have probably seen that statement. We are now working on a statement on the budgetary process, which is going to keep us busy for quite a while. Thank you. Senator BAYH. Thank you very much. I ask that the conclusions reached by the Committee on Economic Development relating to a solution to this matter and two pertinent charts regarding the replacement provisions be included in the record. (The conclusion and charts follow:) 6. CONCLUSIONS The urgency of national action to resolve the doubts and uncertainties clouding Presidential succession and inability cannot be overly stressed. Failure to correct the deficiencies will subject the Nation to risks and hazards that are avoidable. Prompt action is imperative. This Committee has carefully measured the various alternatives for solution against certain criteria-continuity, legitimacy, certainty, stability, speed, simplicity, and preservation of the separation of powers fundamental to our constitutional system. The United States of America must have one person wielding the powers and duties of the Presidency at all times. Conversely, it cannot tolerate any period of confusion in which two men compete for the exercise of Presidential authority. Our first major recommendation, therefore, is that the Constitution be amended to provide that any vacancy in the office of Vice President be filled. We suggest giving the President authority to nominate a Vice President, subject to approval by joint session of Congress. Those persons in line of succession after the Vice President must be familiar with day-to-day Presidential activities. No other officers can match the preparation of the Vice President and leading Cabinet members for sudden elevation to the Presidency. This Committee, therefore, recommends that the line of succession beyond the Vice President be revised, placing the chief Cabinet officers next in line, as under the statute of 1886. We recognize that solution of the problem of Presidential "inability" poses problems, but there is one point on which accepted interpretations of the present Constitution should remain unchallenged. The word "inability" should continue to be understood to include every situation where the President, for whatever reason, is unable to exercise the powers and duties of his office. The preponderance of legal authority now holds that the President would retain his title and "office" in case of an established disability, while the Vice President (or whoever may be first in line of succession) would automatically assume his powers and duties. Clear language on this should be placed in the Constitution. We would not change these basic concepts as applicable to situations where the President, recognizing his own inability, calls upon the Vice President to exercise the Presidential powers and duties. Similarly, they apply to those situations where the President is unable to communicate his own obvious inability and where there may be need for instantaneous action in the national interest. Beyond these situations, however, there is need for clarification. This Committee's second major recommendation is that authority to decide that Presidential inability exists should be placed in the hands of the Cabinet in consultation with the Vice President or other successor. Any such decision should be by majority vote of the Cabinet, the Vice President concurring, upon the initiative of any member or of the Vice President. Termination of Presidential inability would follow the same procedure, except that Presidential— rather than Vice-Presidential-concurrence would be required. This proposal would also require constitutional revision; but a single amendment might include this provision with the other changes recommended. When these two major proposals are adopted, the United States will always have one person-and only one person-exercising the powers and duties of the Presidency. We regard these as the best choices among all proposed alternatives. We concede that some variations on these solutions would improve our present situation; but we are confident that no other alterations would meet the Nation's basic needs as well. 56 Total period of vacancy. Instances when the United States has been without a Vice President Termination of office Died Apr. 20, 1812. Length of time office vacant Years Months Day 10 12 Apr. 20, 1812-Mar. 3, 1813. Nov. 22, 1875-Mar. 3, 1877. Nov. 25, 1885-Mar. 3, 1889 020 032 294 Jan. 20, 1961-Jan. 20, 1965. Oct. 30, 1912-Mar. 3, 1913. 3 9 1 1 29 37 3 12 Source: Adapted from table prepared by History and General Research Division, Library of Congress. Occasions on which the President and the Speaker of the House of Representatives or the President pro tempore of the Senate were of opposite parties, 1864-1964 Source: Encyclopaedia Britannica. Compiled from Biographical Directory of the American Congress, 1774-1961. Senator BAYH. I would like now to call Herbert Brownell, former Attorney General of the United States, leading member of the bar of New York. I understand that he is presently president of the New York City bar. May I say he has made a great contribution in this give-and-take situation which has resulted in coming very close to the solution of this problem and awakening the awareness of the need for this type of legislation all over the country. Mr. Brownell, it is a privilege to have you before this committee. STATEMENT OF HERBERT BROWNELL, AMERICAN BAR ASSOCIATION Mr. BROWNELL. Thank you, Mr. Chairman, Senator Hruska. I am appearing this morning as the chairman of the American Bar Association's Committee on Presidential Inability and Vice-Presidential Vacancy. I wonder if I might have the approval of the subcommittee to hand up, without reading it, a statement of Lewis F. Powell, Jr., who is the president of the American Bar Association, in support of Senate Joint Resolution 1? Senator BAYH. Without objection, that will be admitted at this time. Mr. Powell has been extremely useful in helping solve this problem. Mr. BROWNELL. He is very unhappy that he could not be here this morning to represent the American Bar Association, but he was unavoidably detained elsewhere. (The prepared statement of Mr. Powell referred to follow :) STATEMENT BY LEWIS F. POWELL, JR. PRESIDENT OF THE AMERICAN BAR ASSOCIATION, WASHINGTON, D.C. Mr. Chairman and members of the subcommittee, my name is Lewis F. Powell, Jr. I am president of the American Bar Association and practice law in Richmond, Va. I had the privilege on June 11, 1963, and on February 24, 1964. of testifying before this distinguished subcommittee on the subject of Presidential inability, and I appreciate your invitation to appear here today—again as a representative of the American Bar Association-to discuss further the inability problem and also the related question of filling the vacancy in the office of Vice President. The American Bar Association has been interested in the subject of Presidential inability for many years. In 1960 the association's committee on jurisprudence and law reform studied the problem and recommended adoption of a constitutional amendment such as that proposed currently by Senate Joint Resolution 35. The language of Senate Journal Resolution 35 stemmed initially from the New York State Bar Association and the