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2-19-1965

Senate Floor Debates: Presidential DisabilityUnited States. Senate

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CONGRESSIONAL RECORD - SENATE February 19, 1965Congress did not intend that there be

any limitation at all. It was intendedthat a taxpayer 10 years from now, ifhe wished could take advantage of thenew schedules. It was the intention ofCongress that he make this electionwhen he was ready and at whatever datehe chose. The 3-, 4-, 5-year periodshould never have entered into it.

The Treasury Department by its mostrecent ruling has removed that time lim-itation. I compliment them. The Treas-ury Department is recognizing its error.But I point out that American business isnot getting any additional tax cut thatit did not have under the 1962 law orthat Congress did not intend that theyhave fully under the 1962 law. It wasnot the intention of Congress that any-one who had not made this election priorto a 3-year period be deprived of it.

I repeat, this is not a new tax cut.Mr. MANSFIELD. Mr. President, I

suggest the absence of a quorum.The PRESIDING OFFICER. The

clerk will call the roll.The legislative clerk proceeded to call

the roll.Mr. MANSFIELD. Mr. President, I ask

unanimous consent that the order for thequorum call be rescinded.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

PRESIDENTIAL AND VICE-PRESI-DENTIAL SUCCESSION-PRESI-DENTIAL DISABILITY

The Senate resumed the considerationof the joint resolution (S.J. Res. 1) pro-posing an amendment to the Constitu-tion of the United States relating tosuccession to the Presidency and Vice-Presidency and to cases where the Presi-dent is unable to discharge the powersand duties of his office.

Mr. BAYH. Mr. President, I askunanimous consent that the committeeamendments be considered and agreedto en bloc, and that the bill as thusamended be considered as original textfor the purpose of further amendment,not prejudicing the rights of any Senatorto further amend the bill.

The PRESIDING OFFICER. Is thereobjection? The Chair hears none, andit is so ordered.

The committee amendments agreed toen bloc are as follows:

On page 2, line 17, after "SEC. 3.", to strikeout "If the President declares in writing" andinsert "Whenever the President transmits tothe President of the Senate and the Speakerof the House of Representatives his writtendeclaration"; in line 23, after "SEC. 4.", tostrike out "If the President does not so de-clare, and the Vice President with the writtenconcurrence of a majority of the heads of theexecutive departments or such other body asCongress may by law provide, transmits tothe Congress his written declaration thatthe President is unable to discharge thepowers and duties of his office, the Vice Pres-ident shall immediately assume the powersand duties of the office as Acting President."and insert "Whenever the Vice President, anda majority of the principal officers of theexecutive departments or such other body asCongress may by law provide, transmit to thePresident of the Senate and the Speaker ofthe House of Representatives their writtendeclaration that the President is unable to

discharge the powers and duties of his office,the Vice President shall immediately assumethe powers and duties of the office as ActingPresident."; on page 3, line 13, after theword "the", where it appears the secondtime, to strike out "Congress" and insert"President of the Senate and the Speaker ofthe House of Representatives"; in line 18,after the word "the", where it appears thefirst time, to strike out "heads" and insert"principal officers"; and at the beginningof line 23, to strike out "will immediately"and insert "shall immediately proceed to"';so as to make the joint resolution read:

"Resolved by the Senate and House of Rep-resentatives of the United States of Americain Congress assembled (two-thirds of eachHouse concurring therein), That the follow-ing article is proposed as an amendment tothe Constitution of the United States, whichshall be valid to all intents and purposes aspart of the Constitution when ratified by thelegislatures of three-fourths of the severalStates within seven years from the date ofits submission by the Congress:

" ARTICLE -

"'SECTION 1. In case of the removal of thePresident from office or of his death or resig-nation, the Vice President shall become Pres-ident.

" 'SEC. 2. Whenever there is a vacancy inthe office of the Vice President, the Presidentshall nominate a Vice President who shalltake office upon confirmation by a majorityvote of both Houses of Congress.

"'SEC. 3. Whenever the President transmitsto the President of the Senate and theSpeaker of the House of Representatives hiswritten declaration that he is unable to dis-charge the powers and duties of his office,such powers and duties shall be dischargedby the Vice President as Acting President.

"'SEC. 4. Whenever the Vice President, anda majority of the principal officers of the ex-ecutive departments or such other body asCongress may by law provide, transmit to thePresident of the Senate and the Speaker ofthe House of Representatives their writtendeclaration that the President is unable todischarge the powers and duties of his office,the Vice President shall immediately assumethe powers and duties of the office as ActingPresident.

" 'SEC. 5. Whenever the President transmitsto the President of the Senate and theSpeaker of the House of Representatives hiswritten declaration that no inability exists,he shall resume the powers and duties of hisoffice unless the Vice President, with thewritten concurrence of a majority of theprincipal officers of the executive depart-ments or such other body as Congress mayby law provide, transmits within two days tothe Congress his written declaration that thePresident is unable to discharge the powersand duties of his office. Thereupon Congressshall immediately proceed to decide the is-sue. If the Congress determines by two-thirds vote of both Houses that the Presi-dent is unable to discharge the powers andduties of the office, the Vice President shallcontinue to discharge the same as ActingPresident; otherwise the President shall re-sume the powers and duties of his office.'"

Mr. BAYH. Mr. President, I send tothe desk an amendment to section 5 ofthe bill and ask that it be stated. I feelthat this was the intention of the com-mittee. It is a change of wording thatneeds to be made in order to have thebill conform to the intention of the com-mittee. It does not change the bill inany way at all.

The PRESIDING OFFICER. Theclerk will state the amendments.

The LEGISLATIVE CLERK. On page 3, inline 17, strike the following: "with the

written concurrence of" and insert in lieuthereof: "and".

On page 3, line 20, strike the follow-ing: "transmits within two days to theCongress his" and insert in lieu thereof:"transmit within two days to the Presi-dent of the Senate and the Speaker of theHouse of Representatives their".

The PRESIDING OFFICER. Thequestion is on agreeing to the amend.ments of the Senator from Indiana.

The amendments were agreed to.Mr. BAYH. Mr. President, and Mem-

bers of the Senate, on December 1, 1964,the President of the United States had asmall growth removed from his hand.The Nation wondered. On January 23,1965, Americans awoke to learn that dur-ing the night the President had enteredthe hospital with a cold. The Nation,and, indeed, much of the world worried.But we were fortunate on each of thoseoccasions.

Today we have a strong, forthright,and vigorous President of the UnitedStates. I might also add that we arefortunate today because we have an able-bodied and vigorous Vice President of theUnited States. This was not the case inthe sad months following November 22,1963.

We have not been so fortunate in thepast to have had able-bodied, vigorousPresidents and Vice Presidents.

Sixteen times in the history of ourcountry we have been without a VicePresident. All Americans can recall theeight Presidents who have died in office,but our memories fail us in remember-ing that seven Vice Presidents died inoffice; and one Vice President, John Cal-houn, resigned to become a U.S. Senator.

The total span during which this Na-tion has not had a Vice President hasbeen in excess of 37 years.

There have been serious presidentialdisabilities over various periods of thehistory of our country. I should like toreview them briefly.

President Garfield lay disabled for 80days after being struck by the bullet ofan assassin.

Ruth Silva, in her book "PresidentialSuccession," described that period inthese words:

During these 80 days a great deal of urgentbusiness demanded the President's immedi-ate attention: there were postal frauds; of-ficers did not perform their duties becausethey had not been commissioned; the coun-try's foreign relations were deteriorating* * * Nearly every day the newspapers men-tioned some important matter which wasignored because it required the President'spersonal attention.

And still there was no one to performthe functions that only the disabled Pres-ident could perform.

President Wilson had a serious illnesslasting 16 months. To all intents andpurposes, history shows that his wife andhis physician conducted the Governmentof the United States. No member of theCabinet was permitted to see the Pres-ident for a minute. No one could seeor hear a word he said or wrote.

Presidential Assistant Joseph Tumultywas not allowed to see the President.However, in good conscience, he felt hewas compelled to give Mrs. Wilson a list

February 19, 1965 CON

of business which he felt needed Pres-idential action.

I quote from Eugene Smith's "Whenthe Cheering Stopped," relating to thattime:

The railways taken over during the warstill awaited return to their owners, theCosta Rican recognition matter was stillup in the air, a commission to deal withthe mining strike situation should be ap-pointed, the Secretaries of the Treasury andthe Interior and the Assistant Secretaryof Agriculture needed replacements, therewere vacancies in the Civil Service Commis-sion, Federal Trade Commission, InterstateCommerce Commission, Shipping Board,Tariff Committee and other agencies, andthat diplomatic appointments were neededfor Bulgaria, China, Costa Rica (if recog-nized), Italy, the Netherlands, Salvador,Siam, and Switzerland. Also, the Democraticleadership in the Senate desperately wantedan expression of Wilson's policy in dealingwith the Lodge amendments to U.S. entryinto the League of Nations.

Subsequently, without Presidential ad-vice, America's entry, and later theLeague of Nations itself, failed.

President Cleveland underwent amajor operation, in complete secrecy,aboard a private yacht cruising off LongIsland.

More recently, in the memory of allof us, President Eisenhower had threeserious illnesses. The Vice President,Mr. Richard Nixon, in his book "SixCrises," describes the period surroundingthe Presidential heart attack on Sep-tember 24, 1955, as a period of "govern-mental lull."

However, if it was a period of govern-mental lull, I wonder what a period ofgovernmental crisis would have been.I quote from the New York Times ofSeptember 27, 1955, relating to the timesin which we lived:

Top-level decisions were pending on dis-armament policy, budgetary problems, mili-tary force levels, certain politicostrategicquestions, withdrawal of troops from Korea,future military policy toward Formosa, andreduction of forces in Japan.

For some 2 months after PresidentEisenhower's heart attack the Govern-ment was directed, for all intents andpurposes, by a six-man committee, com-prised of Vice President Nixon, Presiden-tial Assistant Sherman Adams, Mr.Dulles, Secretary of State, Attorney Gen-eral Brownell, Secretary of the TreasuryHumphrey, and General Persons.

Vice President Nixon wrote of thisperiod in his "Six Crises":

Although it was hardly mentioned, I amcertain that many of us realized our team-government would be inadequate to handlean international crisis, such as a brush-firewar or an internal uprising in a friendlycountry or a crisis of any ally. The ever-present possibility of an attack on the United.States was always hanging over us. Wouldthe President be well enough to make thedecision? If not, who had the authority topush the button?

Vice President Nixon, after PresidentEisenhower's second illness, which was a30 -minute operation for an attack ofileitis on June 8, 1956, says, in his book"Six Crises":

On several occasions afterwards he (Eisen-hower) pointed out to me that for the 2

GRESSIONAL RECORD -SENATEhours he was under anesthesia the countrywas without a chief executive, the ArmedForces without a Commander in Chief. Inthe event of a national emergency duringthose 2 hours, who would have had the un-disputed authority to act for a completelydisabled President?

Again, Vice President Nixon, on Presi-dent Eisenhower's third illness, whichwas a stroke on November 27, 1957, stat-ed in his book:

It was a time of international tensions.Only a month before the Soviet Union hadput its first Sputnik in orbit * * *. Themost immediate problem was a scheduledmeeting of NATO only 3 weeks away * * *On the domestic front, the first signs of the1958 economic recession were becoming ob-vious * * *. We were having serious budgetproblems.

So wrote the former Vice President,who was forced to serve during three se-rious Presidential illnesses.

Former Attorney General Brownell,who was one of the committee of six dur-ing the illness mentioned, wrote of thehalf hour when President Eisenhowerwas unconscious during his ileitis op-eration that:

It was realized that the announced inten-tion of the President to undergo a seriousoperation might entice a hostile foreign pow-er to make some drastic move in the expecta-tion of finding, at the critical moment, con-fused and uncertain leadership in the UnitedStates.

Senate Joint Resolution 1 is an effortto guarantee continuity within the ex-ecutive branch of Government. It is de-signed to provide that we shall alwayshave a President or Acting Presidentphysically and mentally alert. Second,and of equal importance, it is to assurethat whoever the man may be, therewill be no question as to the legality ofhis authority to carry out the powers andduties of the office.

Mr. LONG of Louisiana. Mr. Presi-dent, will the Senator yield?

Mr. BAYH. I am glad to yield.Mr. LONG of Louisiana. I commend

the Senator for the fine work he hasdone both in studying the backgroundand problem and also in bringing themeasure before the Senate at this veryearly date. The Senator has laboredlong in the vineyard on this matter. Ibelieve he managed the measure in theprevious Congress, which the Senatepassed. Unfortunately, on that occasion,the House failed to act. I certainly hopethat the efforts of the Senator will becrowned with success, and also the ef-forts of his committee; and that thismeasure, having passed the Senate, willbe promptly acted upon by the House ofRepresentatives in the first session ofCongress.

Mr. BAYH. I am grateful to the Sen-ator for his kind words. I know of hislong interest in this subject and havediscussed it with him. I know of hisconcern that this loophole in the Con-stitution of the United States should befilled.

(At this point Mr. PELL took the chairas Presiding Officer.)

Mr. BAYH. Mr. President, let me re-view for a moment what has gone on be-fore, to establish and clarify the Execu-

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tive authority of the U.S. Government.First, I refer to article II, section 1 ofthe Constitution.

I believe we should refer to article II,section 1 of the Constitution on this par-ticular question. The contents of articleII deal with the responsibility of the Ex-ecutive authority in our country.

Section 1 specifies:The executive Power shall be vested in a

President of the United States of America.He shall hold his Office during the Term offour Years, and, together with the Vice Pres-ident, chosen for the same Term, be elected,as follows

In addition, article II, following the Ex-ecutive powers, or executive contingen-cies, deals with the selection of electors,it deals with the manner in which thePresident and Vice President shall beelected. This, let me point out, has sub-sequently been amended in the 12thamendment. It deals with the qualifica-tions which are prescribed for the Presi-dent and the Vice President. It dealswith Presidential compensation. It dealswith the oath of office which the Presi-dent is required to take. It deals, mostimportant of all, with the powers andduties which are given to the President.It deals with messages-the state of theUnion message, and others-which thePresident may make to the Congress. Italso provides for the event of removal,death, resignation, or inability of thePresident.

I should like to read this last provi-sion, because it is this provision withwhich we are dealing specifically in Sen-ate Joint Resolution 1.

The clause reads as follows:In case of the Removal of the President

from Office, or of his Death, Resignation, orInability to discharge the Powers and Dutiesof the said Office, the Same shall devolve onthe Vice President, and the Congress mayby Law provide for the Case of Removal,Death, Resignation or Inability, both of thePresident and Vice President, declaring.whatOfficer shall then act as President, and suchOfficer shall act accordingly, until the Dis-ability be removed, or a President shall beelected.

Senate Joint Resolution 1 is designedto clarify the ambiguity, and remove theuncertainty and doubt which have beenraised over the years by this clause.

I ask unanimous consent to haveprinted in the RECORD the text of SenateJoint Resolution 1, as amended by thecommittee, and more recently amendedby unanimous consent of the Senate.

There being no objection, the jointresolution, as amended, was ordered tobe printed in the RECORD, as follows:

S.J. RES. 1Joint resolution proposing an amendment to

the Constitution of the United States re-lating to succession to the Presidency andVice-Presidency and to cases where thePresident in unable to discharge the powersand duties of his officeResolved by the Senate and House of Rep-

resentatives of the United States of Americain Congress assembled (two-thirds of eachHouse concurring therein), That the follow-ing article is proposed as an amendment tothe Constitution of the United States, whichshall be valid to all intents and purposes aspart of the Constitution when ratified by thelegislatures of three-fourths of the several

CONGRESSIONAL RECORD- SENATE February 19, 1965States within seven years from the date ofits submission by the Congress:

"ARTICLE -

"SECTION 1. In case of the removal of thePresident from office or of his death or res-ignation, the Vice President shall becomePresident.

"SEC. 2. Whenever there is a vacancy inthe office of the Vice President, the Presidentshall nominate a Vice President who shalltake office upon confirmation by a majorityvote of both Houses of Congress.

"SEc. 3. Whenever the President transmitsto the President of the Senate and theSpeaker of the House of Representatives hiswritten declaration that he is unable to dis-charge the powers and duties of his office,such powers and duties shall be dischargedby the Vice President as Acting President.

"SEC. 4. Whenever the Vice President, anda majority of the principal officers of theexecutive departments or such other bodyas Congress may by law provide, transmit tothe President of the Senate and the Speakerof the House of Representatives their writ-ten declaration that the President is unableto discharge the powers and duties of hisoffice, the Vice President shall immediatelyassume the powers and duties of the office asActing President.

"SEC. 5. Whenever the President transmitsto the President of the Senate and theSpeaker of the House of Representatives hiswritten declaration that no inability exists,he shall resume the powers and duties of hisoffice unless the Vice President, and a major-ity of the principal officers -of the executivedepartments or such other body as Congressmay by law provide, transmit within twodays to the President of the Senate and theSpeaker of the House of Representatives theirwritten declaration that the President is un-able to discharge the powers and duties ofhis office. Thereupon Congress shall immedi-ately proceed to decide the issue. If theCongress determines by two-thirds vote ofboth Houses that the President is unable todischarge the powers and duties of the office,the Vice President shall continue to dis-charge the same as Acting President; other-wise the President shall resume the powersand duties of his office."

Mr. BAYH. Mr. President, SenateJoint Resolution 1 removes all doubtabout the Vice President succeeding tothe office of President.

There may be some Senators whomight believe it rather foolish to dealwith a problem of this kind when allAmerica takes it for granted. All Amer-ica does not take it for granted. Thereis significant constitutional authority,and constitutional scholars are con-cerned about the fact that there still isa scintilla of doubt as to whether thePresident, upon dying, is succeeded bythe Vice President who succeeds to theoffice as President, or merely assumesthe powers and duties of the office asActing President.

I ask Senators to recall with me thefirst tragedy which occurred when Pres-ident William Henry Harrison was lost,and he was succeeded by the then VicePresident Tyler. The first papers whichwere given to the new President to signcontained under his name the words"Acting President." Subsequently, aclose analysis of what our constitutionalforefathers discussed in the Constitu-tional Convention leads us to believe thatthere was good reason for including thewords "Acting President."

Inasmuch as Vice President Tyler de-cided that he did not wish to be actingPresident, that he wished to be Presi-

dent, he struck the word "acting." Eversince that time, it has become so en-trenched in the laws of the land that itis indeed the law of the land today.

We feel that we should remove anydoubt whatsoever about this issue.

The point is not so ridiculous as itseems because on December 10, 1963, fol-lowing the tragedy in Dallas, Tex., theNew York Times published an articleconcerning a New Mexico lawyer namedLeonard Jones, who had forwarded abrief to the Attorney General challeng-ing the right of President Johnson totake the oath of office as President,rather than the oath as Acting President.

I also point out that the 22d amend-ment to the Constitution which is a rela-tively recent amendment, reads in partas follows:

SECTION 1. No person shall be elected tothe office of the President more than twice,and no person who has held the office ofPresident, or acted as President-

I emphasize the word "acted"-for more than two years of a term to whichsome other person was elected President

*shall be elected to the office of the Presidentmore than once.

Therefore, in the recent history ofamending the Constitution, we have re-ferred to the possibility of the VicePresident perhaps being Acting Presidentinstead of being President. This can beremedied and should be, I feel-and willbe-by specifying, as we do, in section 1of Senate Joint Resolution 1, that uponthe death of the President, the VicePresident shall become the President.

It also provides that in the event there-is a Vice-Presidential vacancy either be-cause of death, resignation, or removal-of either Vice President or President,both cases of which would result in avacancy-the President would be nomi-nated by a majority vote in both Housesof Congress, and subsequently a newVice President would be elected, whowould, in fact, be the Vice President.

This formula provides, first, that therewould be a Vice President at all times;second, that there would be a Vice Presi-dent who would be acceptable to thePresident, a Vice President with whomthe President could work.

I hope all Senators will agree with methat at a time of international crisis,such as the death of a President in theUnited States, the last thing we wouldneed would be a Vice President withwhom the President could not get along.

Third, it would provide for a VicePresident who would have received avote of confidence and would have been,in fact, elected by the Members of bothHouses who have the responsibility forbeing close to the people and knowingwhat they desire and expressing theirwishes in Congress.

I should like to emphasize briefly forthe RECORD the importance of having aVice President at all times.

I do not believe that there is any of-fice in existence which has been sub-jected to more puns and ridicule at onetime or another in the history of ourcountry than the office of Vice President.This might have been well directed to-ward some Vice Presidents at an earlierage in the development of the country,

but today we have seen a rapid develop-ment in the office of Vice President tothe point where he is now a full-timeofficeholder.

Today, the Vice President is not a fig-urehead. He is the chief ambassadorof our country, traveling all over theworld carrying the flag and the good willof America with him. He sits in at Cab-inet meetings. He is a member of theNational Security Council. He is Chair-man of the National Aeronautic andSpace Administration. He is Chairmanof the President's Committee on EqualEmployment Opportunity. He presidesover the Senate. He has the opportu-nity-and I feel that he should-to re-lieve the President of many of the socialobligations which rest upon the Chief ofState.

In addition, the Vice President is onlyone heartbeat away from the most pow-erful office in the world.

Therefore, I believe that it is abun-dantly clear that we need provisions inthe Constitution to enable the UnitedStates to have a Vice President at alltimes.

Let me hastily point out that in thearea of succession Congress has dealtwith the problem on three occasions-in 1792, 1886, and 1894. On all threeoccasions it did not deal with replacinga Vice President or with the necessityof finding someone to serve as Presidentwhen the President was unable to per-form the powers and duties of his office,but only with the contingency that wouldarise when both the President and VicePresident were removed.

Let us pass quickly to sections 3, 4,and 5 of the joint resolution, which dealwith the inability of the President tocarry out the powers and duties of hisoffice.

Searching high and low for theintent of our Founding Fathers for areference to which I referred earlier,first, inability and, second, disability, wefind little solace in the notes on the Con-stitutional Convention. Only one ques-tion was raised on this point, and thatwas raised by John Dickinson of Dela-ware, wnen he rose on the floor andsaid:

What is meant by the term "disability,"and who shall determine it?

To that question no answer was given.That is the only reference to this sub-ject.

Mr. President, absent any direction byour Constitutional Fathers, we have beendrifting on a sea of indecision for thebest part of two centuries. We have notdealt with the admittedly complicatedproblem of Presidential inability.

Let us consider how Senate JointResolution 1 deals with the problem.

Section 3 specifies that the Presidentmay voluntarily declare his own dis-ability, and, upon doing so, and upontransmitting to the Speaker of the Houseand the President of the Senate his writ-ten declaration, the Vice President shallassume the powers and duties of theoffice as Acting President for the dura-tion of the President's illness or dis-ability.

Let me emphasize two things. TheVice President assumes only the powers

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February 19, 1965 CONGRESSIONAL RECORD- SENATE

and duties of the office, not the officeitself, and does not become President but,in fact, is only Acting President.

This, I think, is a reasonable assump-tion to make. It is an assumption whichthe Attorney General made in testify-ing before our committee. It is the as-sumption that Presidential power givenup voluntarily may be assumed in thesame manner in which it was given whenthe President desires to do so.

Mr. HRUSKA. Mr. President, will theSenator yield, or would he prefer to fin-ish his statement before yielding for aquestion?

Mr. BAYH. How extensively does theSenator wish to interrogate me?

Mr. HRUSKA. This deals with theVice President assuming the powers andduties of the Presidency as Acting Presi-dent. I should like to ask only a briefquestion on that point.

Mr. BAYH. I yield. I do not desireto avoid questions from my good friendfrom Nebraska, who I am sure has manypenetrating questions to ask. However,I would like to complete my statementand not yield if the questioning is to beextensive.

Mr. HRUSKA. I have only a briefquestion.

Mr. BAYH. I yield.Mr. HRUSKA. In regard to the ques-

tion of the Vice President assuming thepowers and duties of the President's of-fice, may I ask whether there is any lan-guage in the joint resolution for creatingthe office of Acting President if the VicePresident then in office is disabled andunable to act?

Mr. BAYH. There is not.Mr. HRUSKA. There is not?Mr. BAYH. No; not as long as there

is a Vice President who is merely ActingPresident, and the President is alive.

Mr. HRUSKA. But if the President isdisabled or is incompetent or for someother reason is not able to assume theduties and powers of the Presidency, un-der the joint resolution there will be nomeans by which a Vice President can beselected. Is that correct?

Mr. BAYH. The Senator is correct.I might elaborate on that point by giv-ing the feeling of the sponsors as wellas the members of the committee, bytrying to incorporate very quickly someof the testimony which was brought be-fore the committee. As the Senatorknows well, and as I mentioned a mo-ment ago, Congress has dealt with theproblem of Presidential and Vice-Presi-dential deaths in three succession acts.Therefore, the Speaker of the House isnext in line. We could become entan-gled in the question of separation ofPowers more than we have. Would theSpeaker have to give up his office or re-sign from Congress? We have dealt withthe two most important emergencies sofar as the Executive is concerned, first,the need to have a Vice President at alltimes and, second, to have an able-bodiedPresident. We feel that we should getthis provision into the Constitution andthen deal with some of the other eventu-alities and perhaps propose another con-stitutional amendment.

