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House in favor of a determination of continuing Presidential inability, the President would resume the powers and duties of his office. Ás the subcommittee knows all too well, the factual situations with which Senate Joint Resolution 1 is designed to deal are numerous and complex. Inevitably, therefore, some aspects of Senate Joint Resolution 1 will raise problems of ambiguity for some observers. As the chairman noted at the outset, it is almost impossible to please everyone with respect to every problem that can come up in this situation. In order to assist in minimizing any such ambiguity, I would like to set forth the interpretations I would make of the proposed amendment in several difficult areas so that the subcommittee may have an opportunity to consider whether clarification is needed.

First, I assume that in using the phrase "majority vote of both Houses of Congress" in section 2, and "two-thirds vote of both Houses" in section 5, what is meant is a majority and two-thirds vote, respectively, of those Members in each House present and voting, a quorum being present. This interpretation would be consistent with longstanding precedent (see, that is, Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276 (1919)).

Second, I assume that the procedure established by section 5 for restoring the President to the powers and duties of his Office is applicable only to instances where the President has been declared disabled without his consent, as provided in section 4; and that, where the President has voluntarily declared himself unable to act, in accordance with the procedure established by section 3, he could restore himself immediately to the powers and duties of his Office by declaring in writing that his inability has ended. The subcommittee may wish to consider whether language to insure this interpretation should be added to section 3.

Third, I assume that even where disability was established originally pursuant to section 4, the President could resume the powers and duties of his Office immediately with the concurrence of the Acting President, and would not be obliged to await the expiration of the 2-day period mentioned in section 5.

Fourth, I assume that transmission to the Congress of the written declarations referred to in section 5 would, if Congress were not then in session, operate to convene the Congress in special session so that the matter could be immediately resolved. In this regard, section 5 might be construed as impliedly requiring the Acting President to convene a special session in order to raise an issue as to the President's inability pursuant to section 5.

Further in this connection, I assume that the language used in section 5 to the effect that Congress "will immediately decide" the issue means that if a decision were not reached by the Congress immediately, the powers and duties of the Office would revert to the President. This construction is sufficiently doubtful, however, and the term "immediately" is sufficiently vague, that the subcommittee may wish to consider adding certainty by including more precise language in section 5 or by taking action looking toward the making of appropriate provision in the rules of the House and Senate.

In my testimony during the hearings of 1963, I expressed the view that the specific procedures for determining the commencement and termination of the President's inability should not be written into the

Constitution, but instead should be left to Congress so that the Constitution would not be encumbered by detail. There is, however, overwhelming support for Senate Joint Resolution 1, and widespread sentiment that these procedures should be written into the Constitution. The debate has already gone on much too long. Above all, we should be concerned with substance, not form. It is to the credit of Senate Joint Resolution 1 that it provides for immediate, self-implementing procedures that are not dependent on further congressional or Presidential action. In addition, it has the advantage that the States, when called upon to ratify the proposed amendment to the Constitution, will know precisely what is intended. In view of these reasons supporting the method adopted by Senate Joint Resolution 1, I see no reason to insist upon the preference I expressed in 1963 and assert no objection on that ground.

I might add, Mr. Chairman, it would be a courageous man who would take issue with 75 Senators.

FILLING THE VACANCY IN THE OFFICE OF VICE PRESIDENT

Related to the problem of Presidential inability is the equally critical problem of a vacancy in the office of Vice President. Too often it is overlooked that the country has been without a Vice President 16 times-in almost half of the 36 administrations in the history of the Nation. In an age marked by crisis, we can no longer afford such a gap in the high command of the executive branch of the Government. Today more than ever, the working relationship between the President and Vice President has become increasingly close; the burdens of the Presidency and the exigencies of our time leave no other alternative. The need is therefore manifest for a constitutional amendment to assure that the office of Vice President will never again remain vacant.

In my opinion, Senate Joint Resolution 1 embodies a highly satisfactory solution to this problem. Section 2 would amend the Constitution to provide that whenever there is a vacancy in the office of Vice President the President shall nominated a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Permitting the President to choose the Vice President, subject to congressional approval, in the event of a vacancy in that office, will tend to insure the selection of an associate in whom the President has confidence, and with whom he can work in harmony. Participation by Congress in the procedure should help to insure that the person selected would be broadly acceptable to the people of the Nation.

At this time, I wish to pay my respects to the members of this subcommittee, whose combined effort and scholarship have resulted in this important measure. Also, I wish to commend the Special Committee on Presidential Inability of the American Bar Association, and similar committees of State and city bar associations, who have in recent years helped to focus attention and to rally public support for resolving these problems promptly.

