Cabinet did not ask Vice President Chester Arthur to take over and act as President during this time, for reasons I will discuss in a few minutes.

Grover Cleveland was operated on for cancer of the jaw in July 1893. Only one Cabinet member knew of the impending surgery, which took place on the yacht Oneida, as it sailed out to sea. The President was placed in a chair, which was strapped to the mast to prevent unnecessary motion during the operation. land couldn't even sign his name for a month afterward and the public didn't know of the operation until 7 years later-and neither did Vice President Stevenson.

Cleve

Woodrow Wilson was stricken in September 1919 at the height of his fight for the League of Nations. He never fully recovered. For several months he was completely bedridden and when spring came and he went for rides in a White House limousine, he had to be propped up so he wouldn't fall over when the car turned corners. Vice President Thomas R. Marshall was never asked to take the reins of government temporarily.

Why haven't the Vice Presidents temporarily assumed the office at such critical periods? There are two reasons: One is a legal argument which has been used as a smokescreen to cover up the real and more practical, political reason. The strange part about it is that the legal argument doesn't hold water when closely examined, although it has been blandly accepted since 1840.

The

The year 1840 was the year President William Henry Harrison died after 1 month in office. The question arose as to whether Vice President Tyler became President in his own right, or whether he merely became Acting President. query would have been academic except for the fact that Tyler's archenemy in politics, Henry Clay, implied that "Acting President" Tyler had fewer powers than the regularly elected Harrison. Clay wanted Tyler to be another "Clay pigeon." Tyler, who was Harry Truman's great-great-granduncle was not about to take orders from anyone, especially Clay. Of course, constitutional history proves that an Acting President would have the same powers as a regularly chosen President. But as Henry Adams says, "practical politics consists in ignoring the facts." Besides, in 1840 that constitutional history wasn't readily available to Tyler. Libraries were few, the records of the convention had not been published. Tyler, like Truman, acted quickly. He promptly asserted that he had become President on the death of Harrison. Thus he established the Tyler precedent which has been followed by seven Vice Presidents when a President died. This deviation from the original intent of the Constitution would be of theoretical interest, but for the fact that the Tyler precedent has been used, in a different situation-when the President is incapacitated-used as smokescreen to prevent the Vice President from acting as President.

Now let's look at the real reasons why Vice Presidents Arthur, Stevenson, and Marshall were not asked to step in and act as President until their Chiefs recovered.

Arthur belonged to a different faction of the Republican Party than Garfield, and Arthur was nominated for Vice President solely to placate that faction. After Garfield and Arthur were inaugurated, Garfield got into a hot political battle with two New York bosses, Conkling and Platt, and the country witnessed the strange spectacle of Arthur, the Vice President, making speeches for the bosses, in opposition to the President with whom he was supposed to serve. Is it any wonder that the reform Cabinet of Garfield refused to ask Arthur to serve? They were afraid he would scuttle Garfield's whole program, especially the passage of the Civil Service Act which Garfield had given priority. It is more than interesting to note, however, that after Garfield died, and Arthur became President, Arthur rose to the occasion, and it was he who engineered the passage of the Civil Service Act and signed it into law.

Cleveland's Vice President, Adlai Stevenson, also represented a different wing of the party. Cleveland was a New York gold standard Democrat, while Stevenson was an Illinois silverite. Stevenson became Vice President for the same reason that Arthur had been nominated, as a gesture to placate the opposition wing. Cleveland fell ill just after he had called Congress into a special session to consider repeal of the Sherman Silver Purchase Act, which Stevenson favored. Cleveland, under the circumstances, wasn't about to advise Stevenson of his illness. The vote was close anyway.

Woodrow Wilson considered his Vice President, Thomas R. Marshall, a small caliber man. The Hoosier, Marshall, was Wilson's second choice for the post.

However, Marshall was an advocate of the league and had Wilson let the man from Indiana take over the Presidency during the critical period of the fight for the league, history might well have been different. As it is, Marshall's sole bulwark against oblivion is his remark that "what this country needs is a good 5-cent cigar." What is the answer to this problem?

MEMOS ONLY A PARTIAL STOPGAP SOLUTION

Both Presidents Eisenhower and Kennedy realized this. Both Presidents realized that there were serious deficiencies in the memorandum. It was General Eisenhower who pointed out to me one of the most serious weaknesses in this type of agreement. He emphasized the point several times in an interview at Gettysburg in June 1961.

"The whole strength of the agreement," said Eisenhower, "depends upon good will between the President and Vice President." Good will-and the history just outlined shows that there is often ill will between the two officers. Good will is not the basis for the selection of a vice-presidential candidate; geography is the determinant. The marriage of our President and Vice President is one of political convenience, not compatibility.