Mr. HRUSKA. That is one of theweaknesses in putting all these proce-

dures into a constitutional amendment.There is no flexibility which would becalled for in the event of a contingencywhich is not covered in a constitutionalamendment. It would necessitate a long,extended and rather tortuous courseunder another constitutional amend-ment.

Mr. BAYH. It depends on whetherthe Senator feels that the removal of thePresident from office even temporarilyis of such significance that we shouldincorporate within the Constitution cer-tain basic provisions that must be fol-lowed and the protections that must begiven to the President, such as the pro-tections already given, as in the case ofimpeachment, and such provisions asthat under the 12th amendment so faras only the President is concerned.

Mr. HRUSKA. In the amendmentwhich I understand will be offered bythe Senator from Illinois [Mr. DIRKSENI,provision is made for the contingency inthis language:

The Congress may by law provide forother cases of removal, death, resignation, orinability of either the President or VicePresident.

That contingency with respect to theVice President is not contained in SenateJoint Resolution 1.

Mr. BAYH. The Senator is correct.It is not.

Mr. HRUSKA. I thank the Senator.Mr. BAYH. I trust that we shall have

the opportunity to discuss in some detailthe relative merits of dealing with thequestion by statute compared with deal-ing with it by constitutional amendment,because I believe this is a question whichshould be discussed. I have certainstrong feelings on the question, whichare supported by a majority of the com-mittee-though my friend from Nebraskadisagrees with them-that a statutoryapproach would be insufficient to dealwith the problem. We have a differenceof opinion, to be sure.

Mr. HRUSK. I thank the Senator forhis courtesy.

Mr. ELLENDER. Mr. President, sincethe Senator from Indiana has yielded tomy good friend the Senator from Ne-braska, will he yield to me?

Mr. BAYH. I yield.Mr. ELLENDER. Article II of the

Constitution gives to the Congress somerights to determine who shall succeedthe President. Am I to understand thatone of the main purposes of the amend-ment is to provide for the selection of aVice President in the event the Presi-dent should die and the then Vice Presi-dent should succeed him?

Mr. BAYH. That is correct.Mr. ELLENDER. Does the Senator

from Indiana concede that, other thanproviding for a method of selecting aVice President, under the Constitutionthe Congress would have the right to doevery other thing that is provided in thejoint resolution?

Mr. BAYH. I am not certain that Iunderstand the question. The proposedconstitutional amendment would not inany way limit the powers which Congressalready has to deal with the subject.

Mr. ELLENDER. I am not speaking ofthat. Since the joint resolution relates

to ways and means of selecting a VicePresident should a President die and besucceeded by the then Vice President,could Congress now do everything thatis proposed in the joint resolution exceptthat part which relates to the selectionof the Vice President?

Mr. BAYH. In other words, the Sena-tor feels that Congress already has suf-ficient authority to deal with the ques-tion of disability.

Mr. ELLENDER. I am merely askingthe question.

Mr. BAYH. It is my opinion that thatis not the case.

Mr. ELLENDER. Will the Senatorpoint out why? Article II of the Con-stitution seems very specific. It pro-vides as follows:

In case of the removal of the Presidentfrom office, or of his death, resignation, orinability to discharge the powers and dutiesof the said office, the same shall devolve onthe Vice President-

If that should happen, we would nolonger have a Vice President, for hewould have taken charge.

Continuing to read from article II-and the Congress may by law provide forthe case of removal, death, resignation orinability, both of the President and VicePresident, declaring what officer shall thenact as President, and such officer shall actaccordingly, until the disability be removed,or a President shall be elected.

The Congress has the right to do allthose things now. I am wondering ifCongress does not now have the author-ity to do everything that is proposed inthe joint resolution we are now consider-ing except providing for ways and meansto select a Vice President.

Mr. BAYH. To be honest with theSenator from Louisiana, some Senatorsbelieve that Congress does have the au-thority. Others believe that Congressdoes not have the authority. The greatweight of the evidence before our com-mittee, including the message of thePresident of the United States and thetestimony of various Attorneys Gen-eral-including former Attorney Gen-eral Brownell and former Attorney Gen-eral Rogers-is to the effect that nowthere is no power to do the things con-tained in the resolution.

I should like to point out the, reasonbehind that attitude. The joint resolu-tion is supported by the American BarAssociation and many other similar as-sociations. Two very small words inarticle II, section 1, which the Senatorhas read, are pointed out particularly.I should like to reread that portion ofthe article:

In case of the removal of the Presidentfrom office, or of his death, resignation, orinability to discharge the powers and dutiesof the said office, the same shall devolve-

What did our Constitutional Fathersmean when they used the word "same"?Did they mean the office or the powersand duties of the office? There is agreat difference when we deal with dis-ability.

Mr. ELLENDER If a Presidentshould die and the Vice President shouldsucceed him, the Vice President wouldcertainly have the same powers as nowdevolve upon the President.

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Mr. BAYH. Still the question of thePresident coming in remains. If thePresident is dead and cannot resume thepowers and duties of the office, it doesnot make any difference whether he isActing President or President. As HenryClay said in discussing the subject whenTyler was making the decision, it is im-possible to separate the powers and du-ties from the office. Once the VicePresident has taken over from a sickPresident, it is impossible for the Presi-dent to resume his office if that is true.During the illness of President Garfieldthe unanimous feeling among membersof the Cabinet at that time was that VicePresident Arthur should act, that heshould take over. But it was the ma-jority feeling, which was supported bythe then Attorney General, that if hedid-if he once assumed the powers andduties of the office-Garfield upon re-covering could not take over the officeagain.

Mr. ELLENDER. As I interpret thelanguage of the Constitution, should thePresident be disabled, Congress could fixways and means whereby the Presidentcould take over again after the disabilitywas removed. The article states thatCongress has the power to take certainaction in the event of disability. Thelast part of the article states: "declaringwhat officer shall then act as President,and such officer shall act accordingly,until the disability be removed, or aPresident shall be elected."

That would indicate to me that if thedisability were removed, Congress couldcertainly fix ways and means by whichthe President who might be disabledcould resume the office.

Mr. BAYH. I should like to ask theSenator from Louisiana to go back tothe language immediately prior to thepoint at which he started reading thelast time.

Mr. ELLENDER. I am consideringthe entire section.

Mr. BAYH. I think we must look ateach word individually. In part, thesection states, "and the Congress may bylaw provide for the case of removal,death, resignation, or inability, both ofthe President and Vice President."

Mr. -ELLENDER. Yes.Mr. BAYH. There has been a con-

siderable amount of opinion that Con-gress could not provide relief by law un-less both the President and the VicePresident died. The first succession stat-ute which was passed was in 1792. Itmight be pointed out that many of ourconstitutional fathers who attended theConstitutional Convention were in thatCongress at that time.

If that had not been their interpreta-tion, it seems to me they would haveprovided for other contingencies thatwould not have required both the Presi-dent and the Vice President to be outof the picture before Congress could act.

Mr. ELLENDER. As I recall, Con-gress provided, without constitutionalamendment, for a succession to theoffice.

Mr. BAYH. But only in the eventboth the President and the Vice Presi-dent were involved.

Mr. ELLENDER. Yes; I understand.Mr. BAYH. We are now dealing with

only one of them.Mr. ELLENDER. I understand that.

But, as I have said, it is my belief thatthe language of the Constitution isbroad enough to permit the Congress todo the very thing which the Senator de-sires to be done under that joint resolu-tion which we are now discussing exceptthe selection and the method of selectinga Vice President.

Mr. BAYH. Although the Senatorfrom Louisiana and I apparentlydiffer-

Mr. ELLENDER. I am merely tryingto get information.

Mr. BAYH. I must say that if thequestion were in the balance-if a scalewere in front of me and I were asked tochoose which interpretation the Consti-tutional Fathers meant-it would be dif-ficult for me to decide. The distin-guished Senator from Louisiana and Ihave spent a great deal of time discuss-ing the question. I have tried to pointout that there is a considerable doubt onthe part of others. Should we not rec-oncile such doubt once and for all by in-serting in the Constitution an amend-ment which would provide for these con-tingencies? If we should be confrontedwith an implementing statute that hadbeen passed, we would be met with all theuncertainties of a court test every timewe needed to use the statute. Under theproposed amendment, at any time weshould need certainty of action, we wouldhave the whole procedure of court testsbefore us.

Mr. ELLENDER. That may be. Ipoint out that we may have a court teston the very language which we are nowdiscussing. I am surprised that we havenot had it up to now. As I recall VicePresident Stevenson came very close,although he did not go into court.

Mr. BAYH. The constitutionality ofa provision in the Constitution cannotvery well be tested.

Mr. ELLENDER. I am refering to aninterpretation of the provision.

Mr. BAYH. The constitutionality ofa constitutional amendment has beentested?

Mr. ELLENDER. The language couldbe tested for a determination of itsmeaning.

Mr. BAYH. That is correct. But itwould be necessary to test not only theintention of a statute but also its con-stitutionality.

We feel that there is sufficient doubtto warrant placing an amendment in theConstitution.

There is another reason for dealingwith the problem by constitutionalamendment. The distinguished Senatorfrom North Carolina [Mr. ERVIN] wasone of the strong proponents of thistheory in the Committee on the Judi-ciary. He said that by dealing with thesituation by constitutional amendment,certain guarantees of Presidential actioncould be provided. For example, a two-thirds vote is required by Congress beforethe President can be removed. But if itwere left to Congress to specify by lawwhat formula should be followed, thatcould best be done by a majority vote.

I believe that that would afford insu.cient protection for the President.

I believe we can deal with this problemnow, after long objective study of theproblem, and not be confronted with ahasty statute, which might be changedto meet the contingencies of the hour.

One of the basic reasons why we be-lieve there must be a constitutionalamendment is that it would provide thegreatest degree of certainty.

If I may proceed with my statement,Ishall try to answer questions later. Thisis a highly complicated area, as the Sen-ator from Louisiana knows.

I have just finished stating the historyof section 3, which permits the Presidentto relinquish the powers and duties ofhis office during the tenure of his dis-ability, and permits the Vice Presidentto assume those powers and duties asActing President.

I should like to cite one other factorthat might be an answer to the questionraised by the Senator from Louisiana.Although probably a statute would re-move doubts from the mind of the VicePresident, there has been much reluc-tance upon the part of previous VicePresidents, particularly Vice PresidentsArthur and Marshall, to consider exer-cising the powers and duties of the officeof President, because there were no stat-utory or constitutional provisions forthem to do so. We believe that this dif-ficulty should be cleared up once and forall, so that the Vice President can le-gally have the constitutional responsi-bility to act in the event the Presidentis unable to do so.

Section 4 provides for the eventualitythat the President is unable to make adeclaration of his own inability, or forother reasons does not declare hisown inability. In such an eventuality,Senate Joint Resolution 1 provides thatthe Vice President, acting with the con-currence of a majority of the principalofficers of the executive department, orsuch other body as Congress may by lawprovide, may, by submitting a writtendeclaration and transmitting it to theSpeaker of the House and the Presidentof the Senate, assume the powers andduties of the office of President.

It is my opinion that the Vice Presi-dent has the constitutional obligation toact in the event that the welfare of theNation demands it and the President isunable to perform the powers and dutiesof the office, and that the Cabinet-those who are closely associated with thePresident-could adequately protect thePresident from a coup or the usurpationof his office by a power-hungry VicePresident.

Section 5 provides for the very difficultsituation in which a dispute may arisebetween the President, on the one hand,and the Vice President and a majority ofhis Cabinet, on the other. For example,suppose the President says, "I have re-covered," but the Vice President and amajority of the heads of the executivedepartments say, "Mr. President, youmay be well enough to walk and talk, butwe who have had an opportunity to ex-amine you carefully and who know youwell believe you have not sufficiently re-

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covered, and that the best interests of thecountry dictate that the Vice Presidentcontinue to carry on the powers andduties of the office of President." In suchan eventuality, the Vice President and amajority of the Cabinet taking one posi-tion, and the President taking the other,the resolution provides the only solutionwhich I feel is feasible; namely, thatCongress shall decide this difficult ques-tion, and that a two-thirds vote of Con-gress shall be required to protect thepresident, similar to the two-thirds votewhich is required in impeachment pro-ceedings.

That is what Senate Joint Resolution1 attempts to accomplish. It seeks toprovide the Nation with a Vice Presidentat all times; to provide it with an able-bodied President, or Vice President act-ing as President, who can adequatelycarry out the powers and duties of theoffice of President.

A question was raised by the Senatorfrom Louisiana [Mr. ELLENDERI aboutthe need for a constitutional amend-ment. I should like to list some of thosewho have testified before our committeebelieving it is imperative that there bea constitutional amendment:

The present Attorney General, Mr.Katzenbach.

Former Attorney General Brownelland former Attorney General Rogers.

Presidents and past presidents ofState bar associations.

The American Bar Association Houseof Delegates has unanimously recom-mended that a constitutional amend-ment be adopted.

The Committee on Economic Develop-ment was emphatic in its recent studythat a constitutional amendment isrequired.

Paul Freund, a noted constitutionalscholar at Harvard University, wasequally emphatic.

Also, former President Eisenhower,former Vice President Nixon, Vice Presi-dent HUMPHREY, and, more recently,President Lyndon Johnson himself.

I should like to quote from the mes-sage that the President sent to Congresson this subject. He said:

I am, accordingly, addressing this com-munication to both Houses to ask that thisprevailing will be translated into actionwhich would permit the people, through theprocess of constitutional amendment, toovercome these omissions so clearly evidentin our system.

Believing, as I do, that Senate Joint Reso-lution 1 and House Joint Resolution 1-

House Joint Resolution 1 is a similarproposal and was introduced by Repre-sentative CELLER, chairman of the HouseCommittee on the Judiciary-would responsibly meet the pressing need Ihave outlined, I urge the Congress to approvethem forthwith for submission to ratifica-tion by the States.

As I said in my colloquy with the Sen-ator from Louisiana, the basic theory hasbeen that if there is a doubt as to whetheror not a constitutional amendment isneeded, we should be sure of our action.One of the main purposes for feeling thatthe controversial question of inability ofthe President should be settled by con-

stitutional amendment is to provide som,degree of certainty if the Nation is con-fronted with a disabled President. Deal-ing with the problem in statutory formalone would create all the uncertainty ofa court test of the constitutionality ofthe statute. That, we believe, should beavoided, if at all possible.

One of the most important elements ofthe ready transfer of executive authorityin time of crisis is to have widespreadpublic acceptance. On the horrible dayof November 22, 1963, when PresidentKennedy was no longer with us, the oneimportant fact for which we could thankGod was that Lyndon Johnson, a manwho was readily accepted as the VicePresident, was available to move into theoffice of President.

It is our feeling that a constitutionalamendment which is not only subjectedto the scrutiny of both Houses of Con-gress and requires a two-thirds vote, butalso must be ratified by three-fourths ofthe State legislatures has much widerpublic acceptance, and the public is muchmore aware of its terms than they areof a statute which is passed by a major-ity vote of both Houses of Congress.

The problems which I have discussedbriefly are so obvious that many haveasked me, "Why has not Congress solvedthese problems? Why has no thoughtbeen given to them?"

I have quickly come to the defense ofmy colleagues and our predecessors inthis body by saying that it is not truethat Congress has not dealt with theseproblems, and that no thought has beengiven to them. In the last session alone,we had 13 measures before the Subcom-mittee on Constitutional Amendments, ofwhich I am chairman.

This year more than 30 proposals arebefore the House of Representatives. Ifthere is any reason why we have notsolved the problem, it is not that we havenot given it much thought, but that wehave been unable to reach an agreementor consensus around which we couldrally a two-thirds majority.

At the risk of taking a copyrightedstory of my friend, the Senator fromNorth Carolina [Mr. ERVIN], I shouldlike to pay him the compliment of re-peating one of his typical exampleswhich he gave in- the debate last year.I think this very adequately describesour problem. It tells the story, if theSenator from North Carolina recalls, ofthe dog that had a bone. He looked intothe river and saw there the reflection ofanother dog who also had a bone. Hethereupon reached down and dropped hisbone into the river, and as a result he didnot have anything. This is the quandaryin which we in Congress have beendriven. Everyone has insisted on hisown ideas. Senate Joint Resolution 1 isnot my own amendment. It is not theamendment of any of the 70-odd cospon-sors of different measures. It is the re-sult of many hours of work and effort.Many Senators are to be complimented.The American Bar Association is to becomplimented.

Mr. ERVIN. Mr. President, will theSenator yield?

Mr. BAYH. I yield.

Mr. ERVIN. In addition to the Aesopfable about the dog with the bone, a veryapt adage is that "Too many cooks spoilthe broth."

A multitude of amendments wereoffered along this line in seeking to takecare of the situation. I introduced anamendment myself. I thought it wasrather good. But I think the reasonwhy we have progressed as far as wehave in this matter is that the Senatorfrom Indiana [Mr. BATH] recognizedthat too many cooks can spoil the broth.

If we try to get everything to accordwith our own notion, we get nothing.The Senator has recognized the need forclarification of a constitutional question.As a result of his fine example in thatrespect, other members of the Subcom-mittee on Constitutional Amendmentsand members of the full Committee onthe Judiciary have been influenced by hisexample and have sacrificed their indi-vidual views in an attempt to get someproposal that would recognize the prob-lem, the necessity for a solution to theproblem, and also that there must be agood deal of give and take.

I ask the Senator if one of the greatproblems which was before the commit-tee-was not the question whether, incase of a vacancy, the Vice Presidentwould be appointed by the President forthe sake of continuity in administration,or whether he should be elected by Con-gress for the sake of having some voiceexercised by the representatives of thepeople in the selection of a Vice Presi-dent.

Mr. BAYH. The Senator is correct.Those are two of the possibilities. Asthe Senator well recalls, two such pro-posals were before the Subcommittee onConstitutional Amendments. It was theopinion of the subcommittee, plus thatof the American Bar Association in theirconsensus group, and the full Committeeon the Judiciary, that by combining bothpresidential and congressional action, wewere doing two things. We were guaran-teeing that the President would have aman with whom he could work. We werealso guaranteeing to the people theirright to make that decision.

Mr. ERVIN. If my recollection servesme correctly-and if it does not, theSenator from Indiana can correct me be-cause he has given great study to thismeasure-one of the things that formerPresident Eisenhower emphasized wasthe necessity of having continuity of ad-ministration through a Vice Presidentwho was a member of the same party asthe President. He laid more stress onthat than on any other one thing in hisadvocacy of congressional action.

Mr. BAYH. The Senator is correct.As the Senator well knows, PresidentEisenhower who, more than any otherliving American, has had to deal with theproblem of presidential inability, laidparticular stress on the fact that thisis a particular responsibility which theVice President cannot escape.

Mr. ERVIN. The Senator from Indi-ana will recall that I introduced anamendment to provide not only for theelection of the Vice President by Con-gress, but also for the selection by Con-gress on the theory that Congress was

3255

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Mr. BAYH. The Senator is correct.The Senator from Indiana felt it to beimportant that we should get a planwhich would work, rather than any par-ticular plan.

Mr. ERVIN. Mr. President, I ask theSenator from Indiana if the committee,after studying the proposals from bothinside and outside of Congress, did notfinally come to the conclusion that thebest thing to do to reconcile these dif-ferences and give added protection tothe people would be to let the Vice Presi-dent be nominated by the President, sothat there would be continuity of ad-ministration in the man who might besent to the office of the Presidency.

Mr. BAYH. The Senator is correct.Mr. ERVIN. Was it not also felt that

in order to keep the President from be-ing a dictator, it was necessary that thenomination should be confirmed by theSenate?

Mr. BAYH. The Senator is correct.As the Senator pointed out in commit-tee, there is some precedent, althoughnot exactly on point, in the advice-and-consent provisions that the U.S. Senatehas in dealing with executive appoint-ments, and the great power that thePresident has to nominate his own VicePresident in our convention.

Mr. ERVIN. This is really a concilia-tion of divergent views to facilitate thepresentation of the amendment and giveus assurance that the President will nom-inate the man and Congress will electhim, thus insuring that he would be agood, capable man who could cooperatewith the administration.

Mr. BAYH. The Senator is correct.Mr. ERVIN. I was interested in the

colloquy engaged in by the senior Senatorfrom Louisiana and the Senator fromIndiana a moment ago with reference tothe power of Congress. Does not theSenator from Indiana agree with theSenator from North Carolina that itwould devolve upon Congress to desig-nate the succession to the Vice-Presi-dency, and then to the Presidency, thatnecessarily we cannot designate indi-viduals, but would have to designate theoccupants of the particular offices, as wehave always done in times past?

Mr. BAYH. The Senator is correct.Mr. ERVIN. It would be conceivable,

while that situation does not exist at thepresent moment under the successionstatute, that the office of Vice Presidentor President, under such a succession,could fall upon a man who was not quali-fied for the position.

Mr. BAYH. The Senator is correct.Mr. ERVIN. He might be a man in

whom the people would not haveconfidence.

Mr. BAYH. The Senator is correct.Mr. ERVIN. And so, instead of hav-

ing the man arbitrarily determined, re-gardless of what his particular qualifica-tions for the Vice-Presidency might be,this resolution would allow the selectionto be made when the vacancy actuallyoccurs; and then conceivably, of course,the President and Congress togethercould select the best qualified man.

Mr. BAYH. I am of the opinion that,with the provisions to which the Senatorhas referred, we would have a Presidentwho would be under close public scrutiny,when the main ingredient for consid-eration would be the qualifications of theman to succeed in that office.

Mr. ERVIN. Does not the Senatorfrom Indiana agree with the Senatorfrom North Carolina that the proposedamendment provides the most practicaland workable solution of this problem, inthat when the President is mentally ca-pable of recognizing his disability, it pro-vides a very easy and painless process bywhich that disability can be established?

Mr. BAYH. I believe this measure isas close as we are going to come to aworkable plan.

Mr. ERVIN. In addition, in the ad-versary procedure, a majority of themembers of the Cabinet must take ac-tion, and that action is subject to reviewby Congress.

Mr. BAYH. In essence, this actionwould have to be taken twice by the VicePresident and Cabinet. I point out thatthe members of the Cabinet have beenappointed by the President. They arefriends of the President. They would beseeking to establish disability. Theywould make the declaration that thePresident was unable to perform hisduties. He might make a declarationthat he was able. The members of theCabinet would have to make a secondserious deliberation and declaration thathe was unable to do so. Then two-thirdsof the Congress would have to affirm thataction. That is more protection than isgiven to a President in the event of im-peachment, because it takes only a two-thirds vote of the Senate to convict anda majority of the House to impeach,whereas in this particular instance actionis required by two-thirds of both Housesof Congress.

Mr. ERVIN. That would take care ofpreventing a situation such as occursin South Vietnam, where the governmentchanges almost from day to day.

Mr. BAYH. That is correct.Mr. ERVIN. Is it not true that the

requirement of a two-thirds vote pre-vented a tragic event in our history,when it was attempted to convict Presi-dent Johnson? The impeachment failedby one vote because the Constitu-tion provided for a two-thirds vote toconvict. It would have been a tragicevent if President Johnson had been con-victed because only a majority vote in-stead of a two-thirds vote had been re-quired.

Mr. BAYH. There have been many oc-casions when Congress has been con-trolled by one party and the Presidenthas been a member of the opposite party.Most Congresses would not attempt to re-move a President because of political ex-pediency, but let us be certain that wedo not tempt some future Congress. Letus require a two-thirds vote for suchaction.

Mr. ERVIN. Is it not true that recom-mendations have been made for someaction to be taken by a constitutionalamendment to clarify this subject byboth former President Eisenhower and

Vice President Nixon, who was con.fronted with the problem of presidentialdisability during President Eisenhower'sadministration; also, was it not recom-mended by the late President John p•Kennedy, and is it now not recommendedby President Johnson?

Mr. BAYH. In all honesty, I do nothave the record of the late PresidentKennedy's position on this question. Iknow of no statement he made publicly.But everyone else to whom the Senatorhas referred is on record. We have writ-ten testimony in the committee hearingsfrom both the former President and VicePresident, as well as the present Presi-dent and Vice President.

Mr ERVIN. I thank the Senator foryielding. I commend him for the workhe has done as chairman of the Subcom-mittee on Constitutional Amendmentsand for bringing this measure to the floorof the Senate. It is due more to his ef-fort than that of the other members ofthe committee that the proposed legisla-tion is in as fine a form as it is.

Mr. BAYH. I thank the Senator fromNorth Carolina for his kind remarks.Much as I appreciate them, I do not be-lieve I deserve that praise. It has beenmy responsibility as chairman of theSubcommittee on Constitutional Amend-ments and author of one of these meas-ures to try to work out a solution. Itwould have been impossible to get as faras we have gone if it had not been for thehelp of Senators who have studied thisproblem over a longer period of yearsthan I have. Many of our colleagueshad measures which they were willing toforgo in order to come to a consensus.

There may have been times in the his-tory of our country when the health of aparticular President at a given hour wasnot of international importance, or whenthe existence of an able-bodied VicePresident was not of international im-portance, when the pigeon was our mostrapid means of communication, whenhorse-drawn caissons were one of theprime ingredients of an artillery unit.Perhaps it would not have been too badin those days, but now we can movearmies halfway around the world in amatter of hours, and we can destroy ourentire civilization in a matter of minutes.I believe it is imperative that we takesome action. This has been a give andtake and we have come up with a con-sensus. History has been trying to teachus a lesson. I suggest that we try tolearn from that lesson. We should ac-cept this measure and send it to the Statelegislatures.

