As early as 1881, Representative Hammond of Georgia envisioned three Vice Presidents and in 1886 Representative Dibble of South Carolina suggested two; a plan reechoed by the then Representative Mike Monroney in 1947 and more recently by former Senator Kenneth Keating of New York.

The argument that no one would be willing to run for such an office is widely mentioned, but in lieu of what the last witness said, the increase in power and responsibility now enjoyed by one Vice President has limited his time and there seems to be enough qualified men who are willing to adopt their party's mandate in this regard.

Surely if the position is made appealing there will be enough candidates. Few have been the instances of a man refusing to run for the Vice-Presidential office as it now exists. I can only list offhand approximately four.

I believe the same could be said of a second Vice President if the position were available and made important. This would make the man known to the electorate before the election and prevent the possibility of the incumbent naming a man who would be generally unacceptable to the country at large although approved by its representatives in Congress for one reason or another.

If I might digress for just a moment, I do not mean to impugn the motives or patriotism of Congress for one minute on this, but an occasion may arise where there has been a bitter internal problem or a bitter controversy between the Executive and the legislative, and there may be there may be an impasse.

Possibly you may consider my line of reasoning out of order as this is no longer a part of this amendment but I suggest it as a substitute. There are undoubtedly good reasons why you may find my ideas unacceptable but I trust that you will give them your fullest thought. I would also prefer that the disability concept be kept as is under the "agreement" status changed, expanded, brought upto-date or refined with the various new administrations that will come in every 4 years.

Whatever your final decision may it be accomplished amicably and justly without any consideration of offices and people holding them at any given moment. Even the office of President has been occasionally filled by men of less than superior qualifications yet we don't consider abolishment of this office because of it.

Let us never be guilty of throwing out the baby with the bath.

Senator BAYH. May I attempt to summarize quickly, as I have understood it, your statement and we shall look to the record again, when I have more time to consider what you have said at a slower pace?

Mr. DEASY. Yes.

Senator BAYH. You feel that the problem of disability is adequately handled in the private agreement between the President and Vice President?

Mr. DEASY. I think that it is or can be or can be without a constitutional amendment.

Senator BAYH. You see no concern about the possibility to which you alluded, that this would be subjected to a court test only at a

time when the Nation is confronted with the crisis. This does not concern you?

Mr. DEASY. I would expect, as was mentioned by some of the witnesses before, the patriotism of the hour would acquiesce in the decision, if the President were disabled and the Vice President moved in. I think the Nation would accept that.

My only problem is it is more a matter of means than end. I think it is basically an executive problem. Therefore, I think the executive branch, and in this case, by "executive branch" I mean Vice President and President themselves, would be able to adjudicate the problem a little better. I admit the Congress is brought in directly by the electoral college and so forth, but I trust that the more separation of powers we have, the better off we may be.

As I say, 99 percent of my case is based upon hypothetical situations, suppositions of what may happen. But the more laws that we make, the more amendments that we make, when we try to tie down these to much, we may get ourselves into a very serious situation.

Senator BAYH. May I suggest that you have been thinking of hypothetical examples, but in the worst hypothetical example, you apply your own reasoning, namely, that you are relying on the good judgment and reasoning of the public of the country, as well as the implications involved. You could come up with almost impossible solutions, the Captain Queeg arrangement, for example. As President Eisenhower suggests don't you have to assume you are dealing with reasonable men.

Only then can we reach a solution. Now, part 2-you suggest then, as I understand it, the election of a second Vice President?

Mr. DEASY. Rather than the appointing, if the Vice President dies and the President is to appoint a successor, I think that this tends to frustrate the original framers of the Constitution.

Senator BAYH. Of course, as you know, you have to get the ratification of the election by the Members of Congress.

Mr. DEASY. Oh, right. As I said, that is where my plan would necessitate, one, an amendment different from your plan, but, B, the heart of your proposed amendment or the committee's I would leave as is under the Executive arrangement. I would try to alleviate the present problems, or the problems that may develop by, No. 1, the creation, and therefore, a constitutional amendment would be necessary, the creation of an automatic successor standing in the wings, elected by the people indirectly through the electoral college, who will be groomed, we would assume, for the position, whom everyone

would know about beforehand.