Eisenhower might also have pointed out another very serious weakness in these memorandum agreements-they do not solve the problem of removing the veil of secrecy which traditionally surrounds Presidential illnesses. For instance, there is no legal requirement that these memoranda themselves be made public. Only a handful of people have ever seen the originals of the two memoranda on disability. Publicly, they are evidenced only by White House news releases. This is not a reflection on Eisenhower or Kennedy, since the arrangements are purely personal as the law now stands. Eisenhower tried repeatedly to get Congress to pass legislation on the subject. Nor would any intelligent person suggest that these understandings are anything other than what they purport to be. But isn't it a strange anomaly when our law requires publication in the Federal Register of a Presidential proclamation concerning the government of the tiny insular possession, Palmyra Island, but not of a document determining succession to the Presidency of the entire Nation?

These are only a few of the weaknesses of the memorandum method. Other dangerous gaps are discussed in the book, and I wouldn't want to discourage you from looking for them there.

Our Congressmen and even President Eisenhower in his proposals to the Congress, were greatly concerned over what method should be used to determine Presidential disability and there were almost as many ideas as there were people. This is the problem to which the American Bar Association conference on January 20-21 addressed itself. Strangely enough, they all overlooked a very obvious first step: before worrying about the method for Congress to enact we must make certain Congress has the power to enact any method.

The ambiguous wording of the Constitution raises a question concerning the power of Congress to pass statutes on the subject. It would be amusing, if it were not so tragic, to see legislators in the Congress arguing about the various methods for determining disability when there is considerable doubt as to whether they have the power to adopt any method at all. This is the first problem to be met nationally; a clarification, by constitutional amendment, of the power of Congress in this regard, with a qualifying safety clause limiting Congress to a method compatible with the maintenance of the three separate branches of Government, thus prohibiting the legislative branch from using a disability procedure as a handy alternative to impeachment of the President.

Then a panel would have to be established by statute to make the actual determination of when a Presidential disability exists or terminates. This is one of several suggestions that have been advanced.

On January 22, 1964, I stood at the grave of John F. Kennedy in Arlington National Cemetery. In June of 1961 I had consulted with Ted Sorensen and others on the Kennedy-Johnson memorandum and the contingency of a disability on the part of President Kennedy seemed remote indeed. At his graveside, I reflected on the fact that I held a briefcase containing the recommendations just presented to the American Bar Association's Conference on Presidential Inability. In my heart was a prayer and a dedication that President Kennedy's death must not be a meaningless event, but that one of the many ramifications might be im

petus to the drive for a needed constitutional amendment to insure the United States of America against another year without a President.

With your help and interest we will make that prayer a reality.

Senator BAYH. I am very familiar with the editorials, as well as the article by Mr. Hansen. In fact, Mr. Hansen was a member of the American Bar Association consensus group which met for 2 full days last year at this time, doing yeoman service in arriving at the consensus of the conflicting thoughts. I would be the first to say that articles such as the fine editorials in the Post and the Times, which I have read, have made substantial contribution to discussions like those we are participating in here and will continue to participate in. where we have divergent views expressed, particularly as they are expressed as articulately as my friend from Nebraska expresses his. Senator HRUSKA. The chairman is kind.

Senator BAYH. I would like to point out the primary obstacle this subcommittee has been faced with and the Nation has been faced with for almost 200 years now, as far as finding a solution to this problem. It is certainly something to be taken into consideration as we discuss and deliberate upon the merits of any question; that is, the problem has not been solved. We have been confronted with these shortcomings. Why has it not been solved? The question has been asked repeatedly. The answer is not that Congress has not studied it, that Congress has not made proposals. Quite to the contrary. The answer is, as I have seen it, that we have had so many different proposals and a refusal or reluctance on the part of the proposers to sit down and work out an agreement which we admit is not perfect, but which is better than no solution at all.

That, I think, is why we have had so much discussion on Senate Joint Resolution 1. It is not because I have had anything to do with it, but because many people have taken a lot of time, have given and taken in an effort to reach a solution. We have had 13 proposals before the Senate last year, as the Senator knows. Of this, now, we have 75 Members supporting this resolution. I do not think there is one of them, certainly not myself as the primary sponsor, who will say this is perfect. But I think it is the best we are going to get and I think it is far better than no solution at all.

I know the Senator realizes the need for give and take in the legislative process, yet the goal must be gotten to in the best way we possibly can. I felt compelled to make this statement to the Senator. If he wants equal time, he may fire away.

Senator HRUSKA. I have already had equal time, Mr. Chairman. We understand the process of legislation, I am sure.

I do feel that this time the Congress will speak on the subject, make a determination among the various views and submit the amendment to the States for ratification. In loyalty to the practices I feel important, I do feel a necessity in presenting this view. I thank the chairman for his tolerance.

Senator BAYH. You present your views very well.

The Senator from Iowa has been more than patient.

Senator Miller, we are glad to have you with us as a man who has expressed a great deal of interest in this, and in fact, a man who has a measure before this subcommittee.