Mr. ELLENDER. Mr. President, willthe Senator yield for a question?

Mr. BAYH. I yield.Mr. ELLENDER. The distinguished

Senator from Indiana has stated that heplaced a great deal of confidence in themembers of the Cabinet and in theirbeing able to act. Why the provision inthe joint resolution for some other bodyto pass upon this matter? Why bringCongress into it, since the Senator wantsto make it more or less definitive? Whynot make it specific that the Cabinet, bya majority, and the Vice President shalldecide the question? Why is it neces-

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sary to put it in the hands of Congressby giving Congress the right to appoint abody which it might see fit to select?

Mr. BAYH. That provision was in-cluded in the original measure as a re-sult of the consensus for which we havestriven. I hope Congress will pass uponit, but I am certain that the Senator willadmit that Congress is not infallible.We cannot foresee all contingencies. Wedo not know whether the Cabinet willreach an insurmountable obstacle. Thismeasure provides that some other bodyin the future can be provided for, givingit some flexibility.

Mr. ELLENDER. Does the Senatormean that if a majority of the Cabinetcould not act and choose, Congress wouldthen provide for the selection of a groupwhich might do so?

Mr. BAYH. If the Cabinet approachproved unworkable, Congress could pro-vide another body. This would have tobe done by law, and the Congress wouldhave to override a veto, if there were one.

Mr. ELLENDER. Suppose the VicePresident is not in accord with the Cabi-net members, does the Senator believethat if Congress tried to provide a sepa-rate body, as this recommendation indi-cates, the Vice President might betempted to veto such a measure?

Mr. BAYH. The Vice President?Mr. ELLENDER. Yes. I mean, if he

is Acting President.Mr. BAYH. I am not certain I under-

stand the Senator's question, because thedecision has already been made.

Mr. ELLENDER. But the Senator, asI understand it, has not been specific.Evidently this provision has been sub-mitted to satisfy some Senators or some-one who favors the bill.

Mr. BAYH. The feeling is that weneed a degree of flexibility so far as thatparticular part of the bill is concerned.

Mr. ELLENDER. When would such abody be selected by Congress? Underwhat conditions could the Congress act?

Mr. BAYH. At any time the Congressfelt that the Cabinet was serving as anarbitrary obstacle to what was in the bestinterests of the Nation, namely, the Presi-dent was obviously deranged, yet theCabinet would not cooperate with theVice President-I suppose it could, andit could attempt to establish anotherbody.

Mr. ELLENDER. That would have tobe done by an act of Congress.

Mr. BAYH. The Senator is correct;that would have to be done by an act ofCongress.

Mr. ELLENDER. I presume that theacting President would have the right toveto the measure?

Mr. BAYH. The Senator is correct;I am sure he would have that right.

Mr. ELLENDER. Suppose the VicePresident acts with the Cabinet, and heis in favor of what the Cabinet does, andCongress should pass such a measure, hecould veto it?

Mr. BAYH. He could veto it; that iscorrect.

Mr. ELLENDER. Does not the Sena-tor believe that the Vice President wouldbe tempted to do it, if he is not in agree-ment with the decision reached by theCabinet?

CXI--207

Mr. BAYH. The only time that Con-gress would provide another body wouldbe when it was in disagreement with theVice President, I would think. If theVice President is in office, if he has as-sumed the powers and duties as ActingPresident, he must have acted in agree-ment with the Cabinet. Then the Con-gress would have to feel that the Cabinetor the Vice President acted wrongly,would it not, and that the Vice Presidentshould not be there.

Congress has that power now, one-third plus one can keep the Vice Presi-dent from continuing in office now. Itwould take two-thirds to override a veto,but would need only one-third plus one.

Mr. ELLENDER. As I understood theSenator a while ago, he wished to makethis resolution cover all and leave Con-gress out. As I stated a while ago, itwould seem to me that Congress has theright or the power to do everything thatthis resolution provides, except the meth-od of selection of a Vice President. I amsurprised that the resolution shouldbring in the Congress to be able to createa body in the event of disagreement be-tween Cabinet and Vice President.

Mr. BAYH. It is entirely a differentset of circumstances, it seems to me, al-though I have no objection to Congressdealing with it. Presently, I do not feelthat it has the constitutional authority.I am suggesting and the resolution issuggesting that Congress should be keptin as a check and a balance.

Mr. President, at this point I shouldlike to yield briefly to the Senator fromIllinois [Mr. DIRKSEN].

Mr. DIRKSEN. I thank the Senatorfrom Indiana for yielding to me.

Mr. President, I should like to submitamendment No. 33, and ask that it bestated.

The PRESIDING OFFICER (Mr.HARRIS in the chair). The amendmentwill be stated for the information of theSenate.

The LEGISLATIVE CLERK. It is intendedto be proposed by Mr. DIRKSEN as a sub-stitute for the language of Senate JointResolution 1:

That the following article is proposed asan amendment to the Constitution of theUnited States, which shall be valid to all in-tents and purposes as part of the Constitu-tion when ratified by the legislatures ofthree-fourths of the several States withinseven years from the date of its submissionby the Congress:

"ARTICLE -

"In case of the removal of the Presidentfrom office or of his death or resignation, thesaid office shall devolve on the Vice President.In case of the inability of the President todischarge the powers and duties of the saidoffice, the said powers and duties shall de-volve on the Vice President, as Acting Presi-dent until the inability be removed. TheCongress may by law provide for other casesof removal, death, resignation, or inability,of either the President or Vice President, de-claring what officer shall then be Presidentor Vice President, or in case of inability, actas President, and such officer shall be or actas President accordingly, until a Presidentshall be elected or, in the case of inability,until the inability shall be earlier removed.The commencement and termination of anyinability shall be determined by such methodas Congress may by law provide."

Mr. DIRKSEN. Mr. President, I shallnot discuss the amendment at this mo-ment. I am grateful to the Senator fromIndiana [Mr. BAYHI for permitting me tooffer it at this time. It is actually a sub-stitute for the entire proposal that comesfrom the committee.

Mr. SIMPSON. Mr. President, willthe Senator from Indiana yield?

Mr. BAYH. I yield.Mr. SIMPSON. Mr. President, let me

first of all compliment the able and dis-tinguished junior Senator from Indiana[Mr. BAYHI for a very fine presentationwith respect to this all important subject.

Mr. President, as a cosponsor of thisproposed legislation, the record has beenfilled with interesting materials on thehistory of this Nation which clearlyshows the need for complete and ade-quate laws regulating the succession tothe office of the President of the UnitedStates. A great many Members of Con-gress have made reference to the daysof President Eisenhower's illnesses andthe questions that arose during that timeabout the authority of the office of thePresident and the responsibilities of theVice President.

In earlier history, the administrationsof Presidents Garfield and Wilson werechallenged by the same questions. For-tunately, the Nation was permitted toendure these times of crisis and hasgrown and prospered in spite of the in-adequacies and doubts that we haveconcerning the highest office in the land.

Directly relating to the problem ofPresidential inability is that of a vacan-cy in the office of Vice President. Thatoffice has been vacated 16 times in theNation's history for a total period of38 years.

In past years, the office of Vice Presi-dent was subject to more ridicule thanrespect, but such is not the case today.Vice President Richard Nixon brought anew respect to the office because of theyeoman service that he gave to the Na-tion and to the world. The Vice Presi-dent is the possible successor to theNation's highest office. He has manyresponsibilities. I feel there is ampleevidence that the United States needsa Vice President at all times. I believethat the constitutional proposal we arediscussing today sets forth a reasonableand complete plan for providing forPresidential inability and vacancies inthe office of Vice President.

I am pleased to have been a cosponsorof this proposed constitutional amend-ment, both in the 88th and the 89thCongresses. As indicated, the need forthis type of action is long overdue. Un-fortunately, it was not until the tragedyof November 1963, that we realized thepossible consequences of not having aclear and adequate plan for successionto our executive offices.

Many of the great legal mindsthroughout the country have studiedthis proposed constitutional amendmentand I believe, for the most part, are infull support of it. It is the simplicity ofthe proposal that gives it strength and,thus, makes it appealing.

The first section of the resolution pro-vides that the Vice President will become

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CONGRESSIONAL RECORD - SENATE February 19, 1965President in the case of death or resig-nation of the President. When there isa vacancy in the office of the Vice-Presi-dency, the President is to nominate aVice President who will take office uponconfirmation by a majority vote of bothHouses of Congress.

Section 3 provides that if the Presidentdeclares in writing that he is unable todischarge the powers and duties of hisoffice, the Vice President shall act asPresident.

Under the terms of this proposed con-stitutional amendment, the Vice Presi-dent and the majority of the Cabinetmembers can determine the President tobe disabled. If the President disputesthe decision of the Vice President andthe Cabinet members, Congress will de-cide the issue.

Seldom does the Senate agree unani-mously on a problem of such magnitudeand importance as is this proposedconstitutional amendment on presiden-tial inability and vacancies in the officeof Vice President, but last year when weconsidered the matter, there was not adissenting vote.

It is my hope that this proposal willreceive the approval of Congress and thenecessary States so that the people ofAmerica can be assured that we will havea leader to deal with any crisis that mayarise. I am proud to support thisproposal.

Mr. BAYH. I thank my colleague, thedistinguished Senator from Wyoming[Mr. SIMPSON], for his articulate pres-entation.

Mr. STENNIS. Mr. President, a par-liamentary inquiry.

The PRESIDING OFFICER. TheSenator from Mississippi will state it.

Mr. STENNIS. Does the Senator fromIndiana have the floor?

The PRESIDING OFFICER. TheSenator from Indiana [Mr. BAYH] yield-ed to the Senator from Wyoming [Mr.SIMPSON].

Mr. BAYH. Mr. President, I have fin-ished my presentation. I am ready toaccept any questions Senators may wishto ask.

Mr. TYDINGS. Mr. President, willthe Senator from Indiana yield?

Mr. BAYH. I yield.Mr. TYDINGS. One of the points

made by the distinguished Senator fromLouisiana [Mr. ELLENDER] questionedthe language in section 4, which readsas follows:

Whenever the Vice President, and a ma-jority of the principal officers of the execu-tive department of such other body as Con-gress may by law provide-

This seems to be one of the phraseswhich was providing some concern to theSenator from Louisiana [Mr. ELLENDER].

My recollection of the committee hear-ings is that the reason for inserting thelanguage "principal officers of theexecutive department or such otherbody as Congress may by law provide"was occasioned by the history of the de-velopment of our Cabinet. Originallythe Cabinet consisted of four members.Subsequently, it was enlarged. Todaythe Cabinet consists of 10 members.

It was felt that perhaps in anotheryear or two Congress might create a new

post in the Cabinet. Congress might feelthat the Chairman of the National Se-curity Council or some other importantofficial ought to be included in the Cabi-net.

Therefore, we wanted to provide alittle flexibility in the constitutionalamendment, so that Congress could ad-just the circumstances as it wished.

That is my recollection of the princi-pal reason why this language was placedin the joint resolution.

NEED FOR FOLLOW-ON MANNEDBOMBER

Mr. STENNIS. Mr. President, I mustagain express my mounting concern andalarm over what I consider to be a dan-gerous and unwarranted gamble withour future national security. I refer tothe continued and deliberate delay inauthorizing the development of a follow-on strategic bomber.

As the Senate will recall, the Secre-tary of Defense last year requested only$5 million for this program. The Con-gress, however, took a different view andauthorized and appropriated $52 mil-lion in fiscal year 1965 funds for an ad-vanced manned strategic aircraft. Thiswas done after Gen. Curtis E. LeMay,then Chief of Staff of the Air Force, hadtold us positively and flatly that it wasof the utmost urgency that action becommenced immediately for the orderlyand expeditious development and ulti-mate procurement of a new bomber.General LeMay, in his characteristicfrank and candid fashion, said:

I am afraid the B-52 is going to fall aparton us before we can get a replacement forit. There is a serious danger that this mayhappen.

This warning and advice of the world'sgreatest expert on strategic airpowerwent unheeded by his civilian superiors.The development of a follow-on stra-tegic bomber as a system was not ap-proved. Only a portion of the $52 mil-lion appropriated by the Congress wasreleased by the Secretary of Defenseand the funds which were released wereprimarily for the study of propulsion sys-tems and avionics. While these mattersare, of course, important in the devel-opment of a follow-on manned aircraft,they are of general application in theaviation field.

The situation is the same this year.The defense message which the Presidentsent to the Congress on January 18, 1965,made it clear that the follow-on mannedbomber is still being delayed. The Presi-dent said we are "continuing develop-ment of engines and other systems foradvanced aircraft to retain our optionfor a new manned bomber. I completelydisagree, I think the need has alreadyarisen."

This subject has been before Congressmore than once in the last 2 or 3 years,and time and again it has appropriatedadditional funds for this purpose, buteach time only a portion of the moneyappropriated has been released.

Let us take a look at the facts. Forthe first time in the history of Americanstrategic air power, there is no follow-onmanned bomber under development.

Our B-47 aircraft are being phased out.The B-52 has been in the inventory formore than 10 years and it is only throughcostly modifications that the service lifeof these aircraft can be extended. Morethan $300 million is being requested inthe fiscal year 1966 budget for this pur-pose. Two squadrons of the earlier andolder B-52's are already being phasedout.

These 52 bombers, on which we relychiefly, have not been produced since1962.

In the absence of a program for de-veloping a follow-on bomber, the modi-fication of the B-52's appears to be anessential but risky venture-essential be-cause we have no other choice in thelight of the decision not to proceed withthe development of a new aircraft--risky because there can be no guaran-tee that these aircraft will be capable ofperforming their mission in the 1970's orthat they will not be subject to somecatastrophic failure from fatigue and oldage, with an attendant and tragic loss ofAmerican lives which could be avoidedby timely action.

The remaining strategic bomber-theB-58-will also be obsolete in the1970's. Only about 80 of these aircraftare in the operational inventory. Thelast one came off the production line inthe fall of 1962.

Thus, the two strategic aircraft whichwill remain in the operational inventoryafter the phase out of the B-47's, thatis, the B-52's and the B-58's, were bothdesigned and developed in the 1950's.Both have proved themselves to be ex-cellent weapons systems. However, withthe passage of the years, both will be-come increasingly ineffective and willultimately die as a result of fatigue andoperational use for which they were notdesigned.

Under present planning, there islittle prospect of an early start onthe actual development of a newbomber. As a matter of fact, there isno assurance that the effort will everadvance beyond the current low levelstudy phase. Even if a decision to goahead was made today, it would be per-haps 8 to 10 years before the new bomb-er could join the operational inventoryin significant numbers. Thus, underpresent planning, we will enter the 1970'swith the bulk of our strategic aircraftfleet being 15 years old. Never before inour history-not even in the lean yearsprior to World War II-have we dared toplace our strategic airpower relianceupon a 15-year-old plane.

We are, therefore, faced with the pros-pect of a tremendous and dangerous gapin our strategic bomber capabilities. Theinevitability of this gap will become morepronounced each day that the decision toproceed with the follow-on bomber ispostponed.

We have a tremendous investment--built up over the past 20 years-in ourstrategic retaliatory forces. They nowconstitute a superb offensive fightingmachine which has been successful indeterring a general nuclear war. By itsawesome capability and overwhelmingsuperiority, this force has maintainedthe uneasy peace and has discouraged

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February 19, 1965 CONGRESSIONAL RECORD -SENATE

lions of dollars. But suppose it cost anumber of billion dollars. If it wouldsave the lives of millions of Americans,which it is admitted it will do-it is saidthat it would save 30 or 40 million Amer-icans-I say it is worth the cost.

Further, the destruction that could bewrought in one or two of the cities in thisNation alone would amount to as much asthe cost of moving forward with thatsystem. I think we are making a mis-take in not moving forward and buildingthe antiballistic missile system. I thinkwe are making a mistake in not goingforward and building these strategicbombers which we need in order to havea deterrent to the Communists. Thiswould be a credible deterrent. Buildingthese bombers would help to avert a war.Building these bombers and having themready to go would be a tremendous de-terrent. It might keep this country outof an all-out war.

I commend the able Senator from Mis-sissippi for calling attention to this im-portant matter at this time. I hope thatCongress will not delay any longer onthis matter.

Mr. STENNIS. Mr. President, I thankthe Senator.

I was asked a question by the. Senatorfrom Ohio concerning some budgetaryfigures. As I said, there is $3 millionprovided in the 1966 budget for systemstudies of a new manned bomber. Thisis a relatively small amount for a matteras important as this. It will mean thatthe system studies will necessarily beon a low-level basis.

In the 1966 budget there is also $24million for propulsion and $12 millionfor avionics. These matters are, ofcourse, important in the development ofan advanced strategic bomber. But theyare also of more general application andtheir finding does not mean that therehas been a decision to go ahead with anew bomber system. In fact, it is clearthat the decision is not to go aheadwith this. My plea is for a "green light"for the development of a follow-onbomber as a weapon system. I believewe should go ahead as soon as possible.Anything short of that will not meet thedemands of our future security. If it re-quires $50 million or more in 1966, to giveit the high priority that it really deserveswe should provide it.

Mr. CARLSON. Mr. President, willthe Senator yield?

Mr. STENNIS. I yield.Mr. CARLSON. I commend the dis-

tinguished Senator from Mississippi forcalling the attention of the Senate andthe country to a situation that concerns,I am sure, every Member of Congress.That situation pertains to the futurestrategic bombers that are to be built toProtect this great Nation. Those of uswho have followed the development ofthese planes in the past have been greatlyconcerned over their deterioration, theirbeing phased out, and the fact that noeffort, or at least no substantial effort,is being made to begin to get the planson the drawing boards.

I was amazed at the figures read bythe Senator from Mississippi concerningthe amount that we are to spend on re-search and development of planes that

are absolutely necessary if we are to pre-serve the defense of this great country.

I commend the Senator for calling at-tention to this matter.

Mr. STENNIS. I thank the Senator.I hope that my presentation of this in-formation will bring it into focus for theconsideration of the proper committeeswhen they study our military program.

Mr. ERVIN. I ask the Senator fromMississippi if one vital distinction be-tween a missile and a long-range bomberis not that when the missile is once fired,it is gone forever.

Mr. STENNIS. The Senator is correct.Mr. ERVIN. A long-range bomber can

carry a load of bombs and, if it is notshot down, it can come back and carryanother load.

Mr. STENNIS. The Senator is correct.It is ready for use again. It has thathuman brain in it, too.

Mr. ERVIN. Mr. President, I ask theSenator if a normal missile would beequipped to carry a nuclear warhead.

Mr. STENNIS. The Senator is correct.Mr. ERVIN. On the contrary, a long-

range bomber can carry a load of con-ventional or nuclear bombs, dependingupon which is advisable in the particularmovement that is being made.

Mr. STENNIS. The Senator is cor-rect. All it requires is changing the bombracks.

Mr. ERVIN. They are more flexible.Mr. STENNIS. The Senator is cor-

rect. Their great virtue is their flexi-bility.

Mr. ERVIN. Mr. President, I ask theSenator from Mississippi if most of themissiles are not stationary, and there-fore subject to hostile action.

Mr. STENNIS. The Senator is cor-rect. They are sitting targets. Thequestion is, How well can we protectthem? We think we have them pro-tected as well as man can protect them.But there is a question of whether that issufficient protection.

Mr. ERVIN. Is it not true that long-range bombers could be placed in motionin the event of a hostile attack, andtherefore they are far less vulnerable toattack than a missile?

Mr. STENNIS. The Senator is cor-rect.

Mr. ERVIN. I know that the Senatorfrom Mississippi, because of his serviceon the Armed Services Committee, be-lieves, as I do, that we need an adequatenumber of both missiles and long-rangebombers.

Mr. STENNIS. That is the mixed con-cept that we have been talking about.We do not want to detract from our mis-siles. But there is always some uncer-tainty about being able to protect them.There is some uncertainty as to the ex-tent to which they are vulnerable. Toabandon the concept of a new bomber isunthinkable to me.

Mr. ERVIN. Does not the Senatorfrom Mississippi know, as a member ofthe Armed Services Committee, that vir-tually all the men who have devoted theirlives to the military service and havespent their days and nights studying howthis country should be defended, recom-mend that we should have a program forrenewing our long-range bombers?

Mr. STENNIS. The Senator is cor-rect. I quoted some of the chief ones afew moments ago.

Mr. ERVIN. Does not the Senatorfrom Mississippi agree that when we getdown to the fact that we cannot foretellwhat precise weapons we shall need inthese two areas or whether we need themboth, it is the height of folly for the sakeof economy or anything else, not to beprepared with both missiles and long-range bombers?

Mr. STENNIS. We cannot afford todo otherwise.

Mr. ERVIN. There is no advantagein having Uncle Sam become the richestman in the graveyard by virtue of havingsaved some money that should have beenspent for long-range bombers.

Mr. STENNIS. The Senator has ex-pressed it very well, as usual.

I shall review quite briefly the figures Icited a moment ago-$3 million is pro-vided in the 1966 budget for systemstudies, $24 million is provided for pro-pulsion, and $12 million for avionics.But those in the Air Force who know tellme that they do not understand thatthis is in any way earmarked for a newbomber system or that such a system hasbeen approved by the Secretary of De-fense.

I hope that in our hearings, and in theprocess of considering the budget, we canget a promise to earmark an adequateamount for a new manned bomber sys-tem. Then we can put in such addi-tional amounts as we find necessary forother weapons and other airplanes. Cer-tainly, some of the technology applicableto an advanced manned bomber-such aspropulsion and avionics-is also appli-cable to other aircraft. But we ought tomake a start now on a bomber system.

As I have said, I think this matterought to be brought up early this yearand discussed fully. I hope Mr. Mc-Namara will be able to assure us in thehearings that he will give a green lightto a new bomber system and that ade-quate funds will be made available forthis purpose if they are appropriated bythe Congress.

PRESIDENTIAL AND VICE-PRESI-DENTIAL SUCCESSION-PRESI-DENTIAL DISABILITYThe Senate resumed the consideration

of the joint resolution (S.J. Res. 1) pro-posing an amendment to the Constitu-tion of the United States relating to suc-cession to the Presidency and Vice-Presi-dency and to cases where the Presidentis unable to discharge the powers andduties of his office.

Mr. BAYH. Mr. President, I wish toyield to the distinguished Senator fromHawaii [Mr. FONG].

Mr. FONG. Mr. President, as a co-sponsor of Senate Joint Resolution 1 andas a member of the Judiciary Subcom-mittee on Constitutional Amendments, Ishould like to compliment and highlycommend the distinguished junior Sena-tor from Indiana for his dedication, hardwork, diligence, and constant effort indrafting and guiding this critically im-portant legislation through the sub-committee and the Judiciary Committee.

3261

CONGRESSIONAL RECORD - SENATE February 19, 1965The Senator from Indiana has cer-

tainly done yeoman service in this re-gard and has given the subject long,deep, and scholarly thought. He haslistened with great patience to the ad-vice and counsel of the country's out-standing political scientists and otherleading experts in this matter. He hasforged a proposal from these consider-able resources and has produced an out-standing document that is a practicaland workable solution to the problemsof presidential disability and vice-presi-dential vacancies.

The joint resolution before us istherefore a product of considerablethought and effort and represents a con-sensus of many proposals.

Two years ago, the tragic assassina-tion of President Kennedy pointed uponce again the urgent need to resolvethese two critical gaps in the U.S. Con-stitution.

First. The Constitution does not sayanything about what should be donewhen there is no Vice President. Noone in America today doubts that theVice President of the United States to-day carries very vital functions of ourGovernment.

He is the President's personal repre-sentative and emissary; he is a memberof the Cabinet; Chairman of the NationalAeronautics and Space Council; memberof the National Security Council; headof the President's Committee on EqualEmployment Opportunity; and he takespart in other top-level discussions whichlead to national policymaking decisions.

The modern trend toward the increas-ing importance of the Vice-Presidencybegan with President Franklin D. Roose-velt. President Eisenhower furtheredthis trend greatly in assigning Vice Pres-ident Nixon many duties of critical im-portance, and President Johnson hasmade it very clear that he intends tomake it an even more important office.

Ever since Vice President John Tylertook over the Presidency in 1841, whenPresident William Henry Harrison died,this precedent has been confirmed onseven occasions. Vice Presidents Fill-more, Andrew Johnson, Arthur, Theo-dore Roosevelt, Coolidge, Truman, andLyndon Johnson all became Presidentin this manner.

Besides his many duties, the Vice Pres-ident is the man who is only a heartbeataway from the world's most powerful of-fice.

Yet, on 16 different occasions in ourhistory the Nation has been without aVice President.

The security of our Nation demandsthat the office of the Vice Presidentshould never be left vacant for long, suchas it was between November 22, 1963, andJanuary 20,1965.

Second. The Constitution does not sayanything about what should be donewhen the President becomes disabled,how and who determines his disability,when the disability starts, when it ends,who determines his fitness to resume hisoffice, and who should take over duringthe period of disability.