It seems clear that Senate Joint Resolution 1 represents as formidable a consensus of considered opinion on any proposed amendment to the Constitution as one is likely to find. It may not satisfy

in every respect the views of all scholars and statesmen who have studied the problem. For that matter, I doubt that any proposal could ever fully satisfy everyone in this troublesome area. But, it seems to me evident that, as President Johnson said yesterday, Senate Joint Resolution 1 "would responsibly meet the pressing need * * *

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I understand that 47 State legislatures will be in session this year. Given the opportunity, I believe that many of these State legislatures will be able to ratify the necessary constitutional amendment if Congress acts without delay. I earnestly recommend such action.

Senator BAYH. Thank you, very much, Mr. Attorney General, for your statement. I am sure that this will add a great deal not only to the record but to our study of this amendment as we try to go further to find imperfections which can be improved.

In my haste in trying to get the committee underway, I have breached a bit of committee etiquette by not making introductions of my colleagues, the distinguished Senators from Illinois, Nebraska, Hawaii, and Maryland. They have all made a contribution and ĺ am sure they will all want to make a statement, but because of the press of time on the Attorney General, I have moved right ahead. We may ask a question or two based on this very enlightening testimony.

First, without objection, I would like to suggest that the very articulate message sent to Congress by the President yesterday be submitted into the record at this time.

(The statement of President Johnson, previously referred to follows:)

[Released by Office of the White House Press Secretary, Jan. 28, 1965]

To the Congress of the United States:

THE WHITE HOUSE.

In 1787, Benjamin Franklin remarked near the conclusion of the Constitutional Convention at Philadelphia, “It * * * astonishes me, sir, to find this system approaching so near to perfection as it does ***.”

One hundred seventy-eight years later the relevance of that Constitution of 1789 to our society of 1965 is remarkable. Yet it is truly astonishing that, over this span, we have neither perfected the provisions for orderly continuity in the executive direction of our system nor, as yet, paid the price our continuing inaction so clearly invites and so recklessly risks.

I refer, of course, to three conspicuous and long-recognized defects in the Constitution relating to the office of the Presidency:

1. The lack of a constitutional provision assuring the orderly discharge of the powers and duties of the President-Commander in Chief-in the event of the disability or incapacity of the incumbent.

2. The lack of a constitutional provision assuring continuity in the office of the Vice President, an office which itself is provided within our system for the primary purpose of assuring continuity.

3. The lack of a constitutional provision assuring that the votes of electors in the electoral college shall without question reflect the expressed will of the people in the actual election of their President and Vice President. Over the years, as I have noted, we have escaped the mischief these obvious omissions invite and permit. Our escape has been more the result of Providence than of any prudence on our part. For it is not necessary to conjure the nightmare of nuclear holocaust or other national catastrophe to identify these omissions as chasms of chaos into which normal human frailties might plunge us at any time.

On at least two occasions in our history, and perhaps others, American Presidents-James Garfield and Woodrow Wilson-have, for prolonged periods, been rendered incapable of discharging their Presidential duties. On 16 occasions, in our 36 administrations, the office of Vice President has been vacant

and over the two perilous decades, since the end of the Second World War, that vital office has been vacant the equivalent of 1 year out of 4. Finally, over recent years, complex but concerted campaigns have been openly undertakenfortunately without success, as yet-to subvert the electoral college so that it would register not the will of the people of individual States but, rather, the wishes of the electors themselves.

The potential of paralysis, implicit in these conditions, constitutes an indefensible folly for our responsible society in these times. Commonsense impels, duty requires us to act, and to act now, without further delay.

Action is in the tradition of our forebears: Since adoption of the Bill of Rights-the first 10 amendments to our Constitution-9 of the 14 subsequent amendments have related directly either to the offices of the Presidency and Vice Presidency or to assuring the responsiveness of our voting processes to the will of the people. As long ago as 1804, and as recently as 1964, Americans have amended their Constitution in striving for its greater perfection in these most sensitive and critical areas.

I believe it is the strong and overriding will of the people today that we should act now to eliminate these unhappy possibilities inherent in our system as it now exists. Likewise, I believe it is the consensus of an overwhelming majority of the Congress-without thought of partisanship—that effective action be taken promptly. I am, accordingly, addressing this communication to both Houses to ask that this prevailing will be translated into action which would permit the people, through the process of constitutional amendment, to overcome these omissions so clearly evident in our system.

I. PRESIDENTIAL INABILITY

Our Constitution clearly prescribes the order of procedure for assuring continuity in the office of the Presidency in the event of the death of the incumbent. These provisions have met their tragic tests successfully. Our system, unlike many others, has never experienced the catastrophe of disputed succession or the chaos of uncertain command.

Our stability is, nonetheless, more superficial than sure. While we are prepared for the possibility of a President's death, we are all but defenseless against the probability of a President's incapacity by injury, illness, senility, or other affliction. A nation bearing the responsibilities we are privileged to bear for our own security, and the security of the free world, cannot justify the appalling gamble of entrusting its security to the immobilized hands or uncomprehending mind of a Commander in Chief unable to command.

