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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:

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"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.

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CONTENTS

Senate Joint Resolution 1..
Senate Joint Resolution 6..
Senate Joint Resolution 15.
Senate Joint Resolution 25.
Senate Joint Resolution 28..

Page

12233

STATEMENTS

Bayh, Hon. Birch, a U.S. Senator from the State of Indiana, chairman
of the Subcommittee on Constitutional Amendments_

Brownell, Herbert, former Attorney General of the United States, New
York, N.Y...

Curtin, Hon. Willard S., a Representative in Congress from the Eighth
Congressional District of the State of Pennsylvania_.
Deasy, Robert J., Providence College.

Dodd, Hon. Thomas J., a U.S. Senator from the State of Connecticut, as presented by Dean Sharp..

Folsom, Hon. Marion B., Chairman, Committee for Improvement of
Management in Government, Committee for Economic Development_-_
Fong, Hon. Hiram, a U.S. Senator from the State of Hawaii__.
Hruska, Hon. Roman L., a U.S. Senator from the State of Nebraska--.

Katzenbach, Nicholas deB., Acting Attorney General of the United States-
Miller, Hon. Jack, a U.S. Senator from the State of Iowa.
Musmanno, Hon. Judge Michael, justice, Supreme Court of Pennsylvania__
Powell, Lewis F., Jr., president-elect, American Bar Association--
Taylor, Martin, chairman of the Committee on Constitutional Law, New
York Bar Association_

STATEMENTS SUBMITTED FOR THE RECORD

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American Bar Association, consensus report_---
American Bar Association, house of delegates report..

57

57

104

105

107

106

101

103

105

Ervin, Hon. Sam J., Jr., a U.S. Senator from the State of North Carolina---
Javits, Hon. Jacob K., a U.S. Senator from the State of New York-
Kraus, Lawrence G...

Mundt, Hon. Karl E., a U.S. Senator from the State of South Dakota....
Pearson, Hon. James B., a U.S. Senator from the State of Kansas---
Saltonstall, Hon. Leverett, a U.S. Senator from the State of Massachusetts-
Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina__

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