In short, there is no orderly constitu-tional procedure to decide how the awe-

some and urgent responsibility of thePresidency should be carried on.

Third. The Constitution also is un-clear as to whether the Vice Presidentwould become President, or whether hebecomes only the Acting President, if thePresident is unable to carry out the dutiesof his office.

These are very closely related prob-lems, since they involve the devolutionand orderly transition of power in timesof crisis.

Mr. President, as a member of the Sub-committee on Constitutional Amend-ments, I have studied very carefully allthe various proposals submitted by otherSenators during the 88th Congress andin this current session of the 89th Con-gress. I have considered the testimonysubmitted to the subcommittee in pre-vious hearings, including those of thedistinguished experts who have testified.I have read the data collected and haveread the research done by the subcom-mittee's staff.

I believe that any measure to resolvethese very complex and perplexing prob-lems must satisfy at least four require-ments:

First. It must have the highest andmost authoritative legal sanction. Itmust be embodied in an amendment tothe Constitution.

Second. It must assure prompt actionwhen required to meet a national crisis.

Third. It must conform to the consti-tutional principle of separation of powers.

Fourth. It must provide safeguardsagainst usurpation of power.

I believe Senate Joint Resolution 1 bestmeets each of these requirements.

Senate Joint Resolution 1 deals witheach of the problems of vice-presidentialvacancy and presidential inability byconstitutional amendment rather thanby statute.

Mr. President, on this legal contro-versy, well-known legal authorities haveargued persuasively on both sides of thisquestion. At issue is the interpretationof the "necessary and proper" authorityof article I, section 8, clause 18-DoesCongress have the power to legislate withrespect to the question of vacancy andinability?

Recently there appears to have been astrong shift of opinion favoring a con-stitutional amendment over the statutoryapproach. Two past Attorneys Gen-eral-Herbert Brownell and WilliamRogers-and the present Attorney Gen-eral Nicholas Katzenbach, the AmericanBar Association, and many other Stateand local bar associations say a constitu-tional amendment is necessary.

The most persuasive argument for anamendment is that so many legal ques-tions have been raised about the author-ity of Congress to act on these subjects,that any statute on these subjects wouldbe open to criticism and challenge at themost critical time-when a Presidentdies in office; when a President had be-come disabled; and when a Presidentsought to recover his office.

We must not gamble with the con-stitutional legitimacy of our Nation'sexecutive branch. When a President orVice President of the United States as-sumes his office, the entire Nation and

the world must know without doubt thathe does so as a matter of right. Only aconstitutional amendment can supplythis necessary legitimacy.

With respect to the problem of vice-presidential vacancies, Senate Joint Res-olution 1 provides for the selection of anew Vice President when the formerVice President succeeds to the Presiden.cy within 30 days of his accession to of-fice; the selection is to be made by thePresident, upon confirmation by a ma-jority vote of both Houses of Congress.

I believe this is sound.The vice-presidential office, under our

system of government, is tied very closelywith the Presidency. The extent towhich the President takes the Vice Presi-dent into his confidence or shares withhim the deliberations leading to execu-tive decisions is largely determined bythe President.

Another important reason for allowingthe President to nominate a Vice Presi-dent is that the close relationship be-tween the President and Vice Presidentwill permit the person next in line to be-come familiar with the problems he willface should he be called on to assumethe Presidency.

Mr. SALTONSTALL. Mr. President,will the Senator yield?

Mr. FONG. I yield.Mr. SALTONSTALL. Is it not also

true that a Presidential nomination ofa Vice President to succeed him shouldpresumably be of one of the same partyas the President?

Mr. FONG. Yes. The President mustwork closely with the Vice President. Heis a very close confidant of the President.The Vice President would succeed thePresident, and he should be of the samepolitical party.

Mr. SALTONSTALL. And, therefore,the President should nominate him?

Mr. FONG. And, therefore, the Presi-dent should nominate him, and the Con-gress should have the right to confirmhis nomination by a majority vote. Sen-ate Joint Resolution 1 provides preciselythese points.

The bill proposes what I believe to bea practical solution to a practical prob-lem.

With respect to the problem of presi-dential disability, Senate Joint Resolu-tion 1 makes clear that when the Presi-dent is disabled, the Vice President be-comes Acting President for the period ofdisability. It provides that the Presidentmay himself declare his inability andthat if he does not, the declaration maybe made by the Vice President with writ-ten concurrence of a majority of theCabinet.

The determination of presidential in-ability by the Cabinet-along with theVice President-is sound. It is reason-able to assume that persons the Presidentselects as Cabinet officers are the Presi-dent's most devoted and loyal supporterswho would naturally wish his continu-ance as President.

The Vice President and the Cabinetare a close-working unit, having a dailyrelationship with the President. Theyare in the past position to assess thePresident's capacity to perform his du-ties and functions.

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February 19, 1965 CONGRESSIONAL RECORD - SENATE

In addition, a majority of the Cabinetusually are members of the President'spolitical party. They would be the last todeclare his inability to carry out theduties of his office if he were able todo so.

Senate Joint Resolution 1 provides thatthe President may declare his own fit-ness to resume his powers and duties, butif his ability is questioned, the Cabinetby majority vote and the Congress by atwo-thirds vote of both Houses resolvethe dispute.

These provisions of Senate Joint Reso-lution 1 not only achieve the goals I out-lined earlier, but they are also in con-sonance with the most valued principlesestablished by our Founding Fathers inthe Constitution.

They observe the principle of the sepa-ration of powers in our Government.They effectively maintain the delicatebalance of powers among the threebranches of our Government. Most im-portant of all, they insure that our Na-tion's sovereignty is preserved in thehands of the people through theirelected representatives in the NationalLegislature.

Several amendments to Senate JointResolution 1 have been proposed whichin substance place back into the handsof the Congress many of the problemswe have been discussing.

It is my considered judgment thatthese amendments will serve only toleave these critical questions unan-swered-and we would not have accom-plished what we intended to accomplishunder Senate Joint Resolution 1.

I believe that these amendmentsshould be voted down.

Mr. President, this is the first timesince 1956, when a full-scale congression-al study of the problems was conducted,that wide agreement has been reachedon these vastly complex constitutionalproblems.

Last September, a measure similar toSenate Joint Resolution 1 was passed bythe Senate by the overwhelming vote of65 to 0. It was sent to the House, butCongress adjourned before any furtheraction could be taken.

Last January, at the call of the Ameri-can Bar Association, a dozen of the Na-tion's leading legal authorities meetingin Washington came up with a consen-sus, which is essentially embodied in theprovisions of Senate Joint Resolution 1.This consensus was subsequently en-dorsed by the ABA house of delegates.

I understand that Senate Joint Resolu-tion 1 is being cosponsored by a byparti-san group of 77 Senators.

I am most delighted and pleased to co-sponsor this proposal with the very dis-tinguished and able junior Senator fromIndiana [Senator BAYH]. As one whohas worked closely with him on this jointresolution, I know that he has workedhard to draft and guide it through theSubcommittee on Constitutional Amend-ments and the full Judiciary Committee.

Mr. President, I highly commend Sen-ate Joint Resolution 1 to the Senate as ameritorious measure that should be en-acted promptly into law.

Mr. SALTONSTALL. Mr. President,Will the Senator from Hawaii yield?

The PRESIDING OFFICER (Mr.MONTOYA in the chair). Does the Sen-ator from Hawaii yield to the Senatorfrom Massachusetts?

Mr. FONG. I am glad to yield to theSenator from Massachusetts.

Mr. SALTONSTALL. What the Sen-ator has said in substance is that Con-gress should act now on this subject, thatit should act by constitutional amend-ment, and that the constitutionalamendment should be specific in itsterms rather than general, in order toleave future actions to future Congressesto supplement it.

Mr. FONG. The Senator is correct.We have been working on these problemsfor a long time, but have not been ableto come up with a substantively soundproposal. Now, we have such a proposalin Senate Joint Resolution 1, which isspecific in its terms, in order to leave nodoubt as to the devolution and orderlytransition of power, and the constitu-tional legitimacy of our Government. Ibelieve that the various amendmentswhich have been proposed to give theCongress statutory power to act on theseproblems will only lead us back to wherewe started.

The resolution of these problems aremuch too critical to leave for futurestatutory action, and, like the problemof presidential succession, be the subjectof political decision.

I believe that we should pass SenateJoint Resolution 1 now, because it isstatesmanlike and the very best possiblesolution to critical problems and willspecifically deal with the problem as wewish it to be dealt with.

Mr. SALTONSTALL. The Senatorwould deal with the problem by a con-stitutional amendment rather than bystatute.

Mr. FONG. The Senator is correct.That is the consensus of all the experts.

Mr. BAYH. Mr. President--The PRESIDING OFFICER (Mr.

HARRIS in the chair). The Senator fromIndiana.

Mr. BAYH. Mr. President, I compli-ment the Senator from Hawaii [Mr.FONG] on his well-defined statement, inwhich he covered all the principal points,and in which he stressed the need for theSenate to join behind the consensus ofthe experts, feeling that we have the bestproposal before the Senate now, and thatif we spend more time searching for thatwhich is perfect it will become a searchfor the impossible. We are solving thetwo key problems which have confrontedus-namely, vice-presidential vacanciesand the disability of a President; and ifwe solve these two problems, we can solvethe other problems at a later date.

I compliment the Senator and thankhim for the cooperation he has given thesubcommittee, as well as for the personalsacrifice he made to be in the Chamberthis afternoon to participate in thisdebate.

Mr. FONG. I thank the Senator fromIndiana. He has been working hard onthis measure. It is through his dedica-tion that the joint resolution is now be-fore the Senate. This has not been aneasy resolution to arrive at. The Senatorfrom Indiana and the other members of

the committee have worked very hard onit. They have given it deep thought. Wehave listened to the experts on the sub-ject, and this is the best possible solu-tion that we can suggest. I believe thatit is a completely workable and practicalsolution to the two key problems.

Mr. SCOTT. Mr. President, will theSenator from Hawaii yield?

Mr. FONG. I yield.Mr. SCOTT. Mr. President, I rise in

support of Senate Joint Resolution 1,but first, I commend the distinguishedSenator from Hawaii for the fine pres-entation he has made, and for thescholarship which is evident in his ex-position.

Let me say, for my part, that I shallsupport the proposed Dirksen substitutefor Senate Joint Resolution 1 because Ibelieve it to be simpler, wiser, and morefarsighted on a long-range basis toleave to Congress the discretion toprescribe, by statute, procedures for thetransfer of the President's powers andduties in the case of presidential in-ability.

It occurs to me that one illustration asto why Senate Joint 1 should leave thisdiscretion to Congress is that there is noprovision in Senate Joint Resolution 1,as reported to the Senate, that deals withthe inability of a Vice President to per-form his duties. If a Vice President diesor resigns, there is a provision for fillingthe vacancy. Let us suppose, however,that the Vice President suffers from aninability. It would be rather awkward,it seems to me, to overburden the Con-stitution with procedural details, betterand more flexibly prescribed by statute,in an effort to foresee and imagine everypossible eventuality and to meet everyconceivable contingency.

Yet, with the increased importance ofthe office of Vice President, the con-tingency of the Vice President's in-ability becomes a significant considera-tion and Congress could take care of itby law, as it would be permitted to dounder the broader language of the Dirk-sen amendment.

I am an original cosponsor of SenateJoint Resolution 1, but subsequent studyof the Judiciary Committee's hearingsand report, particularly the views ex-pressed therein by my distinguishedminority leader, has persuaded me toaccept the Dirksen amendment.

However, if the Dirksen amendmentshould not be adopted, I revert, then, tomy desire to see a workable proposaladopted, one which will be at least aswisely considered and prepared as SenateJoint Resolution 1, sponsored by the dis-tinguished Senator from Indiana [Mr.BAYH]. I would, then, as a cosponsor,support Senate Joint Resolution 1.

Mr. President, the tragedy which thisNation witnessed only 15 months agobrought most forcefully to our attentiononce again the striking absence in theConstitution of appropriate provisionfor continuity of presidential leader-ship. In this era of recurring crises athome and abroad, it is imperative thatat no time should there be any doubtin anyone's mind as to who is exercis-ing the powers and duties of the Presi-dency. That is the central issue we are

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dealing with today in Senate JointResolution 1.

This measure, of which I am honoredto be a cosponsor, provides a workablemeans of assuring continuity of presi-dential leadership. It recognizes thevery distinct nature of the two exigen-cies-death and inability-under whichthe Nation may lose the leadership ofits President, and it provides suitablesolutions for each of these peculiarlydifferent situations.

The uncertainty concerning the legiti-macy of our traditional method of pro-viding for presidential succession, whichis prompted by the existing vague con-stitutional language, would be removed.The addition of language providing forthe filling of vacancies in the office ofthe Vice President, which occur uponthe death, resignation, or removal of thePresident, would assure the Nation thatit will always have a Vice Presidentready and able to assume the office ofPresident or exercise the powers andduties of that office should the occasionarise.

Provision of continuity of presidentialleadership is an urgent need that mustbe met now. There is widespread sup-port for Senate Joint Resolution 1, andthe climate for early ratification of thismeasure by the States seems to befavorable. Let us therefore promptlyapprove it.

Before closing, Mr. President, let meheartily commend the junior Senatorfrom Indiana for his thorough study anddiligent efforts in drafting Senate JointResolution 1, and for bringing it to thefloor of the Senate. And I thank theSenator from Hawaii for giving me thisopportunity to express my views.

Mr. FONG. I thank the Senator forhis compliments. In answer to his ques-tions, let me say that the Dirksen amend-ment would leave us almost in the sameposition as that from which we started.Many questions will still remain unan-swered. If something should happen tothe Vice President, we would not havethe answer to that problem. It does notmilitate against Senate Joint Resolution1. At present, no one succeeds to theposition of Vice President if a Vice Presi-dent succeeds to the office of President.I believe that if we take one step at atime, we shall accomplish what we aretrying to accomplish. I believe that thepresent resolution is workable andpractical.

THE CONSTITUTIONAL RIGHTS OFALL AMERICANS

Mr. EASTLAND. Mr. President, in1954. soon after the decision in Brownagainst Topeka, I made the statementthat it was impossible to fulfill the im-plications of Brown against Topeka with-out destroying the constitutional rightsof all other American citizens and allother rights embodied in the Constitu-tion and guaranteed to the people.

Acting under the contemporary andcurrent insanity in the country relatingto so-called civil rights, various bureausare issuing edicts and decrees withoutany justification in law which deprivethe American people of their basic rights.

The Department of Defense under Sec-retary McNamara, together with certainunderlings, has probably been the mostzealous of these department heads inissuing decrees irrespective of the rightsof the American citizens. I wish to readto the Senate a letter which I have justreceived from Hon. Perry S. Ransom, Jr.,of Ocean Springs, Miss., to show to theSenate how far these Government bu-reaus have gone in surrendering basicrights to the current insanity of thecountry:

PERRY S. RANSOM, JR.,CONSULTING ENGINEER,

Ocean Springs, Miss., February 16, 1965.Senator JAMES O. EASTLAND,U.S. Senate,Washington, D.C.

DEAR SIR: Realizing full well the large vol-ume of mail that you receive daily from thepeople you represent and the futility of in-dividual correspondence, I nevertheless feelcompelled to write. Under our system ofdemocratic government we claim the rightof the individual citizen to protest when wefeel the Federal Government exceeds the lim-itations set forth by our Constitution.

For my explicit protest the following factsare herewith submitted:

The Jackson County Baptist Associationis currently conducting in numerous BaptistChurches a school of missions, whereby mis-sionaries come to our churches and relateto us the work that is being done for theLord on local and foreign fields. Throughthis mission emphasis our Christian peopleare made aware of just what our denomina-tion is doing to fulfill our Lord's great com-mission to "go and teach unto all nations."One of our scheduled missionary speakerswas to be a Sergeant Fuller (first name, serialnumber, and specific assignment unknownto me), who is currently stationed at KeeslerAFB in Biloxi, Miss. Our association hasnow been informed that said Sergeant Fullerhas received orders from his superiors in theAir Force that he is not to speak in ourchurch as the audience is segregated. Howcan the first amendment which guaranteesthe complete separation of church and statebe ignored by the military in prohibitingthis man from exercising his religious be-liefs by speaking to a local Baptist Churchgroup because there are no Negroes in theaudience? To the best of my knowledge theBaptist Negroes of Ocean Springs are com-pletely satisfied and happy in their ownchurch and have no desire to attend ourchurch. Can it be that the Government willattempt to compel the Negroes to integrateour churches, or can not the Great Societyleave a soul's salvation to the individual andto the Lord?

To reiterate, I, as an individual citizenstrongly protest the actions of the militaryat Keesler AFB to prevent any Americancitizen from exercising his religious beliefsjust because he happens to be in the AirForce.

Any actions that you may be able to maketo rectify this situation are endorsed andencouraged.

Yours very truly,PERRY S. RANSOM, Jr.,

One American Citizen.

In other words, a sergeant in the U.S.Air Force, who happens to be a religiousperson, was invited to address on areligious subject other Americans whobelonged to his religious sect. Becausethe meeting of this sect was not inte-grated, Sergeant Fuller of the U.S. AirForce was deprived of his right of freespeech. The religious association wasdeprived of their religious liberty. Free-dom of assembly was likewise violated.

Mr. President, I bring this to the at.tention of the Congress in order that theCongress may know just how far theinsanity of the country has progressedand the insanity of the bureaus whichare administering the laws under theConstitution of the United States.

Mr. President, this brings me to ask theSecretary of Defense one question: IfSergeant Fuller can be prohibited fromattending a Baptist church in OceanSprings, Miss., to make a few remarksthen can the Secretary of Defense pro.hibit Sergeant Fuller from attendingthat Baptist church in Ocean Springs?

I do not expect that Sergeant Fuller'stroubles or the troubles of the BaptistChurch at Ocean Springs, Miss., will at-tract the wrath of either the NationalCouncil of Churches or the Civil LibertiesUnion, but I do think the country mightbe interested in the subject matter ifthey are apprised of it.

PRESIDENTIAL AND VICE-PRESI-DENTIAL SUCCESSION-PRESI-DENTIAL DISABILITY

The Senate resumed the considerationof the joint resolution (S.J. Res. 1) pro-posing an amendment to the Constitutionof the United States relating to succes-sion to the Presidency and Vice-Presi-dency and to cases where the Presidentis unable to discharge the powers andduties of his office.

UNANIMOUS-CONSENT AGREEMENT

Mr. MANSFIELD. Mr. President, I amabout to propound a unanimous-consentrequest.

I ask unanimous consent that 1 hourfor debate be allowed on the Dirksensubstitute, to be equally divided betweenthe sponsors of the substitute and theSenator in charge of the joint resolutionon the floor of the Senate, the Senatorfrom Indiana [Mr. BAYH]; that an hourfor debate be allowed on each amend-ment, the time to be divided between thesponsors of the amendment and the Sen-ator from Indiana [Mr. BAYH] ; and that2 hours for debate be allowed on the jointresolution, to be equally divided.

The PRESIDING OFFICER. Is thereobjection? The Chair hears none, andit is so ordered.

The unanimous-consent agreement,subsequently reduced to writing, is asfollows:

UNANIMOUS-CONSENT AGREEMENT

Ordered, That the further consideration ofthe joint resolution (SJ. Res. 1), proposingan amendment to the Constitution of theUnited States relating to succession to thePresidency and Vice-Presidency and to caseswere the President is unable to discharge thepowers and duties of his office, debate on anyamendment, motion, or appeal, except a mo-tion to lay on the table, shall be limited to1 hour, to be equally divided and controlledby the mover of any such amendment ormotion and the Senator from Indiana (Mr.BAYH]: Provided, That in the event the Sen-ator from Indiana is in favor of any suchamendment or motion, the time in opposi-tion thereto shall be controlled by the mi-nority leader or some Senator designated byhim.

Ordered further, That on the question ofthe final passage of the said joint resolution,debate shall be limited to 2 hours, to be

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February 19, 1965 CONGRESSIONAL RECORD -SENATE

equally divided and controlled, respectively,by the majority and minority leaders: Pro-vided, That the said leaders, or either ofthem, may, from the time under their con-trol on the passage of the said joint resolu-tion, allot additional time to any Senatorduring the consideration of any amendment,motion, or appeal.

Mr. DIRKSEN. Mr. President, I yield5 minutes to the Senator from Kansas.

Mr. CARLSON. Mr. President, in myopinion, one of the most important piecesof legislation to be considered by thissession of Congress is the pending jointresolution regarding presidential succes-sion and presidential disability.

I commend the distinguished Senatorfrom Indiana [Mr. BAYHI and the mem-bers of the subcommittee of the Judi-ciary Committee and the Judiciary Com-mittee for having devoted so much timeto the hearings and the preparation ofthe joint resolution.

For the best part of two centuries, theCongress of the United States has notdealt effectively with the dual problemsof vice-presidential vacancies and pres-idential disabilities. Sixteen times, overa period in excess of 37 years, this Nationhas been without a Vice President. Pres-ident Garfield lay for 80 days unable toperform the powers and duties of hisoffice-President Wilson was disabled for16 months-President Eisenhower hadthree serious disabilities. Fortunately,the country was not confronted by aninternational crisis during any of theseperiods. We must not take for grantedthat history will continue to treat us sokindly.

Over the years, Congress has studiedthese dual problems at great length. Themain reasons for the lack of solution arethe inability to arrive at a consensus andthe unwillingness of individual Membersof Congress to amend their own per-sonal views in order to arrive at a work-able plan which could receive two-thirdsvote in each House of Congress. A greatdeal of effort has gone into the consen-sus embodied in Senate Joint Resolution1-the American Bar Association, theCommittee on Economic Development,legal scholars, constitutional lawyers andmembers of the executive and legislativebranches of the Government have workedtogether to develop a workable solution.

The main problem confronting Con-gress is writing a constitutional provi-sion which would assure no break in theexercise of the presidential power. Morethan that, no doubt should be permittedto arise as to who holds the office.

In addition to these two requirements,the procedure for transferring of powershould be fast, efficient, and easily under-stood.

The Senate Judiciary Committee hasspent days taking testimony of able andqualified individuals, discussing everyphase of this subject.

From the beginning of our Nation, wehave been without a Vice President inexcess of 20 percent of the time.

The preponderance of testimony hasdeclared that these problems must besolved by constitutional amendment.They are of sufficient importance to ourcountry to be embedded in the bedrocklaw of the land-the Constitution. Someof those supporting this contention have

been President Lyndon Johnson, VicePresident HUBERT HUMPHREY, formerPresident Dwight Eisenhower, AttorneyGeneral Nicholas Katzenbach, formerAttorney General Herbert Brownell, for-mer Attorney General William Rogers,the American Bar Association's Houseof Delegates by a unanimous vote, presi-dent of the American Bar Association,Lewis Powell, and immediate past presi-dent of the American Bar Association,Walter Craig.

Opinion is divided as to whether Con-gress has authority to deal with the prob-lem of disability. Any statute dealingwith this problem would be subjected toconstitutional challenge in the courts ata time of grave national crisis when ac-tion and certainty, not inaction anddoubt, were demanded by the nationalinterest.

Sections 3 and 4 of this joint resolu-tion deal with the very difficult problemof Presidential disability.

Section 3 enables the President to de-clare his own disability to perform thepowers and duties of his office and theVice President to assume these powersand duties as Acting President. Thisprovides for the eventuality that thePresident may be undergoing a seriousoperation or he himself feels seriously illand feels that the best interests of thecountry dictate that he voluntarilyshould turn over the powers and dutiesof the Presidency to the Vice Presidentfor the tenure of the President's disabil-ity.

Section 4 provides that, if the Presi-dent is unable to declare his own dis-ability, the Vice President and themajority of the Cabinet may do so, andthe Vice President would assume thepowers and duties as Acting Presidentfor the tenure of the President's disabil-ity. Thus, the country would be pro-tected under such circumstances as aPresidential heart attack, which findsthe Nation's Chief Executive under anoxygen tent when an effort is made toreturn missiles to Cuba.

The Vice President has the constitu-tional responsibility to act and the Cabi-net, appointed by the President, servesas a sufficient protection against a pow-er-hungry Vice President.

It is impossible for Congress to fore-see every eventuality that could incapac-itate the President or his successors.Congress can, however, and I believeshould, make every effort to remove theanxiety and apprehension that arises outof the uncertainties of the present law.

Mr. BAYH. Mr. President, will theSenator yield?

Mr. CARLSON. I yield.Mr. BAYH. I compliment the Senator

from Kansas on his statement, particu-larly the emphasis he placed on the factthat there has been much give and take,and that this is as close as we are likelyto come to being able to nail down a finaldetermination. The time for us to acthas come. If we continue to postponethis issue, we shall get further and fur-ther away from the horrible sequence ofevents which awakened public interestin this subject and it will recede furtherand further into the past.

The PRESIDING OFFICER. Thetime of the Senator has expired.

Mr. CARLSON. Mr. President, I statedat the beginning of my remarks that Ifelt the proposed legislation was one ofthe most important measures that wouldbe considered by this session of the Con-gress. I sincerely hope that action canbe taken on it at this session.

Mr. DIRKSEN. Mr. President, I yieldmyself 15 minutes.

The PRESIDING OFFICER. TheSenator from Illinois is recognized for 15minutes.

