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PRESIDENTIAL INABILITY

FRIDAY, JANUARY 29, 1965

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:06 a.m., in room 2228, New Senate Office Building, Senator Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Bayh, Tydings, Dirksen, Hruska, and Fong. Also present: Larry Conrad, chief counsel, Clyde Flynn, minority counsel; and Mary Day, clerk.

Senator BAYH. I would like to call to order the hearings of the Subcommittee on Constitutional Amendments. We are here this morning to consider the various problems connected with Presidential inability and filling vacancies in the Office of Vice President.

I would like the record to show that notice of these hearings has been duly published in the Congressional Record on Tuesday, January 26, 1965. Further, I ask that the following resolutions pertaining to this hearing be made a part of the record at this point. (S.J. Res. 1, 6, 15, 25, and 28.)

[S.J. Res. 1, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to succession to the Presidency and Vice Presidency and to cases where the President is unable to discharge the powers and duties of his office

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE

"SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

"SEC. 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

"SEC. 3. If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

"SEC. 4. If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

"SEC. 5. Whenever the President transmits to the Congress his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress will immediately decide the issue. If the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the office, the Vice President shall continue to discharge the same as Acting President; otherwise the President shall resume the powers and duties of his office."

[S.J. Res. 6, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to cases where the President is unable to discharge the powers and duties of his office

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

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"SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

"SEC. 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

"SEC. 3. If the President declares in writing that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President until the disability be removed. "SEC. 4. The Congress shall prescribe by law a procedure by which the executive branch shall determine the presence and termination of the inability of the President or Acting President.

"SEC. 5. Article II, section 1, paragraph 6 is hereby repealed."

[S.J. Res. 15, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to vacancies in the Vice Presidency

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution only if ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

ARTICLE

"SECTION 1. In the case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

"SEC. 2. Whenever there is a vacancy in the office of Vice President, the President shall nominate a Vice President who shall be a member of the same political party as the President, who shall take office upon confirmation by a majority vote of both Houses of Congress sitting in joint session."

[S.J. Res. 25, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution to provide for the succession of the Vice President to the office of President, and for the selection of a new Vice President whenever there is a vacancy in the office of Vice President

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. If the office of President becomes vacant because of the death, removal from office, or resignation of the President, the Vice President shall become President. If the office of Vice President becomes vacant because of the death, removal from office, or resignation of the Vice President or the death of a Vice-President-elect before the time fixed for the beginning of his term, or because the Vice President or a Vice-President-elect has assumed the office of President by reason of the death, removal from office, or resignation of the President or the death of a President-elect before the time fixed for the beginning of his term, the electors who were chosen to cast ballots in the most recent election of President and Vice President shall meet in their respective States on the Monday of the third week beginning after the date on which the office of Vice President became vacant, and shall then vote by ballot for a new Vice President. They shall name in their ballots the person so voted for as Vice President, and shall make a list of all persons voted for as Vice President and the number of votes for each, which list they shall sign and certify, and transmit to the President pro tempore of the Senate. The votes so cast shall then be counted, and a new Vice President shall be selected, in the manner prescribed by the twelfth article of amendment to this Constitution for the selection of a Vice President. "SEC. 2. Electors for President and Vice President chosen in any State under this Constitution shall serve as such until the date on which electors are chosen for the next regular election of a President and a Vice President. Vacancies which may occur before that date in the membership of electors of any State because of death, removal from office, or resignation shall be filled by the selection of successors in the next regular election of that State in which members of the House of Representatives are chosen.

"SEC. 3. If the Congress is not in session at a time at which a new Vice President is to be selected under this article, the person discharging the powers and duties of President shall convene the Senate and the House of Representatives in joint session for that purpose.

"SEC. 4. A Vice President chosen under this article shall serve as such until the end of the term for which the Vice President or Vice-President-elect whom he succeeds was elected.

"SEC. 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the States within seven years from the date of its submission to the States by the Congress."

[S.J. Res. 28, 89th Cong., 1st sess.]

JOINT RESOLUTION Proposing an amendment to the Constitution relating to the nomination and election of candidates for President and Vice President, and to succession to the office of President in the event of the death or inability of the President Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"ARTICLE

"SECTION 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years and, together with the Vice President, chosen for the same term, be elected as provided in this Constitution.

"SEC. 2. The nominees of each political party for election as President shall be nominated in primary elections held in the several States as provided by this section. The places and manner of holding such primary elections shall be prescribed in each State by the legislature thereof. Congress shall determine the time of such primary elections, which shall be the same throughout the United States. The voters in such primary elections in each State shall have the qualifications requisite for electors of the most numerous branch of the legislature of such State. Any such voter shall be eligible to vote only in the primary of the political party of his registered affiliation. No person shall be a candidate for nomination except in the primary of the political party of his registered affiliation, and the name of each such candidate shall appear on the ballot of that party in all of the States. A political party shall be recognized as such for the purposes of any primary election held pursuant to this article if at any time within four years preceding such election the number of its registered members shall have exceeded 10 per centum of the total number of registered voters in the United States.

"Within fifteen days after any such primary, or at such time as the Congress shall direct, the official custodian of the election returns of each State shall make separate lists of all persons for whom votes were cast as nominee for President and the number of votes for each, which lists he shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Speaker of the House of Representatives, open all certificates, and the votes shall then be counted.

"Each political party in each State shall be entitled to a number of nominating votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress. Each person for whom votes were cast as nominee for President in any State shall be credited with such proportion of his party's nominating votes in such State as he receives of the total popular vote of his party therein for President. In making the computation fractional numbers less than one one-thousandth shall be disregarded unless a more detailed calculation would change the result of the election. The person having a majority of the nominating votes as nominee for President in the case of each party shall be the nominee of that party for President. If in any political party no person receives a majority of the nominating votes as nominee for President, then a second primary for that political party shall be held and the names of the two persons seeking the Presidential nomination of that party who have received the greatest number of nominating votes in the first primary shall appear on the second primary ballot, and the one person receiving the greater number of nominating votes in the second primary shall be the nominee of that political party for President. "In the event of the death or resignation, prior to the election, of the nominee of any political party for President, the national committee of such party shall designate a successor, but in choosing such successor the vote shall be taken by States, the delegation from each State having one vote. A quorum for such purpose shall consist of a delegate or delegates from two-thirds of the States, and a majority of all States shall be necessary to a choice.

"SEC. 3. The electoral college system of electing the President and Vice President of the United States is hereby abolished. The President and Vice President shall be elected by the people of the several States. The voters in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. The places and manner of holding such election shall be prescribed in each State by the legislature thereof. Congress shall determine the time of such election, which shall be the same throughout the United States. Until otherwise determined by the Congress, such election shall be held on the Tuesday next after the first Monday in November of the year preceding the year in which the regular term of the President is to begin. Each State shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress.

"Within forty-five days after such election, or at such time as the Congress shall direct, the official custodian of the election returns of each State shall make distinct lists of all persons for whom votes were cast for President and the number of votes for each, and the total vote of the electors of the State for all persons for President, which lists he shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the PresiIdent of the Senate. On the 6th day of January following the election, unless the Congress by law appoints a different day not earlier than the 4th day of Janu

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