feel much better about this unusual and uncomfortable position in which you found yourself to be able to say, in addition to the majority of the Cabinet, "I have the vote of Congress." I think you would be in a much stronger position.

As somebody mentioned in the testimony this morning, that in the white glare of publicity which Mr. Scherer and others give to this subject, it is going to be obvious if someone is mentally ill or physically incapable of handling the powers and duties of the office. The Vice President and the Cabinet would not dare to make this decision unless it was obvious not only to the public but to the Congress.

Mr. TAYLOR. Going back to what the Senator from Nebraska said, suppose there was not the requisite number of a vote? Then what would happen?

The Senator from Nebraska suggested the possibility that there would not be a sufficient vote to make a decision. What would happen then?

Senator BAYH. In other words, there was not the necessary twothirds majority to uphold the hand of the Vice President?

Mr. TAYLOR. Yes.

Senator BAYH. And the majority of the Cabinet?

Mr. TAYLOR. Yes.

Senator BAYH. The same thing that happened when the effort was made to impeach former President Johnson.

Mr. TAYLOR. The impeachment failed.

Senator BAYH. So would the effort to retain power on the part of the Vice President. The President would be reinstated.

Mr. TAYLOR. Then following your suggestion that it is imperative or important that the elected Members of Congress have a final say about it, would that be satisfactory if they had exercised their final say in an opposite way to what the Cabinet and the Vice President had done?

Senator BAYH. It certainly would not be satisfactory. It would not be a desirable situation. This, as I pointed out repeatedly, and will point out again, is a situation for which there is no perfect solution. This one particular case where you have a President fighting openly with a Vice President and the majority of the Cabinet is a rather unfortunate situation, undesirable to say the least.

But I must say again that whenever you have a majority of the President's own Cabinet supporting the hand of the Vice President who says, "Mr. President, we are awfully sorry, but you are not well," it is going to be an unusual Congress that does not go along with that. It would be an unusual Vice President and majority of the Cabinet that would get themselves in that position.

Mr. TAYLOR. Instead of arguing your questions, let me congratulate you on your success to this point and hope that you have further suc

cess.

Senator BAYH. I must admit the conversation I have had with you here and that we have had both privately and publicly have done a great deal, not only to stimulate my thought processes, but have helped us arrive at a decision. I appreciate your coming.

Mr. TAYLOR. Thank you, sir.

Senator BAYH. We have some additional statements I would like to include in the record, one from Senator Pearson and one from Senator Saltonstall, and, without objection, they will become a part of the record.

(The statements referred to follow :)

STATEMENT OF HON. JAMES B. PEARSON, A U.S. SENATOR FROM THE

STATE OF KANSAS

Mr. Chairman, the subject of presidential succession and disability is vitally important to the stability and tranquility of this Nation. The electrifying rapidity of events which centered on November 22, 1963, rivited the attention of the Nation to the need for an effective succession and disability arrangement. That attention, moreover, has remained both fixed and constant in the ensuing 14 months.

The problems surrounding presidential succession and disability have manifested themselves all too often in the course of American history. I need only recall that 8 of the 36 Presidents of the United States have died in office. Eight

Vice Presidents, furthermore, have either died in, or resigned from office. The office of the Vice President has been vacant for 37 of our country's 188 years. For 80 days of the Garfield administration and 2 years of the Wilson administration, the office of President was occupied by a man unable to perform his duties because of physical disability.

In more recent history, President Eisenhower suffered three serious illnesses during his 8 years in office. He was, fortunately, never incapacitated to the

extent of Garfield and Wilson.

The number of succession acts which have been legislated in attempting to resolve the difficulties raised by either death or disability in the office of the President indicate that we have failed to find an appropriate solution to these problems. I think, however, that the joint resolution which the Senate accepted in the final days of the 88th Congress is indeed one of the most meritorious of any such proposal designed to capably deal with the subject matter at hand. As a cosponsor of that proposal, I felt that it was the best of the many that had been offered in the wake of events following the tragic death of President Kennedy.

After considerable reflection, however, I do believe that one aspect of that proposal could be effectively strengthened. For this reason, I have withheld cosponsorship of Senate Joint Resolution 1 until I should have the opportunity of presenting my remarks for consideration.