proposal embodied in that Senate joint resolution has been considered a sound one. It was considered a good proposal because it was concise, clear, and easily understoood. It would have solved the constitutional question arising in the event of the President's inability to discharge the powers and duties of his office. It would have left the appropriate procedures to Congress for final determination. In 1962 the American Bar Association reaffirmed its position calling for a constitutional amendment such as Senate Joint Resolution 35. In addition, it endorsed a proposed congressional statute as a stop-gap measure. In 1963, under the chairmanship of the late Senator Kefauver, hearings were held on Presidential inability by this subcommittee. Senate Joint Resolution 35 was reported favorably that year by the subcommittee. The death of President Kennedy directed the entire Nation's attention to the vacancy in the Vice-Presidency and to the difficult questions which might have faced the Nation had the President been disabled seriously. As in past years when crisis has occurred in the Presidential office, the American people became acutely aware of the importance of maintaining uninterrupted continuity in Executive leadership. Congressional leaders, constitutional scholars, and many others are in complete agreement that something must be done to eliminate the possibility of chaos in the event of the President's disability. It is also considered highly desirable that the office of Vice President be filled at all times. Unfortunately, no action has been taken by Congress because of the many differing views. In an attempt to develop a consensus among several distinguished lawyers most knowledgeable on this subject, the American Bar Association convened a conference on Presidential inability and succession on January 20-21, 1964. Attending the conference in Washington were: Herbert Brownell, president, Association of the Bar of the City of New York, and a former Attorney General of the United States; John D. Feerick, attorney, New York; Paul A. Freund, professor of law, Harvard University; Jonathan C. Gibson, chairman, Standing Committee on Jurisprudence and Law Reform, American Bar Association; Richard H. Hansen, attorney, Lincoln, Nebr.; James C. Kirby, Jr., associate professor of law, Vanderbilt University, and a former chief counsel to the Subcommittee on Constitutional Amendments, Senate Judiciary Committee; Ross L. Malone, past president of the American Bar Association, and a former Deputy Attorney General of the United States; Charles B. Nutting, dean of the National Law Center; Walter E. Craig, president, American Bar Association; Sylvester C. Smith, Jr., past president, American Bar Association; Martin Taylor, chairman, Committee on Federal Constitution, New York State Bar Association; Edward L. Wright, chairman, House of Delegates, American Bar Association, and myself. The 2-day deliberations of this highly distinguished group were intense and thorough. Proposals of this and past Congresses were reviewed in detail. Al though there was not absolute agreement by each conferee on all points of the final consensus, there was general agreement on the statement. On the question of action to be taken in the event of the President's inability, it was the consensus of the conference that 1. Agreements between the President and Vice President or person next in line of succession provide a partial solution, but not an acceptable permanent solution of the problem. 2. An amendment to the Constitution of the United States should be adopted to resolve the problems which would arise in the event of the inability of the President to discharge the powers and duties of his office. 3. The amendment should provide that in the event of the inability of the President the powers and duties, but not the office, shall devolve upon the Vice President or person next in line of succession for the duration of the inability of the President or until expiration of his term of office. 4. The amendment should provide that the inability of the President may be established by declaration in writing of the President. In the event that the President does not make known his inability, it may be established by action of the Vice President or person next in line of succession with the concurrence of a majority of the Cabinet or by action of such other body as the Congress may by law provide. 5. The amendment should provide that the ability of the President to resume the powers and duties of his office shall be established by his declaration in writing. In the event that the Vice President and a majority of the Cabinet or such other body as Congress may by law provide shall not concur in the declaration of the President, the continuing inability of the President may then be determined by the vote of two-thirds of the elected Members of each House of the Congress. On the related question of Presidential succession it was the consensus that 1. The Constitution should be amended to provide that in the event of the death, resignation, or removal of the President, the Vice President or the person next in line of succession shall succeed to the office for the unexpired term. 2. It is highly desirable that the office of Vice President be filled at all times. An amendment to the Constitution should be adopted providing that when a vacancy occurs in the office of Vice President, the President shall nominate a person who, upon approval by a majority of the elected Members of Congress meeting in joint session, shall then become Vice President for the unexpired term. The consensus was reviewed thoroughly by the association's committee on jurisprudence and law reform. The committee members agreed unanimously in recommending favorably the consensus to the association's house of delegates on February 17, 1964. The house of delegates adopted a resolution recommending that the Constitution of the United States be amended in accordance with the principles of the consensus. As the problems of Presidential inability and succession have already been the subject of extensive hearings and study by this subcommittee, and as you will have further testimony from eminent scholars and experts, it is unnecessary for me to make any comprehensive statement on the history of these problems or on the manifest need for appropriate solutions. My purpose will be merely to present some of the reasons which led to the principal conclusions in the consensus report. PRESIDENTIAL INABILITY The first five sections of the consensus, relating to Presidential inability, are as follows: "1. Agreements between the President and Vice President or person next in line of succession provide a partial solution, but not an acceptable permanent solution of the problem. "2. An amendment to the Constitution of the United States should be adopted to resolve the problems which would arise in the event of the inability of the President to discharge the powers and duties of his office. "3. The amendment should provide that in the event of the inability of the President, the powers and duties, but not the Office, shall devolve upon the Vice President or person next in line of succession for the duration of the inability of the President or until expiration of his term of Office. |