Mr. DIRKSEN. I am sensible of theurgency that is involved in connectionwith the proposal to amend the Consti-tution. Events in history such as whathappened on the 22d of November 1963,the assassination of President Garfield,who signed only a single extradition pa-per while he lay in a virtual coma for 90days, and the difficulty that the countryencountered at the time President Wood-row Wilson was stricken, have from timeto time reenergized this issue. I amquite aware of the desire to have some-thing done and to have it done as quick-ly as possible.

However, I am rather sensible of anold line in the Book of Exodus:

Thou shalt not follow a multitude to doevil.

The word "evil" might mean "error,"and it can be used in its broadest sense.I believe it has been pretty much of arule in our constitutional history that wedo not legislate in the Constitution. Wetry to keep the language simple. We tryto keep it at a high level, and we offersome latitude for statutory implementa-tion thereafter, depending upon theevents and circumstances that mightarise. For that reason I have submitteda substitute, which is extremely short-in fact, a single paragraph-which I be-lieve would encompass the problem thatconfronts us, would meet virtually everyexigency, and would leave in the handsof the Congress whatever legislationmight be necessary.

Before I go further, I commend thedistinguished Senator from Indiana [Mr.BAYHI. NO one has been quite so dili-gent in pursuing this subject. The samestatement can be made concerning thestaff. The Senator has worked hard.He is anxious to obtain action in thisbody; and he hopes to obtain action inthe other body so that the constitutionalproposal can then go to the country.

The substitute which I have offeredhas been skeletonized so that therewould be no ambiguities. There wouldbe no holes of any kind. If there were,they could always be remedied by con-gressional enactment. The substituteprovides merely that if the President isremoved from office, if he dies, or forother reason leaves the office, the officeof President shall devolve on the VicePresident.

That subject has been controversialever since Chester A. Arthur came intooffice, and, for that matter, even at thetime William Henry Harrison died inoffice and was succeeded by a Presidentwho at the time was not sure whetheror not he should accept the office or only

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undertake the duties and the responsi-bilities. My substitute would make itpretty clear-and I believe it is true alsoof Senate Joint Resolution 1-that in thecase of removal, death, or resignation,the office would devolve on the Vice Presi-dent. That is very simple, and thelanguage would nail it down.

But in the case of the inability of aPresident to discharge the powers andduties of the office, the powers and dutieswould devolve upon the Vice President.For example, the President might bealive. He might be incapacitated andunable to discharge his responsibilitiesas President. So the office would notdevolve upon the Vice President, butmerely the powers and duties.

The Vice President would be desig-nated as Acting President, and no more.He would maintain that status until theinability had been removed.

My amendment would further providethat-

The Congress may by law provide for othercases of removal, death, resignation, or in-ability, of either the President or VicePresident-

There might be a situation in whichboth the President and the Vice Presi-dent would be disabled. There might bea situation in which the Vice Presidentwould be disabled, but the Presidentwould be in possession of his facultiesand could carry on. In that event theCongress, under the proposed substitute,could enact a law to meet the situationwhich would arise under those circum-stances, and would also be able to declarewhat officer shall be President or VicePresident, in the case of inability, to actas President; and such officer would beor act as President accordingly.

That is rather broad language, but itis designed to be broad. I believe it isin keeping with the language of the Con-stitution itself.

The amendment contains one otherfurther provision:

The commencement and termination of anyinability shall be determined by such methodas Congress may by law provide.

The distinction between the substituteand Senate Joint Resolution 1 is thatsection 4 and section 5 of the joint reso-lution provide in a little detail, at least,what shall be done when there is an in-ability, if the President is disabled andis not in a position to declare his inabil-ity. Then it would be up to the VicePresident and a majority of the principalofficers of the executive departments orsuch other body as Congress may by lawprovide to transmit to the Congresswritten declarations that the Presidentwas disabled; and the Vice Presidentwould immediately assume the powersand duties of the office as acting Presi-dent.

Mr. President, there might not be aVice President. How could he then joinwith the principal officers of the execu-tive departments in transmitting a mes-sage to the Congress?

The language of the joint resolutionis as follows:

Whenever the Vice President and a ma-jority of the principal officers transmit thatmessage-

But if there is no Vice President, ob-viously we cannot fulfill the equationsthat are carried in Senate Joint Resolu-tion 1.

I believe that one could point out someother defects that would give me somecause for concern. For that reason Ibelieve that a measure of the kind pro-posed should be broadly sketched, andthat ample latitude should be left for theCongress to act.

It is said that we must "nail it down"and dispose of the matter forthwith.But if and when the proposal-and I amhopeful that a proposal of some kind willgo to the country-is disposed of by Con-gress, the committees can begin to workat once upon legislation to implementsuch a constitutional proposal. It couldbe ready, and all the hearings and detailscould be disposed of, as soon as the nec-essary number of States had ratified theamendment. Then it would not requiremore than a matter of days to enact thenecessary implementing legislation, sothat no time would be lost. We wouldalways preserve the necessary latitude.

For that reason, I think we ought toproceed on a broader base than we pres-ently contemplate. That must havebeen in the thinking of the President inconnection with his message to Congresson January 28. The President said:II. VACANCY In THE OFFICE OF THE VICE

PRESIDENTIndelible personal experience has impressed

upon me the indisputable logic and impera-tive necessity of assuring that the secondoffice of our system shall, like the first office,be at all times occupied by an incumbent whois able and who is ready to assume the powersand duties of the Chief Executive and Com-mander in Chief.

In our history, to this point, the office ofthe President has never devolved below thefirst clearly prescribed step of constitutionalsuccession. In moments of need, there hasalways been a Vice President; yet, VicePresidents are no less mortal than Presidents.Seven men have died in the office and onehas resigned, in addition to the eight wholeft the office vacant to succeed to the Presi-dency.

It is a question whether in the caseof succession it would be possible underSenate Joint Resolution 1 to fill thatoffice or not. So it would be somethingof a departure from what the Presidentsaid about the indispensable need ofhaving the second office as well as thefirst office always occupied. With thatgeneral proposal, I fully agree.

There are other matters that I mightpresent in connection with the amend-ment.

I shall submit at this point a generalstatement on the general subject, andalso some questions that have beenraised. I ask unanimous consent thatthey may be printed at this point in theRECORD, together with an article entitled"Bayh Amendment-Second Thoughtson Disability," written by Roscoe Drum-mond, and published in the WashingtonPost of recent date.

There being no objection, the state-ment, questions, and article were orderedto be printed in the RECORD, as follows:

STATEMENT BY SENATOR DIEKSEN

We have before us Senate Joint Resolu-tion 1. It is a proposed amendment to theConstitution to meet the problem of presi-

dential inability and of vacancies in the of.fice of Vice President.

I commend the distinguished chairman ofthe Subcommittee on Constitutional Amend.ments. He has worked throughout hisperiod of service on the committee on thisproblem. He has devoted a tremendousamount of time and energy to the issueand his work has helped to keep the issuebefore us.

It is a pressing domestic issue. It is nota new issue by any means. It has been be-fore the Congress numerous times. It hasbeen the subject of endless study by legisla-tors, constitutional authorities, and others.All have sought to provide an answer, but noproposed solution has been found that metthe problem. Nonetheless, a solution mustbe found. We must contrive language thatwill solve the problem.

There are those who contend that no con-stitutional amendment is required, that theentire matter can be disposed of by legisla.tion. I do not hold to this view althoughmany distinguished scholars support it.Rather I share with our distinguished sub-committee chairman, our subcommittee, andthe full committee, the view that a consti-tutional amendment is required.

The problem however Is this: How do wefashion the amendment? Do we follow theadvice of the Attorney General who says:

"Apart from that, the wisdom of loadingthe Constitution down by writing detailedprocedural and substantive provisions intoit has been questioned by many scholars andstatesmen. The framers of the Constitutionsaw the wisdom of using broad and expand-ing concepts and principles that could beadjusted to keep pace with current need."

And do we follow the advice of anothernoted constitutional scholar, Martin Taylor,chairman of the Committee on Constitu-tional Law, New York Bar Association, whohas been most active in this field and whourged the subcommittee only last year that:

"In the first plan, you have a basic funda-mental principle of constitutional law thatany amendment should be simple. I amsubstantially quoting from John Marshall.It should not give detail. You see theerror of that in a great many proposals be-cause, as time goes by, there might be greatdisagreement as to the practicability of ap-plying it under changed circumstances. Sothe fundamental [principle] that you givebroad enabling powers in the Constitution iswhat you should rely on, changing, if youplease, implementation with changing con-ditions."

That is the view I hold. Keep constitu-tional amendments simple. Leave the detailto implementing legislation which can bechanged to reflect changing circumstances.Leave the Constitution as the basic docu-ment from which all authority flows, but donot attempt to detail the application tospecific problems in the basic document it-self.

And that is the difficulty with SenateJoint Resolution 1 as reported by the fullcommittee with amendments. It was pointedout by the Attorney General when he wasbefore the subcommittee. He said he haddifficulty with the amendment. It was neces-sary for him to make a number of assump-tions in regards to the operation of theamendment. This should not be-theamendment should be clear and understand-able.

What were the problems that the AttorneyGeneral had with the amendment? This iswhat he said:

"First, I assume that in using the phrase'majority vote of both Houses of Congress'in section 2, and 'two-thirds vote of bothHouses' in section 5, what is meant is amajority and two-thirds vote, respectively,of those Members in each House present andvoting, a quorum being present. This in-terpretation would be consistent with long-

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standing precedent (see, e.g., Missouri Pac.Ry. Co. v. Kansas, 248 U.S. 276 (1919)).

"Second, I assume that the procedureestablished by section 5 for restoring thepresident to the powers and duties of hisoffice is applicable only to instances wherethe President has been declared disabledwithout his consent, as provided in section 4;and that, where the President has voluntarilydeclared himself unable to act, in accord-ance with the procedure established by sec-tion 3, he could restore himself immediatelyto the powers and duties of his office by de-claring in writing that his inability hasended. The subcommittee may wish to con-sider whether language to insure this inter-pretation should be added to section 3.

"Third, I assume that even where dis-ability was established originally pursuantto section 4, the President could resume thepowers and duties of his Office immediatelywith the concurrence of the Acting President,and would not be obliged to await the ex-piration of the 2-day period mentioned insection 5.

"Fourth, I assume that transmission to theCongress of the written declarations referredto in section 5 would, if Congress were notthen in session, operate to convene the Con-gress in special session so that the mattercould be immediately resolved. In this re-gard, section 5 might be construed as im-pliedly requiring the Acting President to con-vene a special session in order to raise anissue as to the President's inability pursuantto section 5.

"Further in this connection, I assume thatthe language used in section 5 to the effectthat Congress "will immediately decide" theissue means that if a decision were notreached by the Congress immediately, thepowers and duties of the Office would revertto the President. This construction is suf-ficiently doubtful, however, and the term"immediately" is sufficiently vague, that thesubcommittee may wish to consider addingcertainty by including more precise languagein section 5 or by taking action lookingtoward the making of appropriate provisionin the rules of the House and Senate.

"In my testimony during the hearings of1963, I expressed the view that the specificprocedures for determining the commence-ment and termination of the President's In-ability should not be written into the Con-stitution, but instead should be left to Con-gress so that the Constitution would not beencumbered by detail."

Did the action of the full committee inamending Senate Joint Resolution 1 correctthe deficiencies pointed out by the AttorneyGeneral? Let us consider what he said be-fore the full Judiciary Committee of theother body. He began observing that:

"As the committee well knows, the factualsituations with which House Joint Resolu-tion 1 is designed to deal are numerous andcomplex. Inevitably, therefore, some aspectsof the proposal will raise problems of am-biguity for some observers. In order to assistin resolving any such ambiguity, I propose toset forth the interpretations I would make inseveral difficult areas so that the com-mittee may consider whether clarification isneeded."

He then repeated the first observation thathe made before our subcommittee regardinghis assumption of the meaning of "majorityvote." He then repeated his second observa-tion regarding the procedure established bysection 5 of Senate Joint Resolution 1, andthen added:

"However, I note in this regard that theSenate Committee on the Judiciary has re-cently approved an amended version of Sen-ate Joint Resolution 1, the counterpart ofHouse Joint Resloution 1, under which thePresident may resume his powers and dutiesin this situation only by following a pro-cedure comparable to that established bysection 5. I would much prefer a provision

which would clearly enable the President toterminate immediately any period of ina-bility he has voluntarily declared."

He then repeated the third and fourthobservations he made to our committee butthen made this further observation:

"The Senate Committee on the Judiciaryhas revised Senate Joint Resolution 1 to pro-vide that all declarations, including the dec-larations by the President under sections 3and 5 and the declaration by the Vice Presi-dent under section 4, shall be transmitted tothe President of the Senate and Speaker ofthe House of Representatives. This change,the committee states, would provide a basison which congressional leaders could con-vene Congress if it were not then in session.However, the Constitution expressly author-izes only the President to convene Congressin special session (art. II, sec. 3, clause 2),and in view of that provision it might beargued that Congress cannot be convened inspecial session by its own officers. Accord-ingly, I would think it preferable to providethat the Acting President must convene aspecial session in order to raise an issueunder section 5 as to the President's inability.Although section 5 as it now stands could beconstrued in that way, the committee maywish to consider whether it would not beadvisable to add express language whichwould make that intention unmistakable.

"Fifth, I assume that the language usedin section 5-to the effect that Congress 'willimmediately decide' the issue-means thatif a decision were not reached by the Con-gress immediately, the powers and duties ofthe office would revert to the President. Thisconstruction is sufficiently doubtful how-ever, and the term 'immediately' is suffi-ciently vague, even though used also in arti-cle I, section 3, clause 2 of the Constitution,that the committee may wish to consideradding certainty by including more preciselanguage in section 5 or by taking actionlooking toward the making of approximateprovision in the rules of the House andSenate.

"The Senate Judiciary Committee, in ap-proving Senate Joint Resolution 1, haschanged the language 'immediately decidethe issue' to 'immediately proceed to decidethe issue.' This change seems to have theeffect of reversing the interpretation I haveindicated, the result being that under Sen-ate Joint Resolution 1, as approved by theSenate committee, the Acting Presidentwould continue to exercise the powers andduties of the Presidency while Congress con-sidered the matter and until one of theHouses of Congress brought the issue to avote and failed to support t sr he Acting Presi-dent by a two-thirds vote.

"I note that the committee has before itseveral proposals (H.J. Res. 3, H.J. Res. 119,and H.J. Res. 248) which would provide thatonce the issue of inability was referred toCongress, the President would be automati-cally restored to the powers and duties of hisOffice if Congress failed to act within 10days. These proposals would add a measureof protection for the President against in-terminable consideration of the issue byCongress. However, it would still be pos-sible under these proposals for the issue tobe decided by delay rather than by a vote onthe merits.

"In view of the difficulty of establishing inadvance exactly what period of considera-tion would be appropriate, the most effec-tive course might be to initiate promptlythe adoption of rules for the consideration ofquestions of inability that would insure areasonably prompt vote on the merits. Ido feel that, if the issue of national leader-ship is to be importantly affected by delay,then delay should favor the President.Particularly is this so if the President maynot, under section 3, unilaterally declarean immediate end to periods of inabilitywhich he has voluntarily declared."

But there is another course open to us.In the 88th Congress a simple and completeamendment was introduced by Senator Ke-fauver, then the chairman of the Consti-tutional Amendments Subcommittee, andcosponsored by Senator Keating. It wasSenate Joint Resolution 35.

In his appearance before the subcommit-tee on June 18, 1963, Attorney General Katz-enbach, then the Deputy Attorney Generalsuggested two minor modifications to theamendment. As modified the amendmentwould read:

"In the case of the removal of the Presi-dent from office or of his death or resigna-tion, the said office shall devolve on theVice President. In case of the inability ofthe President to discharge the powers andduties of the said office, the said powers andduties shall devolve on the Vice President asActing President until the inability be re-moved. The Congress may by law providefor the case of removal, death, resignation, orinability, both of the President and VicePresident, declaring what officer shall thenbe President, or in case of inability, act asPresident, and such officer shall be or act asPresident accordingly, until a President shallbe elected or, in case of inability, until theinability shall be earlier removed. The com-mencement and termination of any inabilityshall be determined by such method as Con-gress may by law provide."

The Attorney General endorsed theamendment as changed, saying:

"In addition, crucial and urgent new situ-ations may arise in the changing future-not covered by Senate Joint Resolution 28-where it may be of importance that Con-gress, with the President's approval, shouldbe able to act promptly without being re-quired to resort to still another amendmentto the Constitution. Senate Joint Resolu-tion 35 makes this possible; Senate JointResolution 28 does not.

"Since it is difficult to foresee all of thepossible circumstances in which the Presi-dential inability problem could arise, we areopposed to any constitutional amendmentwhich attempts to solve all these questionsby a series of complex procedures. We thinkthat the best solution to the basic problemsthat remain would be a simple constitu-tional amendment, such as Senate JointResolution 35, which treats the contingencyof inability differently from situations suchas death, removal, or resignation, whichstates that the Vice President in case ofPresidential inability succeeds only to thepowers and duties of the office as ActingPresident and not to the office itself, andwhich declares that the commencement andtermination of any inability may be deter-mined by such methods as Congress by lawshall provide. Such an amendment wouldsupply the flexibility which we think is in-dispensable and, at the same time, put torest what legal problems may exist underthe present provisions of the Constitutionas supplemented by practice and under-standing."

He reaffirmed his support for this amend-ment in 1964 by submitting his 1963 state-ment for the record, and, I might say histhree predecessors, Attorneys GeneralBrownell, Rogers, and KENNEDY, have alsoendorsed the amendment. The House ofDelegates of the American Bar Associationhas endorsed that amendment on two sep-arate occasions. The New York State BarAssociation reaffirmed its support of such anamendment this very week and it has beensupported by the Association of the Bar ofthe City of New York.

Let me point out that this amendment, asmodified, would permit precisely what Sen-ate Joint Resolution 1 attempts to do butit would reserve the detailed procedure inSenate Joint Resolution 1, which has provedthe principal difficulty, for legislation wheresuch details can more properly and easily bedefined.

3267

3268 CONGRESSIONAL RECORD- SENATEWhat is the practical difficulty with Sen-

ate Joint Resolution 1? It is the questionsleft unanswered. Must the President waittwo days to regain his authority when he hasvoluntarily relinquished it? If the Presi-dent is disabled and the Congress is not insession, who calls it into session? Underthe Constitution only the President can.What happens if a Vice President, who isserving as Acting President, became dis-abled himself?

Then, too, if the method of filling a va-cancy in the office of Vice President provesunworkable, would it not be preferable tochange the procedure by legislation ratherthan by another constitutional amendmentas Senate Joint Resolution 1 requires?

These are but a few of the questions thatcome to mind as I study this amendment.Consider the problems that the State legis-latures will have. Who will be present toanswer the questions of the members of thelegislature concerning the mechanics of allof these details? Wouldn't the simpleramendment which merely clarifies the pres-ent Constitution and leaves the details tobe legislated be far preferable and moreeasily understood?

I recite a number of questions that occurto me in connection with Senate Joint Res-olution 1:

1. Where in section 5 is there any languagelimiting it to those instances where the VicePresident and a majority of the heads of theexecutive department have declared thePresident unable to discharge the powers andduties of office?

2. If there is no such language, shouldthere be?

3. Must the President wait 2 days to see ifthe Vice President files a declaration that thePresident is still under a disability before re-covering his office even though he had volun-tarily relinquished it?

4. One of the purposes of Senate JointResolution 1 is to permit the President to de-clare his own inability with the assurancethat he can immediately regain it upon thetermination of inability. Would the compli-cated procedure contained in Senate JointResolution 1 for regaining the office make ithighly unlikely that a President would useit in most cases?

5. If a President were physically unable towrite or even sign his name, how could hemake a written declaration of his own in-ability?

6. Another purpose of Senate Joint Reso-lution 1 is to make certain that the offices ofPresident and Vice President are filled at alltimes. Testimony before the committee in-dicated the urgency of this. The nationalsecurity was involved, it was said. The Pres-ident in his message to Congress on January28, 1965, said:

"Indelible personal experience has im-pressed upon me the indisputable logic andimperative necessity of assuring that thesecond office of our system shall, like the firstoffice, be at all times occupied by an incum-bent who is able and who is ready to assumethe powers and duties of the Chief Executiveand Commander in Chief."

7. Does Senate Joint Resolution 1 makeprovision for having the offices filled at alltimes?

8. Suppose the President becomes disabledand the Vice President becomes Acting Pres-ident. Where is the provision for filling theoffice of Vice President?

9. What happens if the Vice President isunder a disability when the President be-comes disabled?

10. The Constitution says that only thePresident can call Congress into special ses-sion. What happens if Congress is not insession when the Vice President and a ma-jority of the heads of the executive depart-ments declare the President unable to dis-charge the powers and duties of his office?

How is Congress called into session to dis-charge its function under section 5?

11. If the method of filling a vacancy inthe office of Vice President as provided inSenate Joint Resolution 1, proves unworka-ble or undesirable, wouldn't it be preferableto be able to change it by legislation ratherthan by another constitutional amendmentas required by Senate Joint Resolution 1?

BAYH AMENDMENT--SECOND THOUGHTS ONDISABILITY

(By Roscoe Drummond)Some influential Senators are having sec-

ond thoughts on the wisdom of the Bayhamendment as a means of dealing with Presi-dential disability, not on the urgency of theaction. And there is no acute dissent onwhat should be done, only on how it shouldbe done.

The how is important. It could be cru-cially important.

The second thoughts, which are growingon the Hill, have to do with whether to writedetailed procedures into the Constitution totry to cover all contingencies or to proposea simple amendment that would authorizeCongress to deal with these matters.

Senator EVERETT M. DIRKSEN, of Illinois,the Democratic Senator EUGENE MCCARTHY,of Minnesota, have come out on the side of asimple enabling amendment. Other Sena-tors, both Republican and Democratic, haveindicated either their support or their open-mindedness.

There is a strong case to be made in favorof an authorizing amendment without at-tempting to write detailed law into the Con-stitution.

The role of the Constitution is to distributeauthority between the three branches of theGovernment and between the Federal Gov-ernment and the States. Its function is notto prescribe in detail how that authorityshall be used. Since Congress does not havethe power to deal with Presidential disabilityand Vice Presidential vacancies, the onlyneed is to give Congress that power.

Amendment to the Constitution shouldnot legislate. Good precedent: The 16thamendment, which gave Congress authorityto "lay and collect taxes on incomes." It didnot attempt to write a tax code. Bad prec-edent: The 18th amendment, which wrotethe prohibition law into the Constitutionand made repeal of the amendment the onlyredress when it did not work.

Can't we profit from the experience of the18th amendment, or must we repeat it allover again? It seems to me once is enough.

What if we write into an amendment allthe precise procedures for filling Vice Presi-dential vacancies, and coping with Presiden-tial disability? And then later we find con-tingencies nobody foresaw? Or what if somemajor provision proves inadequate? Thenthe amending process would have to startall over again.

These are practical questions. For ex-ample, one proposal to go into a possibleamendment would leave it wholly with thePresident to affirm that he has recoveredfrom a disability. But what if he insists up-on exercising his powers when he is unableto do so It has happened twice. PresidentGarfield lingered for 80 days between life anddeath, disabled but unwilling to accept hisdisability at any time. The same with Presi-dent Wilson for 17 months.

The voluntary arrangements establishedby Presidents Eisenhower, Kennedy, andJohnson with their Vice Presidents suggestthat this fearful hoarding of power mightnot be repeated. But we cannot be sure thatsome future President, after being disabled,would not seek to recapture his authoritybefore he was ready. One proposed amend-ment would leave this matter unresolved.

Congress cannot possibly foresee every con-tingency. That is why it seems to me that

Senator DIRKSEN and Senator MCCARTHY arewise in urging that detailed methods not beembedded into the Constitution and thatinstead, the necessary authority be grantedto Congress to act.

Mr. DIRKSEN. Mr. President, where,for instance, in section 5 is there anylanguage limiting that section to in-stances in which the Vice Presidentand a majority of the heads of the ex-ecutive departments have declared thePresident to be unable to discharge thepowers and duties of his office? If thereis no such language, should there be?

Must the President wait 2 days to seeif the Vice President files a declarationthat the President is still under a dis-ability before recovering his office, eventhough he had voluntarily relinquishedit?

One of the purposes of Senate JointResolution 1 is to permit the Presidentto declare his own inability, with the as-surance that he can immediately regainit upon the termination of such in-ability. Would the complicated pro-cedure contained in Senate Joint Reso-lution 1 for regaining the office make ithighly unlikely that a President woulduse it in most cases?

If a President were physically unableto write or even sign his name, howcould he make a written declaration ofhis own inability?

Another purpose of Senate Joint Reso-lution 1 is to make certain that the Of-fices of President and Vice President arefilled at all times. Testimony before thecommittee indicated the urgency of thismatter, and that is the reason why I re-cited the extended paragraph from thePresident's message to Congress.

Does Senate Joint Resolution 1 makeprovision for having the offices filled atall times?

The PRESIDING OFFICER (Mr. TY-DINGS in the chair). The 15 minutesyielded to himself by the Senator fromIllinois have expired.

