ary and not later than the 10th day of January, the President of the Senate shall in the presence of the Senate and House of Representatives open all certificates and the votes shall then be counted. Each person for whom votes were cast for President in each State shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors therein for President. In making the computations, fractional numbers less than one-thousandth shall be disregarded. The person having the greatest number of electoral votes for President shall be President, if such number be at least 40 per centum of the whole number of such electoral votes. If no person have at least 40 per centum of the whole number of electoral votes, then from the persons having the two highest numbers of electoral votes for President, the Senate and the House of Representatives sitting in joint session shall choose immediately, by ballot, the President. A majority of the votes of the combined authorized membership of the Senate and the House of Representatives shall be necessary for a choice.

"The Vice President shall be likewise elected, at the same time and in the same manner and subject to the same provisions, as the President, but no person constitutionally ineligible for the office of President shall be eligible to that of Vice President of the United States.

"The Congress may by law provide for the case of the death of any of the persons from whom the Senate and the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate and the House of Representatives may choose a Vice President whenever the right of choice shall have devolved upon them.

"SEC. 4. Whenever the powers and duties of the office of President shall devolve upon the Vice President or upon one of the persons designated by the Congress to act as President in the absence of a Vice President, and the date of the next general election for Senators and Representatives in Congress to be held more than ninenty days after such powers and duties shall have so developed is at least two years prior to the date on which the next regular quadrennial election for President is to be held, a special election shall be held in the several States for the purpose of choosing a President and Vice President. Such special election shall be held at the time of the next general election for Senators and Representatives in Congress, and, except as provided in this section, candidates for such special election shall be nominated and elected in the same manner as in the case of regular elections. The lists required by the first section of this article to be transmitted to the seat of the Government shall be transmitted within ten days after the election and shall be opened and the votes counted on the fifteenth day following such election. A President and Vice President elected at a special election held pursuant to this section shall take office on the fifth day following the day on which the result of such election shall have been determined and shall hold office until noon on the 20th day of January following the expiration of four years after the date on which they take office, and the terms of their successors shall then begin. Thereafter, except as provided in this section, the terms of the President and Vice President shall end at noon on the 20th day of January in each fourth year, and the terms of their successors shall then begin.

"SEC. 5. Paragraphs 1, 2, and 3 of section 1, article II, of the Constitution, and the twelfth article of amendment to the Constitution, and section 4 of the twentieth article of amendment to the Constitution, are hereby repealed.

"SEC. 6. This article shall take effect two years following its ratification. "SEC. 7. 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."

Senator BAYH. We have several distinguished witnesses appearing before the subcommittee this morning. I want to thank them in advance for giving so willingly of their time.

Prior to proceeding with the witnesses, I think it would be wise to note one or two ground rules which the subcommittee has traditionally operated under. Because of national urgency, this matter has received the attention of a great number of organizations and individuals who would like to be heard. We are going to try to emphasize in this hearing views from those who differ in part or entirely from the consensus

which has developed over the past year on this issue. We are not trying to railroad anything or gag anybody. Our first witness this morning is the new Attorney General of the United States. He is going to be followed in turn by some outstanding individuals who will express either the support or dissent. I want anyone to feel free to testify, especially those who want to oppose the proposal on which we have a broad consensus, Senate Joint Resolution 1. Senate Joint Resolution 1 has been supported by my colleagues on the subcommittee and is being supported by 75 percent of the Senate.

As of today, Congress is very close to adopting and submitting to the States a reasonable, flexible, and workable constitutional amendment to give us a Vice President at all times and to permit the Vice President to act temporarily for the President when the Chief Executive is disabled.

It may not please everyone. No law can. But it is a proposal that would safeguard the Nation against interruptions in the continuity of executive authority.

The fact that 76 Senators are cosponsoring Senate Joint Resolution 1 does not mean that all of us agree to every comma and semicolon. What it does mean is that all of us have agreed to compromise on one point or another in order to achieve a consensus.

Problems of presidential inability and filling vacancies in the office of Vice President will never be solved if we in the Congress are naive enough to believe that there is a perfect solution that meets all conceivable contingencies. If we attempt to do this, we run the grave risk of formulating a rigid and inflexible proposal that may well create more problems than it solves.

