dency. This is an appropriate technique which leaves subsequent administrations free, as they would in any event be, to follow or reject the precedent.

Section 1 states that in event of inability, the President would, if possible, inform the Vice President of his condition, in which case the Vice President would serve as acting President until the inability is over.

This provision contemplates that the President will voluntarily announce his own inability, if it exists, for the purpose of encouraging the Vice President to discharge the powers and duties of the office until the President has recovered. This section helps to remove the obstacle which caused responsible Government officials to refrain from acting in the Garfield and Wilson cases. No one can possibly accuse the Vice President of being disloyal or a usurper if he undertakes to serve as acting President upon the request of the President. This section embraces most of the cases of Presidential inability likely to arise.

Section 2 deals with a situation in which the President is unable to communicate with the Vice President. In that event, the Vice President may take action "after such consultation as seems to him appropriate under the circumstances."

It will be noted that section 2 leaves the determination of Presidential inability in the first instance where the Constitution places it now-in the Vice President. There is one addition in section 2 which is absent from the Constitutionthe Vice President may consult with other persons as seems to him appropriate.

Even though the Vice President need not under the Constitution consult any one, it is clearly wise and conducive to strengthening his position if he seeks advice from other persons before presuming to exercise the powers and duties of the Presidency. Since the Constitution is silent on the matter, no specific persons to be consulted are mentioned, and of course, in view of the latitude given, he might conceivably consult no one before he acted.

Section 3 states that the President may, whether he or the Vice President has declared the inability, determine when

it is over, and forthwith resume the full exercise of the powers and duties of the office.

Here again, the understanding represents what my two immediate predecessors and I regard to be authorized by the Constitution-that the President may regain the powers of his office without the concurrence of any other official or group if he is of the opinion that his inability has been removed. Attorney General Brownell has said: 57 "The EisenhowerNixon understanding, by providing, first, for the Vice President's determination of presidential inability and, second, for the President's determination of when that inability terminates, thus coincides perfectly with article II, section 1, of the Constitution as originally drafted in 1787 * * *.”

This was also Attorney General Rogers' opinion and it is mine too, without reservation.

Since this understanding may prove to be a persuasive precedent of what the Constitution means until it is amended or other action is taken, I would favor that the present Administration follow it. Cumulative precedents of this kind may be valuable in the future.

IV

Conclusions

In my judgment, there is no question that the Vice President acts as President in the event of the President's inability and acts in that capacity "until the disability be removed." I do not believe that the practice which has grown up to the effect that the Vice President "becomes President" in event of the death of the President creates any substantial doubt.

I believe also that there is no substantial question that it is the Vice President who determines the President's inability if the President is unable to do so; and that it is the President who asserts when the inability has ceased. These conclusions are supported by the great majority of reputable scholars who have examined the problem, as well as by my prede

cessors.

In this connection, it is important to note the development of the Vice Presidency in recent years, and the changes in

"Brownell, op. cit. supra note 30, 204.

that office which have come about, particularly in the past two decades. During this time the Vice Presidency has moved substantially from its anomalous status under the Constitution in both the executive and legislative branches towards the former. Recent Vice Presidents have been given significant executive responsibility and an important voice in the highest affairs of state. The working relationship between the President and Vice President has become increasingly close and, during the past Administration as well as the present one, the President has been concerned to keep the Vice President current and informed with regard to Presidential policies.

While one cannot predict with certainty that this trend will continue in future administrations, I regard it as altogether likely because, in an age marked by crisis, this course seems to be dictated by the necessities of our time. It is significant with regard to the problems discussed in this opinion because, in my judgment, it greatly reduces the possibility of an impasse between the President and Vice President, and thoughts in the public mind that the Vice President should be regarded as a potential usurper of office. It also is relevant because it greatly increases the practical capacity of the Vice President to act as President in the event of Presidential inability, whatever the cause.

I am of the opinion that the understanding between the President and the Vice President which I have approved above is clearly constitutional and as close to spelling out a practical solution to the problem as is possible.

Respectfully,

ROBERT F. KENNEDY.

20-828 0-68

EXHIBIT No. 4

(The following is an excerpt from the book, "Six Crises," by former Vice President Richard M. Nixon, pp. 178 to 180, 1962:)

The problem of presidential disability is complex, dating back to the Constitutional Convention in 1787 when Delaware's Delegate John Dickinson brought it up and got no answer.