Mr. DIRKSEN. I yield myself 2 addi-tional minutes.

Suppose the President becomes dis-abled and the Vice President becomesActing President. Where is the provi-sion for filling the office of Vice Presi-dent?

What happens if the Vice President isunder a disability when the Presidentbecomes disabled?

The Constitution provides that onlythe President may call Congress into spe-cial session. What happens if Congressis not in session when the Vice Presidentand a majority of the heads of the execu-tive departments declare the Presidentunable to discharge the powers and du-ties of his office? How would Congressbe called into session to discharge itsfunction under section 5?

If the method of filling a vacancy inthe office of Vice President, as providedin Senate Joint Resolution 1, proves un-workable or undesirable, would it not bepreferable to be able to change it bylegislation rather than by another con-stitutional amendment, as required bySenate Joint Resolution 1?

Mr. President, those are some of thequestions that arise. My interest is thatthere be no ambiguities and no rigidities

February 19, 1965

February 19, 1965 CONGRESSIONAL RECORD - SENATE

written into the Constitution that couldbe modified only by another constitu-tional amendment.

My preference is for flexibility and foradequate powers in the hands of Con-gress to deal with the problem. I amsensible of the fact that something mustbe done. I am glad that the distin-guished Senator from Indiana [Mr.BAYH] has carried the proposal to thispoint. For aught I know, my name maybe on the joint resolution. Certain it isthat I voted for the proposal in the pre-vious Congress, but always with the res-ervation that proposals that might bemade after the measure had left thecommittee could without prejudice besubmitted on the floor of the Senate. SoI exercise only the reservation that I keptunto myself both in the subcommitteeand in the full committee, because Iwanted to see some measure come to thefloor of the Senate upon which the Sen-ate could work its will and get it to theother body, and finally to the country.

The PRESIDING OFFICER. The ad-ditional time yielded to himself by theSenator from Illinois has expired.

Mr. DIRKSEN. Mr. President, I yield5 minutes to the distinguished Senatorfrom Nebraska.

Mr. HRUSKA. Mr. President, in thediscussion and consideration of the jointresolution, both in the present sessionof Congress and earlier, there were twoprinciples that I felt were most im-portant. One of those points was justemphasized by the Senator from Illi-nois, when he spoke in favor of his sub-stitute measure, namely, the inadvisabil-ity placing too many detailed proceduralprovisions in the Constitution.

This makes the Constitution very in-flexible. Flexibility is a principle whichhas been inherent in our Constitution.It has been followed quite. consistently.Exceptions to it are very few indeed.

I fear that with the great number ofprocedural provisions found in the Sen-ate joint resolution, as reported by thecommittee, we shall very likely, if we areever called upon to exercise it, run intosomething that will prove unworkable.For that reason, it would be better tocouch the proposed amendment in gen-eral terms and then provide that Con-gress shall be empowered to implement,by the legislative process, the amend-ment.

There are two ways of doing it. Onewould be the substitute resolution of theSenator from Illinois. The other isproposed in the amendment offered bythe Senator from Vermont on behalf ofthe Senator from Kentucky [Mr.COOPER].

The latter method would grant toCongress the power to prescribe anyother plan for dealing with disability,in the choice of a Vice President andthe filling of a vacancy in addition tothat detailed in Senate Joint Resolu-tion 1.

That is one of the principles. Theother principle is the matter of separa-tion of power. We have had testimony,throughout the past 6 or 8 years, thatit is desirable for an amendment deal-ing with this subject to respect the doc-trine of separation of powers. It has

been my view that that doctrine is vio-lated in the resolution as approved bythe Committee on the Judiciary, sincethe decision as to whether or not dis-ability has terminated is left for Con-gress.

When we ask another branch of theGovernment for the decision, the doc-trine of separation of powers is vio-lated. That was debated thoroughly.The Senator from Indiana has developeda fine body of testimony which is con-trary to that viewpoint.

It is, however, a viewpoint that wasat one time the judgment of our presentAttorney General, three of his predeces-sors, as nearly as I remember.

As' I have indicated in my individualviews of the committee report, it is myview we should abide by these two prin-ciples. The substitute amendment ofthe Senator from Illinois complies withthose two principles.

The PRESIDING OFFICER. Thetime of the Senator has expired.

Mr. BAYH. Mr. President, I yield 5minutes to the Senator from North Caro-lina, or as much time as he may careto use in the opposition to the Dirksenamendment.

The PRESIDING OFFICER. TheSenator from North Carolina is recog-nized for 5 minutes.

Mr. ERVIN. Mr. President, I rise inopposition to the Dirksen amendment.The Dirksen amendment totally ignoresone of the crucial questions which hasbrought this matter to the floor of theSenate. That is the fact that vacanciesoccur in the office of Vice President.

The Dirksen amendment makes no at-tempt to provide for the election of aVice President in case a Vice Presidentsucceeds to the office of President, or isremoved from office by impeachment.It ignores one of the things which hasmade this question so crucial. It ig-nores the necessity of having someonecontinue in the office of Vice President.

There is another fatal flaw in theDirksen amendment. That is the pro-vision that "the commencement andtermination of any inability shall be de-termined by such method as Congressmay by law provide."

I thank God that was not placed inthe Constitution when the Constitutionwas adopted. If it had been placed in theConstitution, we would have seen, in themost tragic period of our history, thetotal blackout of government of the peo-ple, by the people, and for the people inthis Nation. I refer to the tragic dayswhen a congressional group was tryingto take complete power in this Nation.The group was led by the then SenatorBen Wade, who was President pro tem-pore of the Senate and who wanted to bePresident. At that time there was noVice President. Lincoln had been as-sassinated and had been succeeded in theoffice of President by Vice President An-drew Johnson.

This group in Congress had intimi-dated the Supreme Court of the UnitedStates after that Court had handed downone or two courageous decisions. Thegroup scared the Supreme Court so thatit did not dare to decide cases as theyshould have been decided.

The group then decided that theywould impeach Andrew Johnson. Theonly thing that saved Andrew Johnsonfrom impeachment, and saves us frombehaving as a "banana republic" oftenbehaves on the seizure of power by am-bitious men, was the provision of theConstitution that required a two-thirdsvote before the President could be re-moved from office. Power-hungry men,headed by a man who aspired aboveeverything else to become President ofthe United States, and who was in linefor the Presidency if Andrew Johnsonhad been removed from office, were pre-vented from taking control by a provisionof our Constitution which required a two-thirds vote for impeachment, and then byonly one vote short of the two-thirdsmajority.

If the provision referred to had beenin the Constitution at that time-"Thecommencement and termination of anyinability shall be determined by suchmethod as Congress may by law pro-vide"--Andrew Johnson would have beenremoved from office. The group wouldhave set up a medical commission andhad President Johnson declared mentallydisabled. But they did not have thepower under the Constitution. The onlyway that they could have removed himwould have been by impeachment, andonly by impeachment by a two-thirdsmajority.

With this substitute amendment incor-porated in the Constitution, any timethat power-hungry men in Congress werewilling to go to the extremes that menwere willing to go to in those days, theycould take charge of the Presidency.Under the Dirksen proposal, they couldprovide that one of their favorite Mem-bers should succeed to the office of Presi-dent if there were no Vice President atthe time. That is a dangerous thing.

Mr. President, someone has very wiselysaid that a nation which does not re-member the history of the past is doomedto repeat its mistakes.

So this amendment should be rejectedfor at least two reasons. It does not dealadequately with the question of vacanciesin the Vice Presidency, and it would placedangerous power in the hands of Con-gress.

I am not disturbed about the doctrineof the separation of powers here, becausethe powers of government are not alwaysseparated. The Constitution provides,for example, that a President can be im-peached, and be removed from office bythe Senate. The Constitution providesa good many things that must be done bythe President and the Congress. TheConstitution provides that the Presidentmay make treaties, but they must beratified by the Senate. It provides thatthe President shall appoint heads of de-partments of the Federal Government,judges, ambassadors, and other officersof the United States; but the nomina-tions are subject to confirmation by theSenate, under the Constitution.

So there are many cases in which thepowers of government are jointly re-posed in both the executive and the leg-islative branch.

This amendment should be rejected forthose two reasons. The joint resolution

3269

CONGRESSIONAL RECORD - SENATE February 19, 1965presented by the committee contains fullprotection against any group of menthirsting for power taking over the officeof the Presidency, as could be done bythe Dirksen proposal, because it requiresa two-thirds vote. It requires action ofthe Vice President and members of theCabinet and action by Congress to re-move the President or Vice President.

I agree with my good friend from Ne-braska, in that I do not like to have toomany specific things written into theConstitution, but when we try to protectsomebody, we had better write specificsinto the Constitution if we do not wantto run the risk of converting the UnitedStates into what I would call a bananarepublic. We had better provide for atwo-thirds vote by the Congress, such asthe joint resolution reported by the com-mittee provides, to remove the Presidentfrom office, where he risks the charge ofdisability.

Mr. BAYH. Mr. President, will theSenator yield?

Mr. ERVIN. I yield.Mr. BAYH. I am glad the Senator

from North Carolina has pointed out thetime when our forefathers determinedthat there should be a commingling ofthe various branches which in most caseswe keep separate. I am also glad hepointed out the need for specifics undercertain circumstances.

It seems to me that a close analysis ofour Constitution discloses that it is awonderful, broad, general plan for awonderful society, but at the same timecertain basic specifics to protect certaininalienable rights are necessary, such asthe basic features provided in article 2,section 1, which has since been replacedby the 12th amendment. It specificallyprovides, in great detail, how electionsshall be conducted, because we do notwant Congress to take away from thepeople the right to decide for themselves.

As the Senator knows, the Constitutioncontains many specific qualifications-for example, to be President, and to beMembers of this great body.

I commend the Senator for what hehas said about the qualifications pro-vided.

Mr. ERVIN. As the Senator knows,in the Bill of Rights specifics are pro-vided for the protection of the individualagainst governmental tyranny. Thereare specifics protecting the individualagainst unreasonable searches and sei-zures of his papers, effects, and home.The Constitution contains specifics toprotect many rights.

That is the reason why the amendmentproposed by the committee was preparedin the form it is in. It was necessary toprotect a President against a power-hungry Congress, on the one hand, andalso to see to it that there was properprotection before such drastic stepsshould be taken.

Mr. SALTONSTALL. Mr. President,will the Senator from Indiana yield fora question?

Mr. BAYH. I am glad to yield to theSenator from Massachusetts, who hasbeen an ardent ally from an early date.

Mr. SALTONSTALL. This may be asmall, immaterial matter, but I wouldlike to clarify it in my mind and for theRECORD.

Turning to section 3 of the Senator'sproposed constitutional amendment, itreads:

Whenever the President transmits to thePresident of the Senate and the Speaker ofthe House of Representatives his writtendeclaration that he is unable to dischargethe powers and duties of his office, suchpowers and duties shall be discharged by theVice President as Acting President.

Under the Constitution, the Vice Presi-dent is President of the Senate, but if hebecame Acting President under thisamendment, he would no longer be Presi-dent of the Senate, but the Presidentpro tempore would become the Presidentof the Senate. Is that correct?

Mr. BAYH. That is correct.Mr. SALTONSTALL. The Vice Presi-

dent would become Acting President andthereby lose his title as President of theSenate. Is that correct?

Mr. BAYH. That is correct. I pointout for the RECORD, with respect to thewording of the amendment, that, asoriginally introduced and as reported bythe committee, it was suggested that themessage would be transmitted to Con-gress. We were determined to think ofall eventualities that could possibly hap-pen. We determined that such an even-tuality might happen when Congress wasnot in session. Therefore we changedthe wording so that it would read thatthe transmission should be to the Presi-dent of the Senate and the Speaker ofthe House of Representatives. By thatwording, the normal, legal procedure ofdelivery would take place in the mannerset out. Delivery to the President of theSenate and the Speaker of the Housewould be sufficient for the intention ofthe resolution.

Mr. SALTONSTALL. May I ask theSenator from Indiana, who has workedso hard in this matter, a question? Per-haps he has answered it in his speechwhen I was not present in the Chamber.If Congress were not in session, wouldthe fact that the transmission is to be tothe President of the Senate and theSpeaker of the House automatically callCongress into session?

Mr. BAYH. It is specifically providedin section 5, when it is necessary for Con-gress to convene, that it shall immedi-ately proceed to decide. We think thatis sufficient to enable the President ofthe Senate or the Speaker of the Houseto call a special session.

Mr. ERVIN. Mr. President, will theSenator from Indiana yield to me for thepurpose of clarifying the question askedby the Senator from Massachusetts?

Mr. BAYH. I yield.Mr. ERVIN. The amendment orig-

inally provided for the report to be madeto Congress. The question was raisedwhether a report could be made to Con-gress when Congress was in adjournment.So we adopted the language that the re-port should be made to the Presidentof the Senate and the Speaker of theHouse of Representatives to make cer-tain that the Vice President could takeover, immediately, in case of the Presi-dent's disability, without waiting forCongress to meet. But it is implied thatCongress shall meet, because section 5contains the language, "Congress shallimmediately proceed."

Mr. SALTONSTALL. Therefore, ei-ther the President of the Senate or theSpeaker of the House, or both, wouldcall Congress into session, and they wouldhave the power to do it?

Mr. ERVIN. Yes; that would be im-plied from the fact that Congress wouldmeet immediately.

Mr. SALTONSTALL. But if Congressadjourned sine die, there would not haveto be any provision in the sine die ad-journment to permit those officers to callit back into session.

Mr. ERVIN. No.Mr. SALTONSTALL. We sometimes

include such a provision.Mr. ERVIN. Yes.Mr. SALTONSTALL. It would be

automatic?Mr. ERVIN. Yes.Mr. President, my good friend from

Nebraska referred to the testimony ofthe present Attorney General in 1963. Iinvite the Senator's attention to thehearings, at pages 10 and 11. I readfrom the bottom of page 10:

In my testimony during the hearings of1963, I expressed the view that the specificprocedures for determining the commence-ment and termination of the President's in-ability should not be written into the Con-stitution, but instead should be left to Con-gress so that the Constitution would not beencumbered by detail. There is, however,overwhelming support for Senate Joint Res-olution 1, and widespread sentiment thatthese procedures should be written into theConstitution. The debate has already goneon much too long. Above all, we should beconcerned with substance, not form. It is tothe credit of Senate Joint Resolution 1 thatit provides for immediate self-implementingprocedures that are not dependent on furthercongressional or Presidential action. Inaddition, It has the advantage that theStates, when called upon to ratify the pro-posed amendment to the Constitution, willknow precisely what is intended. In view ofthese reasons supporting the method adoptedby Senate Joint Resolution 1, I see no rea-son to insist upon the preference I expressedin 1963 and assert no objection on thatground.

Mr. BAYH. Mr. President----The PRESIDING OFFICER (Mr.

TYDINGS in the chair). The Senatorfrom Indiana.

Mr. BAYH. I should like to suggestthat this might be the appropriate timeto ask unanimous consent to haveprinted in the RECORD a letter which Ireceived yesterday from the AttorneyGeneral, Nicholas Katzenbach, in an ef-fort to clarify and point out specificallythat his opinion does away with some ofthe rumors to the contrary.

There being no objection, the letterwas ordered to be printed in the RECORD,as follows:

OFFICE OF THE ATTORNEY GENERAL,

Washington, D.C., February 18, 1965.Hon. BIRCH BAYH,U.S. Senate, Washington, D.C.

. DEAR SENATOR BAYH: I understand thatrecent newspaper reports have raised somequestion as to whether I favor the solutionfor the problem of presidential inability em-bodied in Senate Joint Resolution 1, orwhether I prefer a constitutional amendmentwhich would empower Congress to enact ap-propriate legislation for determining wheninability commences and when it terminates.

Obviously, more than one acceptable solu-tion to the problem of presidential inability

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February 19, 1965 CONGRESSIONAL RECORD - SENATE

is possible. As the President said in hismessage of January 28, 1965, Senate JointResolution 1 represents a carefully con-sidered solution that would responsibly meetthe urgent need for action in this area. Inaddition, It represents a formidable con-sensus of considered opinion. I have, ac-cordingly, testified twice in recent weeks insupport of the solution embodied in SenateJoint Resolution 1 and House Joint Resolu-tion 1.

My views on the particular question hereinvolved were stated on January 29, 1965,before the Subcommittee on ConstitutionalAmendments of the Senate Judiciary Com-mittee, as follows:

"In my testimony during the hearings of1963, I expressed the view that the specificprocedures for determining the commence-ment and termination of the President's in-ability should not be written into the Con-stitution, but instead should be left to Con-gress so that the Constitution would not beencumbered by detail. There is, however,overwhelming support for Senate Joint Res-olution 1, and widespread sentiment thatthese procedures should be written into theConstitution. The debate has already goneon much too long. Above all, we should beconcerned with substance, not form. It isto the credit of Senate Joint Resolution 1that it provides for immediate, self-imple-menting procedures that are not dependenton further congressional or Presidential ac-tion. In addition, it has the advantage thatthe States, when called upon to ratify theproposed amendment to the Constitution,will know precisely what is intended. Inview of these reasons supporting the methodadopted by Senate Joint Resolution 1, I seeno reason to insist upon the preference Iexpressed in 1963 and assert no objection onthat ground."

I reaffirmed these views with the same ex-plicit language in my prepared statementdelivered on February 9, 1965, before theHouse Judiciary Committee. In view of theabove, there should be no question that Isupport Senate Joint Resolution 1.

Sincerely,NICHOLAS DEB. KATZENBACH,

Attorney General.

Mr. ERVIN. Mr. President, my opin-ion is that the present Attorney Generalcan now claim something which all of uswould like to be able to claim; namely,that we are wiser today than we wereyesterday.

Mr. BAYH. I wish to thank my goodfriend the Senator from North Carolina[Mr. ERVIN3, and the distinguished Sena-tor from Massachusetts [Mr. SALTON-STALL]. Both Senators have been ofgreat help in trying to forge the finalcontent of our arguments.

There are one or two additional pointswhich were raised by the minority leader,on which I should like to comment.

First, I should like to point out that inthe quotation which he read from thePresidential message, the President wasat that particular time addressing him-self to the need for a Vice President atall times, to elect a Vice President byCongress and Presidential appointment,a matter which is not even contained inthe Dirksen amendment.

As I said in my statement, the Presi-dent unequivocally, on all fours, endorsedboth disability and Vice-Presidential re-placement provisions in the joint resolu-tion.

Second, I refer to my earlier remarks,that under the provisions of section 3where the President voluntarily gives uphis powers, it is the understanding-rein-

forced by the testimony of the AttorneyGeneral-that he could assume it merelyby declaration, and would not have toinvoke the provisions of section 5 andbring in the Vice President, the Cabinet,and Congress.

Next, I should like to point out thatif we had a President unable to write hisname, the matter would not be consideredunder section 3, as the distinguishedminority leader has suggested, but ratherit would be considered under section 4,which is specifically provided for in theresolution in a case in which a Presidentof the United States might have a heartattack and be in an oxygen tent at atime when missiles might be moving toCuba or some other area of the world.The health and welfare of the countrywould demand immediate action; andthus the Vice President and a majorityof the Cabinet would act, when thePresident might be unable to do so.

The issue of calling a special sessionhas been well covered in previous col-loquy and I shall not repeat what hasbeen stated; but it is our understandingthat sufficient authority has been indi-cated in the report to adequately pointout that the intention of the amend-ment is to give this power to the Presi-dent of the Senate and the Speaker ofthe House.

I close by saying that it seems to mewe are making a general policy deter-mination which was articulated so wellby my colleague, the Senator from NorthCarolina [Mr. ERVIN], as to whether weare going to open Pandora's box to per-mit a blanket check provision to be givento Congress to provide laws in these vitalareas at some later date.

Let me reemphasize that if we giveCongress the power by law to decide later,we shall not be able to prevent a majorityof Congress from passing any laws itmay wish to pass, and then we immedi-ately negate the two-thirds protectionresiding in the impeachment provisionsof the Constitution since its inception,and which is also provded in Senate JointResolution 1, as so vividly pointed out bythe Senator from North Carolina [Mr.ERVIN].

There has been a trend of thinkingthat if we have a loosely drawn, non-specific constitutional amendment, thelegislative bodies might be more inclinedto adopt it. I am satisfied that severalMembers of this body who have hadlegislative experience at the State levelcan speak with more authority than I.But my 8 years in the Indiana GeneralAssembly have led me to believe that thiswas a false assumption. With this inmind, we sent copies of Joint Resolution35, which was merely an enabling actgiving Congress power to act, and JointResolution 139 of the previous year,which is almost identical with SenateJoint Resolution 1, to the president ofthe senate and the speaker of the houseof all the States.

The preponderance of evidence-I be-lieve we received only three letters tothe contrary-was that State legisla-tive bodies would prefer to enact the rati-fication resolution, that State legislaturesshould deal with a specific proposal andnot give Congress a blank check to take

away the safeguards to which the Sena-tor from North Carolina [Mr. ERVIN] hasso adequately directed our attention.

Mr. SALTONSTALL. Mr. President,will the Senator from Indiana yield?

Mr. BAYH. I yield.Mr. SALTONSTALL. Is it not true,

following up what the Senator has said,that in this instance this subject hadbeen discussed for many years, and thatif we send it back in a general form andsay that Congress will do something ifthe amendment should be adopted, theaverage legislator, the average citizen willsay, "Pshaw. Congress is putting thething off further, and this is not definite."

Mr. BAYH. The Senator is absolutelycorrect. The effect would be very muchthe same, I am sure, as that contained inthe 20th amendment, which provides forthat eventuality. Thirty-two years agothat provision was specified, and Con-gress has done nothing since that time.If an enabling constitutional amend-ment were passed by the two Houses ofCongress and sent to and subsequentlyratified by the House, we still would haveto enact a law, which we have not donein 170 years.

Now that we are close to solving theproblem, why put it off to some day inthe future when interest may havewaned, and Congress may be dilatoryabout it, as it has been in the past?

Mr. SALTONSTALL. That is an ap-pealing argument. That is the funda-mental argument with the average mem-ber of a State legislature.

Mr. BAYH. I thank the Senator fromMassachusetts for pointing this out.

Mr. President, one last point and thenI shall have concluded my arguments,which have ably reenforced by manySenators. I believe that the most im-portant ingredient in a constitutionalamendment such as this is general pub-lic acceptance of a formula which weprovide. As I pointed out in my earlierremarks, the horrible tragedy in Dallas,Tex., would have been much worse-ifthat is possible to imagine-if we had nothad a definite procedure which was ac-cepted by the people of America so thatLyndon Johnson could assume the officeof President, succeeding to the officefrom that of Vice President.

It is my judgment that a constitutionalamendment-passed by a two-thirds voteof the Senate, passed by a two-thirdsvote of the House of Representatives, andsubsequently ratified by three-fourths ofthe State legislatures, with all of the at-tendant publicity-would be much betteraccepted by the people of America, andthey would be more aware of its provi-sions, than a law which passed bothHouses of Congress by majority vote.

The PRESIDING OFFICER. Whoyields time?

Mr. HRUSKA. Mr. President---Mr. BAYH. Mr. President, I yield back

the remainder of my time.Mr. HRUSKA. Mr. President, if there

is any time left on the substitute amend-ment, I yield back the remainder of thattime.

The PRESIDING OFFICER. Alltime is yielded back.

Mr. HRUSKA. Mr. President, I sug-gest the absence of a quorum.

3271

3272 CONGRESSIONAL RECORD - SENATEThe PRESIDING OFFICER. The

clerk will call the roll.The legislative clerk proceeded to call

the roll.Mr. HRUSKA. Mr. President, I ask

unanimous consent that the order for thequorum call be rescinded.

The PRESIDING OFFICER. Withoutobjection, it is so ordered.

Mr. HRUSKA. I ask for the yeas andnays on the Dirksen substitute.

The yeas and nays were ordered.The PRESIDING OFFICER. The

question is on agreeing to the amend-ment offered by the Senator from Illinois[Mr. DIRKSEN]. The yeas and nays havebeen ordered and the clerk will call theroll.

The legislative clerk called the roll.Mr. LONG of Louisiana. I announce

that the Senator from New Mexico [Mr.ANDERSON], the Senator from Nevada[Mr. BIBLE], the Senator from NorthDakota [Mr. BURDICK], the Senator fromPennsylvania [Mr. CLARK], the Senatorfrom Tennessee [Mr. GORE], the Senatorfrom Alaska [Mr. GRUENING], the Sena-tor from Oregon [Mr. MORSE], the Sen-ator from Utah [Mr. Moss], the Senatorfrom Oregon [Mrs. NEUBERGER], the Sen-ator from Florida [Mr. SMATHERS], theSenator from New Jersey [Mr. WIL-LIAMS], are absent on official business.

I also announce that the Senator fromGeorgia [Mr. RUSSELL] is absent becauseof illness.

I further announce that the Senatorfrom South Carolina [Mr. JOHNSTON],the Senator from North Carolina [Mr.JORDAN], the Senator from Massachu-setts [Mr. KENNEDY], the senior Senatorfrom Minnesota [Mr. MCCARTHY], thejunior Senator from Minnesota [Mr.MONDALE], the Senator from Maine [Mr.MUsKIE], the Senator from Wisconsin[Mr. NELSON], the Senator from Con-necticut [Mr. RIBICOFF], and the Sena-tor from Missouri [Mr. SYMINGTON] areabsent on official business.