As a preface to the hearing I would point out that on 16 occasions in the history of our country where the Vice President has either died or left office or moved up to the office of the Presidency. The office of Vice President itself has developed perhaps to a greater extent than any other office in the United States. Today, the Vice President is an important cog in the executive branch of our Government. Traditionally, we have been concerned about the office of Vice President only because the man occupying it might succeed to the office of President. Now, however, today I think we have to be equally concerned that although he may not, and we hope he does not succeed to the office of President, he has full-time functions to perform as Vice President.

He sits on the National Security Council. He participates in Cabinet meetings. He heads the President's Commission on Equal Employment Opportunities. He is Chairman of the National Aeronautics and Space Council. He is the Nation's No. 1 foreign ambassador.

The related problem of inability has been a particularly trying one which, I am certain, the Attorney General can speak with great authority.

I will therefore forgo any further remarks because of the number of people who want to be heard and because of the fact that the Attorney General has a busy schedule and must leave shortly.

The first witness was previously the Assistant Attorney General in charge of the Office of Legal Counsel under President Kennedy. He became Deputy Attorney General when Mr. Justice White was named

to the Supreme Court. He became Acting Attorney General when the now Senator Kennedy resigned. Yesterday he was given the great honor which he so richly deserves of being nominated for the office of Attorney General by the President of the United States.

This introduction is not sufficient to properly portray the fine legal record of the first witness, but Mr. Attorney General, let that suffice for now, if you will. My apologies and we are happy to have you with us.

STATEMENT OF HON. NICHOLAS deB. KATZENBACH, ATTORNEY GENERAL-DESIGNATE OF THE UNITED STATES; ACCOMPANIED BY NORBERT SCHLEI, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL

Attorney General KATZENBACH. Thank you very much for your statement. I have a prepared statement here. It is likely to take about 15 minutes for me to read it. Would you like me to do that or would you prefer to have me answer questions?

Senator BAYH. We shall let you use your own judgment. We are most anxious to have your thoughts, because in addition to having been Assistant Attorney General, you have studied this problem in some detail and I would rely on your judgment completely as to how you want to present your testimony before the committee. You may read your statement, paraphrase it, expand upon it, however you prefer. Attorney General KATZENBACH. Thank you, Mr. Chairman.

I would like also to note that I am accompanied by Mr. Norbert Schlei, who is the Assistant Attorney General in charge of the Office of Legal Counsel.

Senator BAYH. We are glad to have Mr. Schlei with us.

Attorney General KATZENBACH. I am privileged to appear before this subcommittee in support of Senate Joint Resolution 1, a proposal which would amend the Constitution in order to remedy two critical deficiencies. The proposed amendment would, first, clarify the situation that would exist in the event that the President should become disabled and, second, provide a means for filling vacancies in the office of Vice President.

The subcommittee may recall that in 1963, I testified on several proposed amendments to the Constitution relating to cases where the President is unable to discharge the powers and duties of his office. Last year the subcommittee continued its efforts and approved a bill identical with Senate Joint Resolution 1 which was passed by the Senate. Since the subcommittee has already made a comprehensive study of this matter, I shall do no more today than to state fairly briefly what we understand Senate Joint Resolution 1 proposes to do and what the Department's views are respecting it.

At the outset, before considering the specific provisions of Senate Joint Resolution 1, I want to reaffirm my prior position that the only satisfactory method of settling the problem of Presidential inability is by constitutional amendment, as Senate Joint Resolution 1 proposes. The same of course is true of the problem of filling vacancies in the office of Vice President. I recognize that there are distinguished scholars who are of the opinion that Congress has power to act in the matter of Presidential inability under the "necessary and proper"

clause (art. 1, sec. 8, clause 18), and that a statute would therefore suffice as a solution. There is, however, equally distinguished opinion, including that of the last three Attorneys General, for the proposition that the problem can be adequately resolved only by constitutional amendment. And as a practical matter, if what we want is to assure continuity in Executive leadership-and if what we want to avoid is uncertainty, confusion, and dissension at the very time of crisisthen in my judgment a statute would not provide a satisfactory solution. So I fully agree with the constitutional amendment route marked out by Senate Joint Resolution 1.