Authorities and experts have written books on the subject, all dealing with the ambiguity of article II, section I, clause 5 of the Constitution, which says:

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.

Simply stated, this clause does not make clear: Who decides when the President is unable to discharge the powers and duties of his office? just what devolves upon the Vice President, the "powers and duties" or the "office" itself? can the President resume office once he has given it up? who decides if the President is well enough to resume his office, if he can at all?

Anyone, I think, can imagine 2 dozen troublesome contingencies which might become involved in passing the powers of a President to a Vice President, and constitutional lawyers, who have studied the question for more than a hundred years, can think of 200 more. President Eisenhower, after studying the problem closely, was intent on solving the practical problem of giving his Vice President the authority to act immediately in a crisis, if necessary. He mentioned several alternatives, but kept coming back to the idea of writing a letter which would give the Vice President alone the authority to decide when the President was unable to carry on-that is, when the President himself was unable to make the decision.

In early February, the President called Rogers and me into his office, commented that he thought he had licked the problem, and handed each of us a copy of a letter. Then he leaned back in his chair and, while we followed on our copies, he read a four-page letter to us, beginning, "Dear Dick." We made some minor suggestions and he incorporated them into the letter and then sent it on to his secretary, Ann Whitman, for final typing. Marked "Personal and Secret," one copy went to me, one to Bill Rogers as Attorney General, and one to John Foster Dulles, as Secretary of State and ranking member of the Cabinet.

With the exception of our very minor suggestions, the letter was wholly Eisenhower's in concept and drafting, and it was a masterpiece. Leaving the White House, Bill Rogers remarked that Eisenhower would have made an outstanding lawyer, for the letter handled the contingencies of a very complex problem from every angle and was as good a drafting job as any constitutional expert could have done.

The President made public the following key paragraphs:

The President and the Vice President have agreed that the following procedures are in accord with the purposes and provisions of article 2, section 1, of the Constitution, dealing with presidential inability. They believe that these procedures, which are intended to apply to themselves only, are in no sense outside or contrary to the Constitution, but are consistent with its present provisions and implement its clear intent.

(1) In the event of inability the President would-if possible so inform the Vice President, and the Vice President would serve as Acting President, exercising the powers and duties of the office until the inability had ended. (2) In the event of an inability which would prevent the President from so communicating with the Vice President, the Vice President, after such consultation as seems to him appropriate under the circumstances, would decide upon the devolution of the powers and duties of the office and would serve as Acting President until the inability had ended.

(3) The President, in either event, would determine when the inability had ended and at that time would resume the full exercise of the powers and duties of the Office.

This letter established historical precedent. Eisenhower was the first President in American history to take cognizance of and act upon a serious gap in our Constitution. President Kennedy, even before his inauguration, drew up an identical list of procedures for his Vice President, Lyndon Johnson, to follow in exercising the rights and duties of the President in the event of Kennedy's incapacity. The new administration adopted in its entirety the section of the Eisenhower letter which was made public, and it would be fair to assume that President Kennedy's successor will follow the precedent.

But what must be clearly understood is that the agreement President Eisenhower set forth in his letter to me, and the one President Kennedy has entered into with Vice President Johnson, are only as good as the will of the parties to keep them. Presidents and Vice Presidents have not always had the mutual trust and the cordial relations President Eisenhower had with me or that President Kennedy has had with Vice President Johnson up to this time. Jealousies and rivalries can develop within an administration which could completely destroy such an agreement.

Only a constitutional amendment can solve the problem on a permanent basis. President Eisenhower's agreement with me was personal and had the force of his authority only during his term of office. President Kennedy's agreement is similarly limited. These agreements, which are mere expressions of a President's desires, do not have the force of law. Even a law passed by Congress might be subject to constitutional challenge. However, such a law would express the will of Congress and should be passed while the incumbent President is in good health and before a presidential election year drags politics into an already complex problem. The experiences of Garfield, Wilson, and Eisenhower should have taught us a lesson. Surely the time has come for a truly bipartisan program to draw up a constitutional amendment which would define the rights and duties of a Vice President during any period when the President of the United States is incapacitated.

The urgent need for such an amendment becomes crystal clear when a President is disabled, but that is precisely the time when politics bar any reasonable agreement on the wording of such an