I further announce that, if present andvoting, the Senator from New Mexico[Mr. ANDERSON], the Senator from Ne-vada [Mr. BIBLE], the Senator fromPennsylvania [Mr. CLARK], the Senatorfrom Tennessee [Mr. GORE], the Senatorfrom Maine [Mr. MUSKIE], the Senatorfrom Wisconsin [Mr. NELSON], the Sena-tor from Oregon [Mrs. NEUBERGER], andthe Senator from Florida [Mr. SMATH-ERS] would each vote "nay."

On this vote, the Senator from Massa-chusetts [Mr. KENNEDY] is paired withthe Senator from Colorado [Mr. DOMI-NICK]. If present and voting, the Sena-tor from Massachusetts would vote"nay," and the Senator from Coloradowould vote "yea."

On this vote, the senior Senator fromMinnesota [Mr. MCCARTHY] is pairedwith the junior Senator from Minnesota[Mr. MONDALE]. If present and voting,the senior Senator from Minnesota wouldvote "yea," and the junior Senator fromMinnesota would vote "nay."

In this vote, the Senator from Iowa[Mr. MILLER] is paired with the Senatorfrom Oregon [Mr. MORSE]. If presentand voting, the Senator from Iowa wouldvote "yea," and the Senator from Oregonwould vote "nay."

On this vote, the Senator from Ken-tucky [Mr. MORTON] is paired with theSenator from Utah [Mr. Moss]. Ifpresent and voting, the Senator fromKentucky would vote "yea," and theSenator from Utah would vote "nay."

On this vote, the Senator from Idaho[Mr. JORDAN] is paired with the Senatorfrom Connecticut [Mr. RIBICOFF]. Ifpresent and voting, the Senator fromIdaho would vote "yea," and the Senatorfrom Connecticut would vote "nay."

On this vote, the Senator from Cali-fornia [Mr. KUCHEL] is paired with theSenator from Missouri [Mr. SYMING-TON]. If present and voting, the Sena-tor from California would vote "yea," andthe Senator from Missouri would vote"nay."

On this vote, the Senator from NorthDakota [Mr. BURDICK] is paired with theSenator from Alaska [Mr. GRUENING].If present and voting, the Senator fromNorth Dakota would vote "yea," and theSenator from Alaska would vote "nay."

Mr. DIRKSEN. I announce that theSenators from Kentucky [Mr. COOPERand Mr. MORTON], the Senator fromNew York [Mr. JAvrrs], the Senator fromIdaho [Mr. JORDAN] and the Senatorfrom Iowa [Mr. MILLER] are necessarilyabsent.

The Senator from California [Mr.KUCHEL] is absent on official business.

The Senator from Colorado [Mr.DOMINICK] is detained on official busi-ness.

On this vote, the Senator from Colo-rado [Mr. DOMINICK] is paired with theSenator from Massachusetts [Mr. KEN-NEDY]. If present and voting, the Sen-ator from Colorado would vote "yea" andthe Senator from Massachusetts wouldvote "nay."

On this vote, the Senator from Idaho[Mr. JORDAN] is paired with the Senatorfrom Connecticut [Mr. RIBICOFF]. Ifpresent and voting, the Senator fromIdaho would vote "yea" and the Senatorfrom Connecticut would vote "nay."

On this vote, the Senator from Cali-fornia [Mr. KUCHEL] is paired with theSenator from Missouri [Mr. SYMINGTON].If present and voting, the Senator fromCalifornia would vote "yea" and theSenator from Missouri would vote "nay."

On this vote, the Senator from Iowa[Mr. MILLER] is paired with the Senatorfrom Oregon [Mr. MORSE]. If presentand voting, the Senator from Iowa wouldvote "yea" and the Senator from Oregonwould vote "nay."

On this vote, the Senator from Ken-tucky [Mr. MORTON] is paired with theSenator from Utah [Mr. Moss]. Ifpresent and voting, the Senator fromKentucky would vote "yea" and the Sen-ator from Utah would vote "nay."

If present and noting, the Senatorfrom New York [Mr. JAVITS] would vote"nay."

The result was announced-yeas 12,nays 60, as follows:

[No. 23 Leg.]YEAS-12

BennettBoggsCaseCotton

DirksenHickenlooperProutyScott

SmithThurmondTowerWilliams, Del.

AikenAllottBartlettBassBayhBrewsterByrd, Va.Byrd, W. VaCannonCarlsonChurchCurtisDoddDouglasEastlandEllenderErvinFanninFongFulbright

AndersonBibleBurdickClarkCooperDominickGoreGrueningJavitsJohnston

So Mr.jected.

t.

Jordan, N.C. MuskleJordan, Idaho NelsonKennedy, Mass. NeubergerKuchel RibicoffMcCarthy RussellMiller SmathersMondale SymingtonMorse Williams, N.J.MortonMoss

DIRKSEN'S amendment was re-

AMENDMENT NO. 29

Mr. THURMOND. Mr. President, Icall up my amendment No. 29 and askunanimous consent that its reading bedispensed with, but that it be printed atthis point in my remarks.

The PRESIDING OFFICER. Withoutobjection, it is so ordered. AmendmentNo. 29 is as follows:

On page 2, beginning with line 10, deleteall down through and including line 16, andinsert in lieu thereof the following, to wit:

"SECTION 1. If the office of President be-comes vacant because of the death, removalfrom office, or resignation of the President,the Vice President shall become President.If the office of Vice President becomes vacantbecause of the death, removal from office,or resignation of the Vice President or thedeath of a Vice-President-elect before thetime fixed for the beginning of his term, orbecause the Vice President or a Vice-Presi-dent-elect has assumed the office of Prest-dent by reason of the death, removal fromoffice, or resignation of the President or thedeath of a President-elect before the timefixed for the beginning of his term, theelectors who were chosen to cast ballots inthe most recent election of President andVice President shall meet in their respectiveStates on the Monday of the third weekbeginning after the date on which the officeof Vice President became vacant, and shallthen vote by ballot for a new Vice President.They shall name in their ballots the personso voted for as Vice President, and shallmake a list of all persons voted for as VisePresident and the number of votes for each,which list they shall sign and certify, andtransmit to the President pro tempore of theSenate. The votes so cast shall then becounted, and a new Vice President shall beselected, in the manner prescribed by thetwelfth article of amendment to this Con-stitution for the selection of a VicePresident.

"SEc. 2. Electors for President and VicePresident chosen in any State under thisConstitution shall serve as such until thedate on which electors are chosen for thenext regular election of a President and aVice President. Vacancies which may occurbefore that date in the membership of elec-tors of any State because of death, removalfrom office, or resignation shall be filled bythe selection of successors in the next regu-lar election of that State in which members

February 19, 1965NAYS-60

Harris MetcalfHart MonroneyHartke MontoyaHayden MundtHill MurphyHolland PastoreHruska PearsonInouye PellJackson ProxmireKennedy, N.Y. RandolphLausche RobertsonLong, Mo. SaltonstallLong, La. SimpsonMagnuson SparkmanMansfelsd StennisMcClellan TalmadgeMcGee TydingsMcGovern YarboroughMcIntyre Young, N. Dak.McNamara Young, Ohio

NOT VOTING-28

February 19, 1965 CONGRESSIONAL RECORD- SENATE

of the House of Representatives are chosen.In the event that a vacancy in the mem-bership of electors of any State exists anda vote for a new Vice President occurs at atime prior to the next regular election ofthat State in which members of the Houseof Representatives are chosen, the remain-ing electors of such State shall choose asuccessor to serve until such next regularelection.

"SEC. 3. If the Congress is not in sessionat a time at which a new Vice President isto be selected under this article, the persondischarging the powers and duties of Pres-ident shall convene the Senate and the Houseof Representatives in joint session for thatpurpose.

"SEC. 4. A Vice President chosen underthis article shall serve as such until the endof the term for which the Vice President orVice-President-elect whom he succeeds waselected."

Renumber succeeding sections accordingly.

Mr. THURMOND. Mr. President, theamendment proposes to delete sections 1and 2 of Senate Joint Resolution 1. Thesubstance of section 1 of Senate JointResolution 1 which clearly states that theVice President shall become Presidentupon the death, resignation, or removalfrom office of the President is containedin the amendment which I propose. Inaddition, the present sections 3, 4, and 5of Senate Joint Resolution 1, dealingwith presidential inability, would remainunchanged if my amendment wereadopted.

This amendment, Mr. President, con-tains the substance of Senate Joint Reso-lution 25, which I introduced in the Sen-ate on January 15, 1965. There is onechange, which I shall mention later.This amendment was referred to the Ju-diciary Committee of the Senate andsubsequently to the ConstitutionalAmendments Subcommittee, and it wasavailable for consideration by that sub-committee during the hearings and ex-ecutive sessions held in connection withthis overall problem. I wrote a letter tothe chairman of the ConstitutionalAmendments Subcommittee, the juniorSenator from Indiana [Mr. BAYH], rec-ommending the electoral college ap-proach for the selection of a new VicePresident in the case of a vacancy in thatoffice. This letter stated my general rea-sons for preferring the electoral collegeapproach to the method contained inSenate Joint Resolution 1, which calls forthe nomination of a new Vice Presidentby the President and confirmation by amajority vote of both Houses of Con-gress.

At the outset, I would like to outlineexactly what my amendment calls for.A vacancy in the office of Vice Presidentmay occur for any of the following rea-sons: death, removal from office, resig-nation, death of the Vice-President-electbefore his term begins, or his assumptionof the office of the President or President-elect for any reason. All of these con-tingencies are provided for in my amend-ment.

If for any of these reasons, a vacancyoccurs in the office of the Vice President,the electors who were chosen in the mostrecent presidential election would meetin their respective States on the Mondayof the third week beginning after thedate on which the vacancy occurred.The electors would cast their ballot for

a new Vice President, certify the resultof their election, and transmit this cer-tified list to the President pro temporeof the Senate. The President of theSenate then would proceed in accordancewith the provisions of the 12th amend-ment to the Constitution to count theballots and certify the election of a newVice President. In the event that nocandidate received a majority of all theelectoral votes, then the Senate wouldchoose a new Vice President in accordwith the provisions of the 12th amend-ment to the Constitution.

Section 2 of this amendment providesfor filling any vacancy among the elec-tors of any State by election at the nextregular election of that State in whichMembers of the House of Representativesare chosen. In the event that a vacancyexists among the electors of any Statewhen it is necessary to elect a new VicePresident, the vacancy would be filledby the remaining electors. This is toinsure that the full vote to which anyState is entitled would be cast. Thislatter provision is the only modificationof Senate Joint Resolution 25 as I origi-nally introduced it.

Section 3 of my amendment providesfor the calling of a special joint sessionof Congress by the person dischargingthe powers and duties of the Presidentin the event that Congress is not in ses-sion at the time a new Vice President isto be selected. Section 4 merely providesthat the Vice President elected under theprocedure provided for in that amend-ment would serve only during the termfor which the Vice President or Vice-President-elect whom he succeeds waselected.

Mr. President, I believe that themethod of selecting a new Vice Presidentprovided for in my amendment is pre-ferable to that provided in Senate JointResolution 1, for several reasons. First,it has the advantage of retaining thegeneral election process which we allrecognize as so necessary in a republicanform of government. Second, the popu-larly elected body of the people, the elec-toral college, is the proper body to fillvacancies in the office of Vice President.Third, election by the electoral collegewould generate a greater degree of publicconfidence and a broader base of supportfor the individual chosen.

The only objections to this proposalwhich have come to my attention arethat the electoral college is too cumber-some and time consuming to act quicklyin emergencies, and that it is notequipped to conduct hearings on thequalifications of a candidate for theposition. I do not believe that either ofthese objections has enough merit tooutweigh the obvious advantages of theelectoral college plan as compared withthe presidential nomination plan. Theelection of a new Vice President would,under the terms of my amendment, takeplace on the Monday of the third weekbeginning after the vacancy occurred inthe office of the Vice President. Thiswould mean that the electoral collegewould have acted within a month afterthe vacancy occurred. This would pro-vide a sufficient amount of time for allserious candidates for the office to maketheir positions clear, and yet it would be

timely enough to avoid any crippling gapdue to a longlasting vacancy in the officeof Vice President. As to the contentionthat the electoral college is not equippedto hold hearings, I do not believe thatformal hearings are necessary to theelection of a new Vice President. Afterall, the views of any serious candidatewill be well known, and everyone willhave the opportunity of expressing theiropinion and preferences.

As a practical matter, the individualchosen by either the method containedin my amendment, or the method con-tained in Senate Joint Resolution 1,would probably be the same. Undoubt-edly, the President will make known hiswishes as to the choice of a new VicePresident. The electors in the individualStates, having elected the President,would presumably elect his choice fora new Vice President. Therefore, I donot feel that the objections voiced to theelectoral college method are sufficient toovercome its distinct advantages.

Section 2 of Senate Joint Resolution 1raises some very pertinent questionswhich are not answered in the Judi-ciary Committee's report; for example,the amendment states:

The President shall nominate a Vice Presi-dent who is to take office upon confirmationby a majority vote of both Houses of Con-gress.

Under this wording, it is not clearwhether the Senate and House of Repre-sentatives are to meet in joint session andconfirm the nominee of the President bya majority of the 535 of both Housestaken together, or whether they are tomeet independently and have a majorityof each House voting separately. Thisis a detail which easily could, and should,be clarified. However, no clarifyinglanguage on this point is contained inthe committee's report.

One reason advanced in support of thepresidential nomination procedure con-tained in Senate Joint Resolution 1 isthat, in practice, it conforms with whatoccurs in the nominating conventions ofthe two major parties at the presenttime. It is true that the presidentialnominee of both parties is given greatlatitude in choosing his vice-presidentialrunning mate in the convention. How-ever, I feel that there is a great deal ofdifference between choosing the manwho is to run on the same ticket withthe presidential candidate, subject to thevote of the people, and naming the manwho would almost automatically becomethe new Vice President. This distinctionmay seem minor to some; however, to mymind, the proposal contained in myamendment is preferable.

Mr. STENNIS. Mr. President, will theSenator yield me 2 minutes?

Mr. DIRKSEN. I yield 2 minutes tothe Senator from Mississippi.

Mr. STENNIS. Mr. President, theSenate is now exercising one of its great-est responsibilities, that of consideringa proposal to amend the Constitution ofthis great Nation. And the specific pro-posal now before us. Senate Joint Reso-lution 1, is clearly one of the most im-portant matters before the Congress. Itis my privilege to cosponsor this resolu-tion and to speak in its support today.

3273

CONGRESSIONAL RECORD - SENATE February 19, 1965As all Members of the Senate know,

Senate Joint Resolution 1 has three basicpurposes: First, to provide that upon theoccurrence of a vacancy in the office ofthe Presidency, the Vice President shallbecome President; second, to provide forthe selection of a new Vice President inevent of a vacancy in that office; and,third, to provide a method of determin-ing when the Vice President shall serveas Acting President in the event of theinability of the President, and also toprovide a method of determining whenthe President is able to resume the dutiesof his office. While there may be dis-agreement as to the specific proposals toresolve these issues, I believe that theprovisions of Senate Joint Resolution 1represents the best possible solution.

I do not believe it necessary to discusseach of these provisions in detail, be-cause the Senator from Indiana [Mr.BAYH] has done an outstanding job ofpresenting to the Senate both the needfor this resolution and an explanation ofits terms. He is to be highly commendedfor his diligent study of this problem andfor his perseverance in mobilizing a na-tional sentiment for immediate action.

Although the Senator from Indianahas performed such an excellent servicein presenting this issue to the Senate, Ido want to comment briefly on the ma-jor provisions of Senate Joint Resolu-tion 1. The question has been raised, forexample, that this proposal is too de-tailed, and that it would be best to leavethe determination of specific provisionsup to the Congress. It is the consensusof legal authorities, however, that Con-gress does not have the constitutionalauthority to provide by legislation thatthe Vice President shall actually becomePresident upon the occurrence of a va-cancy in that office. Section 1 of SenateJoint Resolution 1 resolves this issue bysimply providing that the Vice Presidentshall become President in such an event.

Surely no one can question the factthat a constitutional amendment is nec-essary in order to provide for the selec-tion of a new Vice President wheneverthere is a vacancy in that office. Con-gress would clearly be assuming author-ity not granted by the Constitution if itwere to attempt to provide for such acontingency by legislation. And yet, whocan question the necessity of insuringthat this Nation will never be withoutboth a President and a Vice President?

It has also been argued that sections4 and 5 of Senate Joint Resolution 1treat in too great detail the method ofdetermining the factual questions of boththe inability of the President and theremoval of that inability. I submit, how-ever, that a close consideration of thesesections reveals that it is imperative thatthe method of resolving these issues bespelled out in the Constitution in themanner prescribed by Senate Joint Res-olution 1. To provide any broader stand-ards, such as simply giving Congress theauthority to determine these questionsby statute, would encroach on the au-thority of the executive branch andwould constitute a violation of the sepa-ration of powers doctrine. In my opin-ion, sections 4 and 5 handle these prob-lems effectively without writing into the

Constitution such great detail as to de-stroy the necessary flexibility.

Mr. President, in this modern age itis imperative that we not leave to chanceany possible question of who shall exer-cise the powers and responsibilities ofthe most powerful office in the world.Congress, if it fails to act on this crucialnational issue, will have refused to ac-cept its responsibility. I believe thatSenate Joint Resolution 1 presents thebest possible answer to the problems ofPresidential inability and succession. Itrepresents a consensus of legal and con-stitutional authorities. It provides a so-lution to an issue of such urgency, notonly for our Nation, but also indeed forthe whole world, that it is incumbent onthe Congress to take immediate action.I strongly support this resolution andhope that the Senate will pass it by anoverwhelming vote.

I yield back any additional time thatI have.

Mr. BAYH. Mr. President, I yield my-self 1 minute.

The PRESIDING OFFICER. TheSenator from Indiana is recognized for1 minute.

Mr. BAYH. Mr. President, I have saidrepeatedly in the Chamber that one ofthe main criteria, if not the main cri-terion, for the orderly transition of ex-ecutive authority is acceptance by thepeople. With all due respect to the Sen-ator from South Carolina, since we havebeen involved in this discussion, I haverepeatedly consulted people in my Stateand other States that I have visited, whowere the members of the electoral col-lege from their State. To date, I havefound one person who knew one memberof the electoral college.

I believe that the people of the UnitedStates would accept a judgment made bythis body and our colleagues in theHouse. I think they would wonder whatin the world was being perpetrated uponthem if we brought in members of theelectoral college whom they did not knowfrom Adam.

The PRESIDING OFFICER. Do theSenators yield back the remainder oftheir time?

Mr. BAYH. I yield back the remainderof my time.

Mr. THURMOND. I yield back theremainder of my time.

The PRESIDING OFFICER. All timehaving been yielded back, the questionis on agreeing to the amendment of theSenator from South Carolina.

The amendment was rejected.The PRESIDING OFFICER. The

joint resolution is open to furtheramendment. The Chair recognizes theSenator from Nebraska.

Mr. HRUSKA. Mr. President, I callup my amendment and ask that it bestated.

The PRESIDING OFFICER. Theclerk will state the amendment.

The LEGISLATIVE CLERK. On page 3,line 20, strike out the word "two" andinsert in lieu thereof the word "seven."

Mr. HRUSKA. Mr. President, myamendment pertains to section 5, whichinvolves a situation in which a Presi-dent has been disabled and a Vice Presi-dent is performing the duties and as-

suming the powers of President as ActingPresident.

When the President declares in writingand sends to Congress his declarationthat he has become restored to compe-tence and ability once again, the billas reported by the committee, provides aperiod of 2 days in which the Vice Presi-dent, with the concurrence of a majorityof the Cabinet members, can take issuewith the President on the question of hisability.

Thereupon Congress shall immediatelyproceed to make a decision. Thelanguage of section 5 provides that"Thereupon Congress shall immediatelyproceed to decide the issue."

It is my contention that the 2-dayperiod is insufficient for the Vice Presi-dent and members of the Cabinet to de-cide whether they want to raise the issueof the President's ability. In these dayswhen much traveling is done by mem-bers of our Cabinet, and when on occa-sion the Vice President also travels fre-quently, if there would be such a decla-ration by the President in the absenceof these parties the 48-hour periodwould obviously prove to be much toosmall.

Originally I had intended to make theperiod 10 days. However, I feel that 7days would be an appropriate and ade-quate time for the members of the Cabi-net to discuss the matter. They couldinform themselves of the actual condi-tion of the President, perhaps visit withhim, perhaps visit with his personal phy-sician. Then they could decide for them-selves, on the basis of intelligent and fullinformation, whether they should upholdthe President's statement that he wasagain restored to capacity. For that rea-son my amendment provides that thereshall be an increase in the permissibleperiod of time from 2 to 7 days.

Mr. BAYH. Mr. President, I yield timeto the Senator from Arkansas [Mr. Mc-CLELLANI.

Mr. McCLELLAN. Mr. President, Ishall vote for Senate Joint Resolution 1.I commend the Senator from Indiana[Mr. BAYHI, the principal sponsor andarchitect of this proposed constitutionalamendment, for the dedicated work hehas done in this vitally important field.

One of the most important proceduresin our democracy is the orderly transi-tion of our Executive power, especiallyin time of crisis. Our system of govern-ment is perhaps most susceptible toforces of disruption during a period ofExecutive transition, and therefore wecannot afford a breakdown, or even aslowdown in such a changeover phase.While we may hope for the best, we mustalways be prepared for the worst. Thiswas never more true than in today'snuclear age, when this morning's crisisis often relegated to the back pages ofthe afternoon newspapers headlining stillanother crisis.

This Nation recently survived atragedy of the worst proportions that ledto the ascendancy of our President, Lyn-don Johnson. But then we were fortu-nate in having a Vice President, particu-larly one who had served in the forefrontof our Government at its highest levels.

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February 19, 1965 CONGRESSIONAL RECORD -SENATE

At some future time we might not be sofortunate.

Now is the time to face the problem,and now is the time to act, before thenext crisis, so that we will be preparedshould the need again arise. And wemust act with extreme care, for we aredealing with a constitutional amend-ment, which by its nature bespeaks ofpermanency.

To cope with the problems of Presi-dential inability and vacancies in theOffice of the Vice President, we mustprovide means for orderly transition ofExecutive power in a manner that re-spects the separation of powers concept,and maintains the safeguards of our tra-ditional checks and balances system.Finally, any such provision must havethe confidence and support of our peopleif it is to accomplish the desired results.

I believe that the pending measuremeets these tests.

So, Mr. President, I salute our ableyoung colleague, Senator BIRCH BAYH,for meeting the challenge. He saw theneed, and while others talked about it,he took the lead in working out a solu-tion and then worked steadfastly for itsadoption. I was privileged to join Sen-ator BAYH as a cosponsor of this resolu-tion and take this opportunity to com-mend the junior Senator from Indianafor his fine contribution in filling thisgap in our Constitution that has plaguedour Nation since its establishment.

Mr. BAYH. I thank the Senator fromArkansas, not only for his kind remarks,but for the significant contribution hehas made, not only in his cosponsorshipof the proposal, but in the enlighteningdebate which was had in the subcom-mittee.

Mr. President, I yield 5 minutes nowto the Senator from Tennessee [Mr.BASS].

Mr. BASS. Mr. President, first of all,I commend the Senator from Indi-ana for the outstanding contributionhe has made and the diligent effort hehas put forth in bringing this proposedconstitutional amendment to the Sen-ate.

I had planned to offer an amendmentto the proposed legislation, but I workunder no misapprehension that myamendment would be accepted.

I would call to the attention of theSenate, however, some of the hazards in-volved in the legislation now pending.In section 2 it is provided:

Whenever there is a vacancy in the officeof the Vice President, the President shallnominate a Vice President who shall takeoffice upon confirmation by a majority voteof both Houses of Congress.

During our recent history I can recalltwo occasions, one when we had a situa-tion of a President of one party havinggone to that Office from the Vice-Presi-dency, and another when there was avacancy in the Vice-Presidency of oneParty with both Houses of Congress un-der the control of the other party. I re-fer to former President Harry Truman.

It would be naive for us to argue thata Congress controlled by one party hav-ing in the Speaker's chair the No. 2 manwho would succeed to the Presidency incase of the death of the President, would

immediately act on the recommendationfor a new Vice President by the Presi-dent then in power and in the oppositeparty.

We all remember another recent oc-casion in which, during 6 years of theterm of President Eisenhower, Congresswas controlled by the opposite party.Should the occasion have arisen at thattime when Congress would be called up-on to confirm the nomination of a VicePresident nominated by the Presidentof one party with an overwhelming ma-jority of the Congress being composed ofthe opposite party, I could foresee theattempt to delay and stall the confirma-tion, because, after all, the prize of 1600Pennsylvania Avenue is seldom given upwithout some fight or some desire tomaintain its possession by any party.We all understand that.

Mr. LONG of Louisiana. Mr. Presi-dent, will the Senator yield?