With respect to Senate Joint Resolution 1, it is possible that the office of the Vice President could, under certain circumstances, remain vacant. This, in turn, could hinder any further transition or succession should it be required. Suppose, for example, that a President becomes disabled for one reason or another. The Vice President would then become Acting President under the provisions of Senate Joint Resolution 1. The office of the Vice President, however, would remain vacant so long as the disabled President continued to live. Unfortunately, it is not inconceivable that an Acting President could also be removed from the discharge of the powers and duties of the office of the President by death or disability. If this should occur, provisions for succession would revert to those of the Succession Act of 1947. Senate Joint Resolution 1, as a result, would represent an improvement to the Succession Act of 1947 under most circumstances-but not in all circumstances.

To guard against the contingency which I have mentioned, I suggest that the provisions of Senate Joint Resolution 1 can be altered slightly in the form of simple additions.

First, I feel there is merit in appending to the present provisions one which states that the Vice President, upon becoming Acting President, nominates an individual to discharge the powers and duties of the office of the Vice President. This nomination, in accordance with procedures in the provisions of Senate Joint Resolution 1, would be subject to the concurrence of both Houses of Congress by majority vote. In this manner, the office of the Vice President would always be occupied and the smooth transition of power assured.

Furthermore, provisions of Senate Joint Resolution 1 which apply to the relation between the President and the Vice President would have to be repeated to apply equally to an Acting President and the person selected to temporarily execute the duties of the office of Vice President. The same procedure would be applied should the Acting President become disabled or refused to declare his disability.

The procdeure for the resumption of the duties of the Office of the President by either the President or the Acting President upon recovery would be identical to those incorporated in the present provisions of Senate Joint Resolution 1.

I feel that the suggestions which I have outlined would tend to insure a continuity of succession when the problem is one of Presidential disability. A few simple additions, as I have previously stated, would be necessary to effect what I have proposed. The intent and the structure of Senate Joint Resolution 1 would not be affected. It would only be extended.

I appreciate the fact that my remarks will be given due consideration by the subcommittee and incorporated in the final form of the resolution if sufficient merit should exist. As an expression of my confidence in the wisdom and ability of the subcommittee, I wish to request that my name be added as a cosponsor to :he measure before us.

U.S. SENATE,

Hon. BIRCH BAYH,

COMMITTEE ON APPROPRIATIONS,

January 28, 1965.

Chairman, Subcommittee on Constitutional Amendments, Committee on the Judiciary, U.S. Senate, Washington, D.C.

MY DEAR MR. CHAIRMAN: Last March I submitted a letter to this subcommittee expressing my views on the dual problems of Presidential succession and Presidential inability. I am taking this opportunity once again to urge the subcommittee to act on the proposal before it, so that our Constitution will be amended to provide for a continuing and uninterrupted executive leadership.

As a cosponsor of Senate Joint Resolution 1, I feel that this resolution offers a reasonable and workable solution to the failure of our Constitution to establish a clear policy on Presidential succession and disability. It provides for (1) a successor to the President should the office of Vice President become vacant; and (2) a formula by which the Vice President, without usurping the power or position of the President, can assume the duties of the Presidential office should the Chief Executive himself be unable to perform them.

On January 20, 1965, we inaugurated a President and Vice President for the next 4 years. It was the first time in 14 months that we had had men in both of our Nation's top offices to supervise the conduct of our domestic and international affairs. We must not allow such a potentially dangerous situation to occur again. The President of the United States is the leader of the free world, and we must insure that he has a constitutional successor at all times, someone who can step in on short notice and assume his duties should the occasion arise. Although it is true that each time the problem of Presidential succession has been considered by the Congress different proposals have been advanced, I think it is fair to say that this resolution, Senate Joint Resolution 1, is not a solution for today alone. It has been subjected to exhaustive discussion and debate around the country as well as here in the Congress. Last year it was approved by the Senate without a dissenting vote. The proposal is carefully designed to endure as our Constitution itself endures, and to meet the eventualities of the future insofar as we can foresee them. I hope that we may now take advantage of the initial progress made last session and approve this proposed amendment to the Constitution.

Sincerely,

LEVERETT SALTONSTALL, U.S. Senator.