THE PROBLEM OF PRESIDENTIAL INABILITY

Article II, section 1, clause 6 of the Constitution provides as follows:

In case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

It is generally agreed that this provision no longer poses any legal problem in the event of the death of a President. As a matter of historical practice, first established by John Tyler and followed by seven other Vice Presidents, the Vice President becomes President in such a contingency. Section 1 of the Senate Joint Resolution 1 confirms this practice in the case of death and extends the same principle to the case of removal of, or resignation by, the President. Under section 1, therefore, the Vice President would become President and be sworn in as President in the event of the latter's removal, death, or resignation. I can see no objection whatever to section 1.

With respect to the problem of presidential inability, there is no similar settled practice because, of course, so far in our history no Vice President has ever exercised the powers and duties of the Presidency during a period of Presidential inability. It is true that the identical Eisenhower-Nixon, Kennedy-Johnson, Johnson-McCormack, and Johnson-Humphrey understandings as to these matters, supported as they are by the views of the last three Attorneys General, have gone far toward establishing a settled practice. These informal understandings, however, leave much to be desired as a means of resolving such fundamental questions, and in any case they make no provision for the situation that would exist if the President and Vice President were to disagree on the question of inability. Accordingly, it is clear that what we need at this time is a lasting and complete solution to the key questions which are apt to arise under the ambiguous language of article II, section 1, clause 6 of the Constitution when a President suffers inability. The first is whether it is the "Office" of the President, or the "Powers and Duties" of that Office, which devolve upon the Vice President in the event of presidential inability. The second is who shall raise the question of "Inability" and make the determination as to when it commences and when it terminates.

The great majority of constitutional scholars have expressed the opinion that upon a determination of Presidential inability, the Vice President succeeds only temporarily to the powers and duties of the office and does not permanently become President. This has been the unanimous view of Attorneys General of both Republican and Democratic administrations for at least the last decade. Similarly, the majority of scholars are agreed that the Vice President has constitutional authority to make the initial determination of Presidential inability, and that the President has the authority to determine when his inability is at an end. My own judgment and that of many Attorneys General is that this is so. However, enough doubt has existed on these subjects in the past that several Vice Presidents have been deterred from acting as President when the President was temporarily disabled. As you will recall, this happened most dramatically during the prolonged illnesses of Presidents Garfield and Wilson, when the country was left without leadership and decisions were made, to the extent that they were made at all, in a questionable manner.

The events of the last decade show us all too clearly how quickly disability can strike. We cannot afford to assume that our good fortune in the past will continue in the future. If a similar tragedy should occur while section 3 of Senate Joint Resolution 1 is in effect, it would not only fix beyond dispute the status of the Vice President as Acting President when he is discharging the powers and duties of a disabled President, it would also give the President a firm constitutional guarantee that he could reassume these powers and duties as soon as his inability has ended. On this basis, a President who is sick, or about to undergo an operation which will temporarily incapacitate him, will not hesitate to announce his inability, nor will a Vice President be unduly slow to act if an emergency situation of this kind demands it.

The extraordinary situations-where the President cannot or does not declare his own inability, or where a dispute exists between the President and Vice President as to whether inability exists-are covered by sections 4 and 5 of Senate Joint Resolution 1.

Section 4 provides that if the President does not declare his inability, the Vice President with the written concurrence of a majority of the heads of the executive departments (that is, the members of the Cabinet) or such other body as Congress might by law provide, may transmit to Congress his written declaration that the President is disabled, and immediately assume the powers and duties of the office as Acting President. Section 5 provides that the President can resume the powers and duties of his office by transmitting to the Congress his written declaration that his inability has ended. If, however, the Vice President does not agree that the President's inability has ended, section 5 further provides that the Vice President can, with the written concurrence of a majority of the heads of the executive departments or such other body as Congress might by law provide, within 2 days so advise Congress. Thereupon Congress would be required immediately to decide the issue. A two-thirds vote of both Houses would be necessary to keep the President out and permit the Vice President to continue to act as Acting President. If the Vice President could not muster a two-thirds vote in each