Senator BAYH. You are aware, of course, of some of our feelings that now the office of Vice President has developed to a full-time job and is not like the description Adams and the rest gave to it; that it would take long, hard thought before you would further dissect this power. But you argued the opposite side and did it very well.

Mr. DEASY. May I just say on that, I do not think, in lieu of what some of the previous witnesses said, and because of their background and experience, and organizations which they represent, more than likely and I would certainly acquiesce in it 100 percent-the amend

ment as proposed here in Senate Joint Resolution 1 will pass. But my main point in my appearance here today is I would like to go on official record as my main interest being that I do not think, No. 1, we should be hasty. I think we are very fortunate in the fact that nothing happened to President Johnson between November of 1963 and November of 1964.

And also, if legislation is not absolutely, positively necessary, possibly-possibly-we can do without it.

Senator BAYH. I agree. I do not believe in legislation just to go through the activity. Some of us feel that the actuarial tables are going to catch up with us. Although what our constitutional forefathers said-we would not lose both the President and the Vice President in a hundred years-is true: we are rapidly approaching the second hundred years, and history has been trying to tell us something and we had better listen.

I appreciate very much your coming. I appreciate the thought and research that has gone into your testimony. I want to read it over again.

Mr. DEASY. May I just say, on behalf of myself and Providence College, I want to thank you for the privilege of appearing here today.

Senator BAYH. Thank you.

Our final witness today is Mr. Martin Taylor, chairman of the Committee on Constitutional Law of the New York State Bar Association, member of a distinguished New York City law firm and, as I said a moment ago, a man who has given a great deal of thought to this problem.

STATEMENT OF MARTIN TAYLOR, NEW YORK STATE BAR

ASSOCIATION

Mr. TAYLOR. After what you have said, Mr. Chairman, I am embarrassed to exhibit my ignorance.

Senator BAYH. The chairman is not convinced that that will be the result.

Mr. TAYLOR. There are really two proposals in your proposed amendment. The first is to provide that there shall always be a Vice President. That is the new idea of the discussions that have taken place over the last 5 or 6 years. It is one that I think everyone approves of. I have as to that only one question-why does it not provide for the period between election and inauguration?

Senator BAYH. May I answer the question?

Mr. TAYLOR. Yes.

Senator BAYH. I am certain you have read the message that the President sent to Congress. He suggests, and I intended to pursue, I hope to consummation, that this matter be dealt with. The reason we did not include this in the present measure-in fact, I think Senator Monroney is one of those witnesses who came before us last year who suggested that we should deal with this on a comprehensive basis. We did not do so and have not done so because constitutional amendments being what they are, requiring two-thirds of each House plus threefourths of the legislatures, are difficult to pass. For instances, I might be in favor of the part on Vice-Presidential replacement, but I am op

posed to the disability provision. I am in favor of both the Vice-Presidential replacement and the disability provision, but I am opposed to this nomination and taking oath of office provision.

Mr. TAYLOR. Is that not true of the other provisions? There are always people who will raise issues about one thing or another, and I would think that that would pass almost unnoticed and cure that lapse.

Senator BAYH. We feel we could deal with these successfully more readily in separate resolutions. It is not in an effort to ignore the problem, because I intend to introduce in the next few days legislation dealing with the whole problem of the actual election of the President and the timespan that exists between the time that the voters say "aye," and the time he says "I do."

Mr. TAYLOR. On that point, you have authority in mind. I thought it was something that should be raised.

Senator BAYH. Yes, because this is a problem, particularly in the day of rapid flight by jet airplanes and the complicated dangers the presidential nominee and the President-elect are subject to. It is a very valid point.

Mr. TAYLOR. The second phase I do not want to take your time by reading, but if you will just note these statements in the testimony before this committee:

In the hearings of June 11 and June 18, 1963, at page 33, the now president of the American Bar Association, Mr. Powell; at page 17 or 18—and if I might quote myself, I say the same thing, that it would be better to leave the working out of the details to legislation rather than putting it in the text of the Constitution. Going back to the statement of Marshall that has been quoted over and over again, only a broad enabling power should be given in the Constitution, not implementation, not detail.