Senator BAYH. There have been people who have suggested that the record remain open temporarily while hearings are going on in the House on this subject. I would like to say, however, that the record will not remain open for an extended period of time, because this subject has been discussed at great length and I feel that there is a matter of great urgency.

Let me say that I share Professor Deasy's admonition that we should not act in panic. I do not think that any of the discussions we have had to date or intend to have will be indicative of a panic situation, but I do think that there is a sense of urgency and we shall not leave the record open more than for a very few days. I do not intend to hold additional hearings unless there is a compelling reason that I do not foresee.

If there is no further testimony, the hearings will be forthwith closed. But prior to the termination of the hearing, I would like to pay particular comment in gratitude to our recorder for the extended time which she has put in here and for the fine way in which she has made herself available today.

The hearing is closed.

(Whereupon, at 2:40 p.m., the hearing was closed.)

(The following material was received by the subcommittee and is included in the record at this point:)

STATEMENT OF HON. SAM J. ERVIN, JR., A U.S. SENATOR FROM THE STATE OF NORTH CAROLINA

Presidential succession and presidential disability have long needed constitutional clarification; and, I am pleased to join in cosponsoring Senate Joint Resolution 1, which, I feel, brings these problems as near to a solution as is possible. Also, I would like to express my appreciation to the chairman of this subcommittee for the fine work he has done in developing this resolution and in presenting it to the Senate. He deserves the thanks of Congress and the American people, for without his patience and understanding, the many divergent proposals to solve these problems would never have been melded into a single comprehensive

measure.

I favor a system of filling a Vice Presidential vacancy that is based on the premise that Congress should choose the best man for the office at the precise time the need for selecting a successor arises. That time occurs when the Vice President dies or succeeds to the Presidency. Only then will attention be focused on the qualities necessary to make a good President. This is accomplished in Senate Joint Resolution 1, which provides that in the event of a Vice Presidential vacancy, the President's nominee to fill the vacancy shall be voted on by both Houses of Congress. This method satisfies the requirement, voiced by President Truman, that the "plan of succession be devised so that the office of President would be filled by an officer who holds his position as a result of the expression of the will of the voters of this country"; and by having the President nominate the candidate, it will insure his compatibility with the nominee. Also, the need for continuity is met. There will always be a Vice President who can participate in the creation and execution of the policies of the existing administration.

The Constitution itself provides that the Vice President shall succeed the President in the event of the latter's death or disability. Yet, the language is not free from doubt. Controversy centers on the problem of ascertaining whether the Vice President assumes the office of President or only the "powers and duties" of that office.

When Vice President Tyler succeeded President Harrison in 1841, he assumed the office as President, not as Acting President. And every Vice President to become President through succession has similarly been designated President. However, there are some who still maintain that, constitutionally, the Vice President only serves as Acting President. Senate Joint Resolution 1 lays at rest this ghost that has troubled authorities since the death of William Henry Harrison by providing that the status of the Vice President on assuming the Presidency shall be that of President.

There is one point, which this measure fails to contemplate, that merits grave consideration: Congress at an early date should prepare for the possibility, however remote, of a simultaneous vacancy in the offices of both President and Vice President. The subcommittee eliminated my proposal dealing with this possibility not because the members felt that the proposal lacked merit, but because they felt this measure added to a joint resolution to remove defects in the Constitution might jeopardize the possibility of securing favorable action on two essential changes which everyone conceded must be made.

The section on Presidential inability is particularly desirable since twice in our country's history, with the disability of President Wilson and the lingering illness of President Garfield, situations arose in which lack of provision for Presidential disability led to indecision and confusion which could have had serious consequences for our Nation. This resolution utilizes the Vice President, Cabinet, and the Congress in the determination of Presidential inability, and, thus, represents in the finest manner the system of checks and balances which the Founding Fathers put in the Constitution to insure that neither partisanship nor tyranny could take charge of the American Government. When there is a division between the executive branch and the legislative branch, Senate Joint Resolution 1 prevents such partisanship as existed during Andrew Johnson's administration by not allowing a political party controlling Congress alone to determine whether the President is able to perform the functions of his office. It is imperative for Congress to provide for the eventualities of Presidential inability and Vice-Presidential vacancy, and I sincerely trust that the Senate and the House of Representatives will soon approve this joint resolution by the