On September 29, 1964, the Senate passed Senate Joint Resolution 139, proposing a constitutional amendment to deal with this perplexing question of Presidential disability as well as the question, which I shall discuss below, of filling vacancies in the office of Vice President. The same measure has been introduced in this Congress as Senate Joint Resolution 1 and House Joint Resolution 1. The provisions of these measures have been carefully considered and are the product of many of our finest constitutional and legal minds. Believing, as I do, that Senate Joint Resolution 1 and House Joint Resolution 1 would responsibly meet the pressing need I have outlined, I urge the Congress to approve them forthwith for submission to ratification by the States.

II. VACANCY IN THE OFFICE OF THE VICE PRESIDENT

Indelible personal experience has impressed upon me the indisputable logic and imperative necessity of assuring that the second office of our system shall, like the first office, be at all times occupied by an incumbent who is able and who is ready to assume the powers and duties of the Chief Executive and Commander in Chief.

In our history, to this point, the office of the President has never devolved below the first clearly prescribed step of constitutional succession. In moments of need, there has always been a Vice President; yet, Vice Presidents are no less mortal than Presidents. Seven men have died in the office and one has resigned, in addition to the eight who left the office vacant to succeed to the Presidency. We recognized long ago the necessity of assuring automatic succession in the absence of a Vice President. Various statutes have been enacted at various times prescribing orders of succession from among either the presiding officers of the Houses of Congress or the heads of executive departments who, together comprise the traditional Cabinet of the President. In these times, such orders of succession are no substitute for an office of succession.

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Since the last order of succession was prescribed by the Congress in 1947, the office of the Vice President has undergone the most significant transformation and enlargement of duties in its history.

Presidents Truman, Eisenhower, and Kennedy have successively expanded the role of the Vice President, even as I expect to do in this administration.

Once only an appendage, the office of Vice President is an integral part of the chain of command and its occupancy on a full-time basis is imperative.

For this reason, I most strongly endorse the objective of both Senate Joint Resolution 1 and House Joint Resolution 1 in providing that, whenever there is a vacancy in the office of Vice President, provision shall exist for that office to be filled with a person qualified to succeed to the Presidency.

III. REFORM OF THE ELECTORAL COLLEGE SYSTEM

We believe that the people should elect their President and Vice President. One of the earliest amendments to our Constitution was submitted and ratified in response to the unhappy experience of an electoral college stalemate which jeopardized this principle. Today, there lurks, in the electoral college system, the ever-present possibility that electors may substitute their own will for the will of the people. I believe that possibility should be foreclosed.

Our present system of computing and awarding electoral votes by States is an essential counterpart of our Federal system and the provisions of our Constitution which recognize and maintain our Nation as a Union of States. It supports the two-party system which has served our Nation well. I believe this system should be retained. But it is imperative that the electoral votes of a State be cast for those persons who receive the greatest number of votes for President and Vice President-and for no one else.

At the same time, I believe we should eliminate the omission in our present system which leaves the continuity of the offices of President and Vice President unprotected if the persons receiving a majority of the electoral votes for either or both of these offices should die after the election in November and before the inauguration of the President. Electors are now legally free to choose the President without regard to the outcome of the election. I believe that if the President-elect does under these circumstances, our laws should provide that the Vice President-elect should become President when the new term begins. Conversely, if death should come to the Vice-President-elect during this interim, I believe the President-elect should, upon taking office, be required to follow the procedures otherwise prescribed for filling the unexpired term of the Vice President. If both should die or become unable to serve in this interim, I believe the Congress should be made responsible for providing the method of selecting officials for both positions. I am transmitting herewith a draft amendment to the Constitution to resolve these problems.

Favorable action by the Congress on the measures here recommended will, I believe, assure the orderly continuity in the Presidency that is imperative to the success and stability of our system. Action on these measures now will allay future anxiety among our own people, and among the peoples of the world, in the event senseless tragedy or unforeseeable disability should strike again at either or both of the principal Offices of our constitutional system. If we act now, without undue delay, we shall have moved closer to achieving perfection of the great constitutional document on which the strength and success of our system have rested for nearly two centuries.

THE WHITE HOUSE, January 28, 1965.

LYNDON B. JOHNSON.

Senator BAYH. Mr. Attorney General, as you know, the Constitution is the bedrock type of law of our land in which broad generalities are expressed and laid forth with a minimum of specifics. This was one of the difficulties which confronted us in trying to draft legislation in an area that had great need for at least some specifics. You very correctly pointed to some areas to which we had given a great deal of study. I would like to explore your thoughts in some of these areas, if I may, to see if it is possible to be more specific in your thinking as to how we should approach these possible problems.

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