In that connection, I was very much struck with what the Senator from Nebraska said this morning, which is that you have to define "immediately," or you would have a serious constitutional question as to whether there is a power in Congress for a legislative body to make an executive decision. The answer to what he said that was made was that it was not a decision, that it was something that took place where he had to concur or disagree with the previous failure to reach a decision, if you please.

Well, it seems that is just as much a decision as any other decision. If the last thing that had to be done depended on Congress, that is an executive decision. That is deciding a fact of whether a person is able to perform the duties of his office. In my view, that is contrary to the principle that the function of Congress is legislative, not executive.

I think the Senator from Nebraska has sufficiently emphasized that, but I had it in mind before. All I am doing now is saying that I agree with him, so I shall not go further with that.

Senator BAYH. May I ask your permission to incorporate your precious statement?

Mr. TAYLOR. Yes, surely.

Senator BAYH. As I recall, you did a very excellent job in articulating the opposing view.

42-688-65——7

Mr. TAYLOR. You had better limit it, because I find I am a hardened veteran. I have been four times before this committee.

You mean 1963 and 1964?

Senator BAYH. Let me suggest that one or the other of those, both of which I am familiar with

Mr. TAYLOR. Before it is done, let me go through with you what statements I have made.

Senator BAYH. Yes, consult with counsel on this, because you are an avid supporter of this other position, and I think you state it very well and I want the record to show your views.

(The record excerpts referred to are as follows:)

STATEMENT OF MARTIN TAYLOR, CHAIRMAN OF THE COMMITTEE ON CONSTITUTIONAL LAW, NEW YORK BAR ASSOCIATION

Senator KEATING. May I join in welcoming Mr. Taylor? He is one of our most distinguished members of the bar and we will be interested in his views.

Mr. TAYLOR. Mr. Chairman, members of the subcommittee, I came here to listen today. I have no prepared speech, no prepared statement. But as I have been with the court, I think now 7 years, I think that the position which is taken by our committee

Senator BAYH. Excuse me, Mr. Taylor; may I say that if you desire to submit a more complete statement or an abridged statement after your testimony here, we will be more than happy to permit you to do that or have you testify a second time.

Mr. TAYLOR. Surely. Thank you very much, sir.

We agree, I think, that the American Bar having taken the thing up is an extremely important step in the right direction. We all agree, and have done for 4 or 5 years, that it requires a constitutional amendment. We all agree that it is the duties and not the office that succeeds.

So we are concerned with two questions. One is a constitutional question as to whether this is the way to amend the Constitution, and then the practical one which Senator Keating has spoken of. This committee which I represent is primarily a committee on constitutional law. So that my emphasis will be on that.

I agree with the position which Mr. Powell stated for the American Bar last June, which was in substance concurred in by the Deputy Attorney General and which I made a concurring statement on. I think the reasons that that supported the conclusion that that was the sound constitutional way to do it still exists.

In the first place, you have a basic fundamenal principle of constitutional law that any amendment should be simple. I am substantially quoting from John Marshall. It should not give detail. You see the error of that in a great many proposals because, as time goes by, there might be great disagreement as to the practicability of applying it under changed circumstances. So the fundamental that you give broad enabling powers in the Constitution is what you should rely on, changing, if you please, implementation with changing conditions. That was the way that Senate Joint Resolution 35 came to be eventually evolved. The fundamental notion of it was even before the subcommittee of the Senate in 1956 or 1957. It was reaffirmed, as Senator Keating said-I have forgotten the exact stage of it—but it was substantially approved by your subcommittee last June.

Now, the present proposal of the American Bar, and again I agree that it is important to do something whether we agree about it or not, but the present proposal, I think, violates that basic principle of constitutional law.

It purports to provide the machinery. That may be controversial. Irrespective of whether it is a good principle or not, it does not seem to be the way to do it, because if you take the broad enabling act, the Senate Joint Resolution 35, you give any method to determine inability without the act of any person. Obviously, any tribunal would listen to the President if he said he was disabled. It is not necessary to have a written declaration by him, even for the principle, or determination. It puts a responsibility on the Vice President which, of course, was never contemplated by the Constitution, of making a determination where he might, in the past, have been in-there have been disagreements be