STATEMENT OF HON. JACK MILLER, U.S. SENATOR FROM THE STATE OF IOWA

Senator MILLER. May I say that my patience was matched by my interest in the fine colloquy between the chairman and the Senator from Nebraska.

Mr. Chairman, I share the concern of all our colleagues over the need for a Presidential succession law. It was for this reason that I supported the measure which passed the Senate last year, and I want it understood, Mr. Chairman, that if that is the choice before the Senate this year, I would propose to support it again.

Unfortunately, the problem of what to do in the case of the disability of the President also exists. That has recently been taken care of, I understand, by an arrangement between President Johnson and Vice President Humphrey. But there is considerable support for the idea that this should be taken care of by law. Just how to do it has led to a great amount of controversy, and this controversy had a bearing on the failure of the House to act on a Senate-passed measure last year. I hope that the committee will take careful note of the fact that 21 Representatives have introduced 28 different alternative proposals on this disability problem this year.

It seems to me that the first order of business is the problem of Presidential succession. I say this because the disability problem has been taken care of by the arrangement to which I have referred, granted that it only relates to the present incumbents.

So I have introduced my bill, Senate Joint Resolution 15, which relates solely to succession, believing as I do that the two Houses could readily agree on this point, whereas to couple with a succession bill, as we did last year, the disability matter might lead to further delay in acting on this important matter.

Under my bill, in the event of a vacancy in the office of Vice President, either because of the death of the Vice President or his succession to the Presidency, the President would nominate a Vice President of the same party affiliation as that of the President. The nominee would take office only upon confirmation by a majority vote of both Houses of Congress in joint session. Thus, my bill meets head on this problem of possible future controversy in the event the Congress is controlled by one party and the office of the Presidency is controlled by another party.

This problem could have arisen during the terms of both President Eisenhower and President Truman. I would hope that there would be a general agreement on this approach to the succession problem. In the event my bill is not acted on by this committee, it might see fit to fragment Senate Joint Resolution 1 into two parts or two separate bills, one dealing solely with succession, the other dealing with disability.

I think we should bear in mind that it is not going to help the country at all if the Senate passes a bill and the House does not. I think we would be better off if both Houses passed a succession bill this year and the disability problem, if it were not treated in both Houses, were taken care of at a later time.

Thank you.

Senator BAYH. I want to thank the Senator for his very good statement, as well as his interest in the matter. If I might make one or two observations and permit my colleague to comment on them, I think those of us in the Senate last year should bear at least our share of the responsibility for the House's refusal to act. As you will recall, we were involved in a little "discussion" on the matter of civil rights. It was not until the very waning hours of the session that we got the measure over to the House and the House Judiciary Committee, particularly, was involved, with respect to the other body-was involved in some rather controversial matters such as school prayer and reapportionment, as well as presidential succession.

I think the Senator should know, probably already knows, that the Speaker of the House in this session has stated his support for Senate Joint Resolution 1, and the chairman of the Judiciary Committee has introduced a similar act and the ranking minority member, Representative McCulloch, has introduced a similar measure. He has put on it a time limit, giving 10 days in which to act.

I only mention this because I think that the Senator's concern over the need not to pick up the enemies of one part and bestow them along with the enemies of the other is a very real concern. I do not share his opinion that this is going to be a roadblock this time, but I do feel that if we do run into this roadblock, we should be prepared to decide to go two separate ways.

It is my feeling that the problems are closely related and if we can get them together, we have one constitutional amendment on two similar subjects, rather than two amendments.

Senator MILLER. I might say I recognize the controversy over this succession as well as the disability treatment that prevailed in the last session of the Congress over in the House. But I think it would not do any harm if two bills came out of this committee and two bills went over to the House, one on succession and one on disability. If there is no particular controversy over there, then both of them will pass without any difficulty. I do not see that there is going to be any particular functional problem about getting these two separate bills passed in the same session of Congress, referred to the various legislatures, and acted on. They can both be relatively short.

But I invite the attention of the chairman to the fact that there are 28 different alternative proposals on this disability question. And granted that the Speaker may be inclined to support, let us say, the bill Senate Joint Resolution 1 when it comes over to the House, this certainly does not guarantee that that is what is going to happen in the House, as we witnessed just the other day in the case of the Commodity Credit Corporation deficiency appropriation. I think this problem is too deep and important to the people of the United States to run any risks. I do not see any risks at all by having two bills. But I certainly see a risk if we have just one. That is the main thesis that I am presenting here.

As I say, if this is the choice that will be before the Senate upon passage, I would propose to support this legislation, as I did last year. I share the chairman's appreciation for the tremendous amount of work that has gone into Senate Joint Resolution 1. But we have to think of the other body, and because of so many alternative proposals now pending over there, I think we could not do any harm by fragmenting this into two bills.