Mr. BASS. I yield.Mr. LONG of Louisiana. To put the

matter in context, if Richard Nixon hadbecome President and had sent to Con-gress the nomination to make EVERETTDIRKSEN Vice President, the Democratsin Congress would have been in a posi-tion to say, "After all, EVERETT is a won-derful fellow. I suppose if we have tohave a Republican Vice President, wecould not find a better man. But, if wecan take our time, perhaps Sam Rayburncan become President."

Mr. BASS. The Senator is correct.Mr. LONG of Louisiana. While the

Senate would be cooperative, it would bereluctant to give up such a great advo-cate of free speech, and Senators in themajority party might say, "We mighttake our time about this matter. Wehave been working with Sam Rayburn,and if in the course of time somethingshould happen to the new President, wewould not be unhappy to have Sam Ray-burn as our President."

Mr. BASS. The Senator is correct.This situation occurred a few short yearsago, when Sam Rayburn was Speaker ofthe House. At that time there was amajority in the Democratic Party of 70in the House of Representatives, with aRepublican President. If Vice PresidentNixon had succeeded to the Office of thePresidency, his nomination, from myown experience in the House, would havebeen delayed and stalled, because Mem-bers of the House had a deep respect forSam Rayburn. They felt at that timethat he was as qualified to succeed to thePresidency of the United States as anyman in America. They would have con-sidered it a slap in the face to take upany recommendation to displace Mr.Rayburn as the next possible President.

The PRESIDING OFFICER. The 5minutes of the Senator from Tennesseehave expired.

Mr. BAYH. Mr. President, I yield 1additional minute to the Senator fromTennessee.

Mr. BASS. I expect to vote for theSenate joint resolution. The Senatorfrom Indiana is to be commended forbringing it up. I hope it will be passed,but I hope it will be changed so thatmembers of the President's party in theCongress would vote for the confirma-tion. If that is not possible, I think we

should definitely impose a time limit sothat Congress would be forced to act im-mediately on such a recommendation,and not have the situation that we havehad in the past few years. We have hadthis situation on three different occa-sions.

So, Mr. President, I make these re-marks only to point out some of thehazards we are facing in adopting theamendment. I hope that the Senatorfrom Indiana will give consideration toadopting some of the recommendationswhich I have made.

Mr. PASTORE. Mr. President, willthe Senator yield at that point?

Mr. BAYH. I am glad to yield.Mr. PASTORE. I do not mean to be

facetious in asking this question, butdoes not the Senator from Tennessee[Mr. BASS] feel that we should also takeinto account rule XXII of the SenateRules, that a band of Senators could ac-tually conduct a filibuster without anylimitation as to time for debate and coulddefeat the very purpose of this constitu-tional amendment?

Mr. BASS. The Senator is correct. Idid not point to the specific ways it mightbe stalled or delayed, but that is one ofthe methods by which it could becomeone of the hazards involved in adoptingsuch an amendment.

Mr. BAYH. Mr. President, let mepoint out, in studying this situation care-fully, that the Senator from Tennesseeand the Senator from Rhode Island hitupon only two of the many possibilities,if we are to expand our wildest dreams.

The specific point to which the Sen-ator from Tennessee refers, I should liketo point out, is very little different fromthe customary constitutional require-ments of advise and consent which theSenate has had over Executive appoint-ments; and that during the period towhich the Senator referred, the Presi-dent was of one party and the Congresswas of another, there was very little dis-cussion and refusal on the part of thelegislative branch to accept the appoint-ments of the President.

Mr. BASS. I believe that we wouldhave much more of a problem in con-firming the recommendations of thePresident if we knew-or if we refused toconfirm one of his recommendations-that one of our own people would go tothe job next. That question is involved.

Mr. BAYH. I have more faith in theCongress acting in an emergency in thewhite heat of publicity, with the Ameri-can people looking on. The last thingCongress would dare to do would be tobecome involved in a purely politicalmove..

Mr. BASS. The election of the Presi-dent is just as political as anything canbe, under our American system. Withthe next man in line sitting in theSpeaker's chair, this becomes a politicalbomb. We are very political in choosingour President. I hope that situationwill always remain. I believe that itshould be that way. Under our system,it must be that way.

Mr. PASTORE. Mr. President, willthe Senator from Indiana yield for aquestion and an observation?

Mr. BAYH. I yield.

3275

CONGRESSIONAL RECORD- SENATE February 19, 1965Mr. PASTORE. I was looking at lines

22 to 24 on page 3 of the resolution, whichread:

Thereupon Congress shall immediatelyproceed to describe the issue.

It shall transact no other business un-til this issue is decided. If we are talk-ing about restoring the Presidency, itwould occur to me that there should bea mandate upon Congress that once suchan issue came before it involving thechief elective office of the United States,the man who has the trigger on theatomic bomb, Congress should not in-dulge in any other business until it hasdecided that issue. That should be apart of the section.

Mr. BAYH. This situation was dis-cussed at great length in the committee,where two diametrically opposed pointsof view were developed, one of whichwas that a time limit was needed, as theSenator from Tennessee specifies, and asthe Senator from Rhode Island urgesimmediacy; the other thought being thatwe did not wish to be pushed to a closelimitation, that Members of this bodyand Members of the House of Repre-sentatives would not have sufficient timeto call the doctors, or members of theCabinet. If it is the wisdom of the Sen-ator from Rhode Island, the Sen-ator from Tennessee, and the major-ity of this body that they shall not dis-cuss or--

Mr. PASTORE. Transact any otherbusiness.

Mr. BAYH. Transact any other busi-ness until this matter has been decided,if this ties us down, I shall be very happyto accept it, if the Senator will write itup.

Mr. BASS. I would agree with theSenator from Rhode Island. I believethat Congress should meet in joint ses-sion and conduct no other business un-til this particular issue is satisfied. Thatis only a thought on my part, but I be-lieve that the suggestion of the Senatorfrom Rhode Island is very good, but somelimit should be put on it in some way, tomake sure that stalling and delaying tac-tics cannot be carried out.

Mr. ERVIN. Mr. President, will theSenator from Indiana yield?

Mr. BAYH. I yield.Mr. ERVIN. Does not the Senator

from Indiana agree with me that theword "immediately" does exactly that?The words "immediately proceed" meanthat we are going to do that and nothingwill occur in between.

Mr. BAYH. That is exactly my feel-ing, as the Senator from North Carolinaknows.

Does the Senator from North Carolinaobject, if it clarifies the point to someSenators, to including the reference thatwas made by the Senator from RhodeIsland? The reason this was not tieddown more specifically-

Mr. ERVIN. I do not see the neces-sity for it, because that is what the word"immediately" means to me.

Mr. PASTORE. It does not meanthat to me.

Mr. BAYH. Mr. President, do I stillhave the floor?

The PRESIDING OFFICER. TheSenator from Indiana still has the floor.

Mr. BAYH. Let me suggest that theSenator from Rhode Island and the Sen-ator from North Carolina might discussthis for a moment while I discuss thepending amendment, which is a differentamendment, if I may return to it.

The amendment suggested by the ableSenator from Nebraska [Mr. HRUSKA],raising the number of days from 2 to 7in which the Vice President and theCabinet would have to deliberate on thisimportant decision, would make it a bet-ter resolution, give time in which tostudy and review the evidence, and per-haps discuss it with the President. Ishall be glad to accept the amendment.

Mr. President, I yield back the re-mainder of my time on the amendment.

Mr. HRUSKA. Mr. President, I yieldback the remainder of my time on theamendment.

The PRESIDING OFFICER. All timeis yielded back. The question is onagreeing to the amendment of the Sen-ator from Nebraska [Mr. HRUSKA].

The amendment was agreed to.Mr. PASTORE. Mr. President--The PRESIDING OFFICER. The

Chair recognizes the Senator from RhodeIsland [Mr. PAsTORE].

Mr. PASTORE. Mr. President, I moveto amend Senate Joint Resolution 1 byadding on page 3, line 24, after the word"issue," the following words: "and noother business shall be transacted untilsuch issue is decided."

Mr. BASS. Mr. President, will theSenator from Indiana yield?

Mr. BAYH. I yield.Mr. BASS. My point has been that

the amendment in section 2 should be onthe election of a new Vice President.The Senator from Rhode Island is pro-ceeding on the issue of Presidential in-ability. I am talking about the electionof a new Vice President.

Mr. PASTORE. I am talking aboutPresidential inability.

Mr. BASS. What about the electionof a new Vice President?

Mr. PASTORE. The Senator can sub-mit that amendment for himself.

Mr. BASS. Mr. President, I offer anamendment to section 2-

Mr. PASTORE. Mr. President, willthe Senator wait until my amendmenthas been considered?

Mr. MANSFIELD. Put them both intogether in line 16.

The PRESIDING OFFICER. TheSenator from Rhode Island still has thefloor.

Mr. PASTORE. Mr. President, I askthat my amendment be read.

Mr. BAYH. Mr. President, let me askSenators to think about this issue for amoment. As has just been pointed outto me by the Senator from Nebraska, thedifficulty of getting specific, precise lan-guage "immediately proceed to decide"means, to me, just what we are trying toaccomplish, with one exception, that ifit is necessary, as the Senator points out,to declare war or some other great na-tional emergency should come upon us,there can be little question in the mindsof anyone that it is mandatory and thatwe must discuss and decide. This, how-ever, takes a little time. Does this pro-posal not preclude us from doing that?

Mr. PASTORE. The Senator from In-diana just finished saying that we mustact as reasonable people. We are talk.ing about restoring a President who isthe rightful occupant of 1600 Pennsyl-vania Avenue. In the meantime, sup.pose we have a serious crisis on ourhands. We may have to go to war. Dowe not believe that Congress should actimmediately and decide no other busi-ness until we find out who the Presidentis going to be-that is, the man who willhave his finger on the trigger of theatomic bomb? That is precisely thequestion that I am raising. Naturally,we are talking about the President of theUnited States, the one man who, aboveall others, is the only person who candecide whether a hydrogen or an atomicbomb will be dropped.

We are living in a sensitive and peril-ous world. All I am saying is that ifthis serious question ever comes beforeCongress-and God forbid that it everwill-but if for some reason we havea President who becomes incompetentand has been declared incompetent andthe Vice President has taken over, andlater the President comes forward andsays, "I am restored to competency andhealth. I wish my powers back, thepowers that were given to me by thepeople of the United States," I do notwish to witness a filibuster. We could bein a filibuster. That is what is wrongwith the proposed legislation. We arenot getting to the root of the issue-the root of it being the rules of the Sen-ate. The Senate is still subject to therules of the Senate. Here we are. Weare met with a crisis.

The PRESIDING OFFICER. Doesthe Senator from Rhode Island yieldhimself some time?

Mr. PASTORE. I do.Mr. HARRIS. Mr. President, will

the Senator yield to me?Mr. PASTORE. May I finish, please?All that I am saying at this time is, if

the words "immediately proceed to de-cide" mean exactly what I say theymean, then, of course, we are reallyarguing in a paper bag. I do not thinkthe language is that explicit. I believeit should be clarified. What the Sena-tor from Indiana has brought to the flooris a masterful piece of work. However,once this issue comes before Congress,these doors ought to be closed, and weought to stay here until we decide thatquestion, even if we must sit around theclock, or around the calendar, becausethis problem involves the Presidency ofthe United States.

I would hope that we would not getourselves "snafued" in a filibuster, inwhich two people could say, "We wantthe Speaker of the House to be Presi-dent." We do not want them to be ableto say, "We do not want the man whosename has been submitted to be Presi-dent." I would hope that we wouldthink too much of the country and thewelfare of the country and the peace ofthe world to indulge in that kind ofantic.

However, we ought to write this provi-sion into law, because it is a fundamen-tal question, and we should decide noth-ing until that question is decided.

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February 19, 1965 CONGRESSIONAL RECORD - SENATE

If the present language means that, Iam satisfied. I have no pride of author-ship. If it does not mean that, it oughtto be corrected.

The PRESIDING OFFICER. Thedifficulty is that the Senator's amend-ment is not at the desk.

Mr. PASTORE. I cannot write quitethat fast. If I may have a moment, Ishall be glad to write it out.

Mr. HARRIS. If the Senator will yieldto me, he will have time to write it out.

Mr. PASTORE. I yield.Mr. HARRIS. Mr. President----Mr. BAYH. Mr. President, I should

like to suggest that this is time which isbeing consumed on the amendment to beoffered by the Senator from Rhode Is-land, which he is in process of inscribingin his fine hand.

Mr. PASTORE. I agree that it willbe in a fine hand.

The PRESIDING OFFICER. TheChair so understands.

Mr. HARRIS. The Senator fromRhode Island has yielded to me.

Mr. PASTORE. I yield to the Senatorfrom Oklahoma.

Mr. HARRIS. I should like to askthe distinguished Senator from Indianaa question. I have been discussing thismatter with a certain Senator, and hetells me that the word "immediately"deals with inability. He also tells methat if the amendment were adopted andthe Vice President should become thePresident of the United States, theSpeaker of the House would no longerbe next in line. Is that correct?

Mr. BAYH. The Senator is correct.Mr. HARRIS. What happens, and

who becomes President if no nominationhas been confirmed?

Mr. BAYH. The Speaker of theHouse.

Mr. HARRIS. I have just asked thatquestion of the Senator.

Mr. BAYH. No; the Senator did notask me that question. He has asked ifthe nominee whose name is before Con-gress becomes Vice President, then whobecomes President?

Mr. HARRIS. No. If Congress doesnot confirm, if no nomination is beforeCongress, is the Speaker of the Housestill in line for the Presidency?

Mr. BAYH. Yes.Mr. HARRIS. Therefore, in section 2

of the joint resolution there is no timelimit.

Mr. BAYH. Is the Senator addressingme? Does the Senator wish me to givean answer to that question, if it is aquestion?

Mr. HARRIS. Yes.Mr. BAYH. I would be glad to tell

the Senator the difference between theword "immediately" in section 5 and theword "immediately" in section 2.

Mr. HARRIS. There is no word "im-mediately" in section 2.

Mr. BAYH. I should like to explainit to the Senator.

Mr. HARRIS. I should like to havean explanation.

Mr. BAYH. In section 5, which is be-ing considered by the Senator fromRhode Island [Mr. PASTORE], we dealwith the question: "Who is the President

of the United States?" That can beonly one man.

In section 2 we are dealing with theselection of a Presidential replacementwhen a vacancy exists.

Mr. HARRIS. I understand.Mr. BAYH. There is a President who

is able to conduct business and to carryon the affairs of our country. I shoulddislike to see everything that must bedecided by Congress come to a stop inthe event Congress becomes logjammedon this question. It is conceivable thatthe example the Senator from Tennes-see cites could come to pass. However,I believe there is very little likelihoodthat it would.

However, we would have a President, ifCongress should become involved in adispute which could not be solved; andby adding the word "immediately" weare saying that Congress cannot dis-charge its duties while it is deciding onthe Vice President. I do not attach thesame importance to the decision withrespect to the Vice President as I do withrespect to the President.

Mr. HARRIS. The Senator may notattach the same importance to it, butwe would have the situation that wasdescribed before if we did not impose atime limit within which action must betaken. If we had a President of oneparty and a Congress of another party,we would still encourage stalling anddelay, and we could wind up for a periodof 6 or 8 months or even 2 years inwhich Congress would not have to actin this situation, and we would still bein the same position of having the Speak-er of the House the next man in line.

That situation should be changed. Iagree with the Senator that Congressshould elect the Vice President. I hadhoped that it would be only by membersof the President's own party. However,I will accept his amendment. At thesame time, I wish to warn him that ifhe does not put some time limit in theamendment as to when Congress shallact on it, we shall find ourselves in thesame situation; and if we do nothing,the Speaker of the House will be the nextman in line. If the majority party inCongress is not the same as the party ofthe President, no action will be taken.

Mr. BAYH. Mr. President, I yieldmyself sufficient time to address myselfto the amendment offered by the Sena-tor from Rhode Island.

I should like to say one word of ex-planation as to the intent of the word"immediately" on page 3 of the report.I quote:

Precedence for the use of the word "im-mediately" and the interpretation thereofmay be found in the use of this same word"immediately" in the 12th amendment tothe Constitution.

In the 12th amendment, as the Sena-tor knows, in the event no candidate forPresident receives a majority of the elec-toral votes, it is the responsibility of theHouse to decide who the President shallbe; in the case of the Vice President,it is the responsibility of the Senate.

We should have some sense of urgencyin this situation and put all other thingsaside.

Mr. PASTORE. Does not the Senatorbelieve that it would take care of anyambiguity if we wrote that language intothis provision? All that my amendmentprovides is, "No other business shall betransacted until such issue is decided."

That is very clear. It is not inimicalto any other provision of the Constitu-tion. It should be written in as a safe-guard, so that there will be no questionabout it. If the Senator agrees withme that that is what we mean, we shouldput such language in the provision. Weshould not have the issue come up andhave someone say, "Let us refer it tocommittee," because the committeecould hold hearings, and we would ac-cept that as immediate consideration.

I want to keep Congress in continuoussession on this point. I want 100 Sena-tors on the floor and 435 Representa-tives on the floor in the House until theyhave decided this important question, be-cause it is vitally important. I say wemust not transact any other businessuntil we have decided this question.

Mr. BAYH. I believe the record of thedebate will make it abundantly clear thatthe Senator from Indiana agrees withthe Senator from Rhode Island as to theurgency that is involved.

I would prefer not to use additionallanguage. I do not believe there is anymore urgency in deciding this problemthan there is when the House and theSenate must decide the question of whothe President and Vice President shallbe under the terms of the 12th amend-ment.

Mr. PASTORE. Will the Senatoragree to take the amendment to con-ference? If it is necessary that it beeliminated in conference, I shall feel nooffense. What harm can it do if werecodify it?

Mr. HART. Mr. President, will theSenator yield?

Mr. BAYH. I yield to the Senatorfrom Michigan, who has the answer.

Mr. HART. The Senator from Michi-gan believes that the answer of the Sen-ator from Indiana to what he has justsaid would be "no."

Mr. BAYH. I am sorry; I did not hearwhat the Senator said.

Mr. HART. The Senator from RhodeIsland read language which would re-quire us to conduct no other business un-til we resolved the question, which in thecase of sections 4 and 5 would be: "Whois the President of the United States?"

I agree that we would all be pretty re-sponsible in attempting to answer thequestion as promptly as we could.

What we are talking about is a situ-ation in which the Senate, in the eventof a cruel national crisis might find twomen contending that each is the Presi-dent of the United States.

Pray God that it never happens. Ifthe Senate should adopt the amendmentoffered by the Senator from Rhode Is-land, under the pressure and heavysense of responsibility that would bepresent, we would conduct no other busi-ness until we have answered the questionas to who the President is. I know theingrained traditions of the Senate withrespect to unlimited debate. But why

3277

CONGRESSIONAL RECORD - SENATE February 19, 1965could we not add additionally the lan-guage-and I think a constitutionalamendment would override the rules ofthe Senate-that we shall vote not laterthan 3 calendar days thereafter? If in72 hours we cannot determine who isthe President of the United States, theworld will have passed us by, anyway.Why do we not pin down precisely whenwe shall vote on the question?

Mr. BAYH. Mr. President, I invitethe Senator from North Carolina [Mr.ERVIN] to speak to the specific point nowbeing discussed, because it was debatedat great length in the committee.

Mr. ERVIN. I think the answer to thequestion is that we are attempting todeal with the question of the disabilityof the President. The problem may beone of mental disability, and evidencewould have to be adduced. I presumeCongress could appoint a committee totake care of that question. The testi-mony might not be completed in 3, 4,or 5 days. I believe that is the answer.

Mr. HRUSKA. Mr. President, will theSenator yield?

Mr. BAYH. I yield to the Senatorfrom Nebraska.

Mr. HRUSKA. If we get into theprocess of amending a proposed consti-tutional amendment on the floor of theSenate, we shall be treading on danger-ous ground. I say that the proposedamendment is difficult, and probably un-necessary, although I shall not opposethe amendment for the purpose of tak-ing it to conference so that the confereesmay consider it.

However, the subject was consideredin the committee, as the chairman knows.

Let us remember, that the issue is veryserious. It could not be raised unless atleast six members of the Cabinet, whowould have been appointed by the Presi-dent, should assert his inability, togetherwith the transmittal of a message by theVice President, to the Congress.

We considered the idea of a filibusterin the committee. But the difficulty is inrespect to the period of time that wouldbe allowed. Should we provide for aperiod of 10 days, 3 days, or 60 days?

Suppose the question should relate tothe mental ability of the President. Anexamination would be necessary. Psy-chiatrists would not be able to go intothe President's office, look him over, andsay, "The man is insane," or, "the manis not insane." They would need time inwhich to observe and conduct tests.Congress would need time to hear thereasons why the members of the Cabinethad said, "Mr. President, you are not ableto resume the duties and powers of youroffice." That process would take time.It was felt, in the committee, that theCongress would rise to the importanceand urgency of the task at hand. Howsilly it would be of us to insert restrictinglanguage to the effect that while wemight be waiting for the report ofpsychiatrists, we could transact no otherbusiness. I believe that such actionwould reflect upon the intelligence andthe good faith of the Congress and wouldnot be advisable in a constitutionalamendment.

All of those points were taken into con-sideration before we agreed to leave theprovision as it is.

Mr. PASTORE. Mr. President, willthe Senator yield?

Mr. BAYH. I am happy to yield tothe Senator from Rhode Island.

Mr. PASTORE. Is the Senator fromNebraska actually saying that the word"immediately" means that other busi-ness could be transacted in the mean-time?

Mr. HRUSKA. No.Mr. PASTORE. That is what I

thought the Senator was saying.Mr. HRUSKA. It means that the Con-

gress should address itself immediatelyto the question which we are discussing.Meanwhile collateral questions mightarise; and while hearings were beingconducted on that question, why shouldwe tie our hands? An urgent situationof national import might arise.

Mr. PASTORE. Why should we tieour hands? As I have said many timesbefore, we are living in a very sensitiveworld. The only man in the UnitedStates under our law who has the powerto drop the atom bomb is the President.It is absolutely important to decide whothat President shall be. God forbidthat we should ever be placed in sucha position. But I can conceive ofnothing prore important to the people ofour country and the peace of the worldthan to determine the question as to whois the President of the United States.We ought to do nothing until we deter-mine the answer to that question even ifit should mean that we would be re-quired to remain in the Senate Chamberaround the clock.

I do not agree that the measure oughtto be limited as to time because, afterall, I do not know what the situationwould be. All I am saying is that whilesuch an important question-the mostimportant question that could beset thepeople of .our country-as determiningwho is the President, in a moment ofcrisis, is pending, we ought to determinethat and nothing else.

We should include a restriction in thejoint resolution that we would do noth-ing else but determine that question, andwe would do so expeditiously. But if weshould permit Senators to talk aboutwhat color the rose in the State of RhodeIsland should be, or what flower weshould adopt as our national flower, andhave a morning hour to talk about pan-sies in the spring while we are trying todetermine who the President of theUnited States should be-and there issometimes a tendency to indulge in suchthings in moments of capriciousness-we might face serious consequences. Isay let us avoid that. Let us act cor-rectly. We desire to amend the Con-stitution. I say that when there is aquestion as to who should be the Presi-dent of the United States, we should donothing else until we make a decision onthat question. Such a provision oughtto be in the law.

Mr. MANSFIELD. Mr. President, willthe Senator yield?

Mr. BAYH. I yield to the Senatorfrom Montana,

Mr. MANSFIELD. It is my under.standing that both the Senator in chargeof the joint resolution and the rankingminority member of the committee havestated that they will accept the amend.ment offered by the Senator from RhodeIsland and take it to conference.

Mr. PASTORE. Oh, no. They havenot said that yet. I am waiting for themto say it.

Mr. HRUSKA. I have so indicated.Mr. PASTORE. But the Senator in

charge of the bill has not said that hewould accept it.

Mr. HRUSKA. I would not join inwriting in such an amendment, but Ihave said that I would not object to theamendment being accepted and taken toconference. I do say that the sense ofurgency and importance which has beendescribed so eloquently by the Senatorfrom Rhode Island would seem to makeit the type of problem to which the Con-gress will react in a proper fashion. Thatwas the considered judgment of the com-mittee after lengthy discussion. I makethat statement now because the subjectwill be considered in conference, and theconferees should have the reasons for thecommittee's action.

Mr. BAYH. Mr. President, it seems tome that we are unanimous in our inten-tion. Our dispute is with respect to whatwords would adequately express our in-tention.

Mr. PASTORE. That is correct.Mr. BAYH. I should like to ask the

Senator from Rhode Island a question.Does the Senator feel that we would de-cide a different question in relation tosection 5 of Senate Joint Resolution 1than would be decided under the pro-visions of the 12th amendment of theConstitution, in the event this body wererequired to decide who the Vice Presi-dent would be, and the House were re-quired to decide who the President wouldbe, where the use of the word "immedi-ately" is present? We have precedentfor that. It means "immediately," "getgoing," "dispense with everything else."

Mr. PASTORE. I agreed with every-thing that the Senator from Indiana saiduntil the Senator from Nebraska asked,"Do you mean to say that while this mat-ter is being considered we would not beable to transact any business?"

That question would imply, under theproposed language, that we could trans-act other business.

Mr. HRUSKA. We certainly couldand we might want to.

Mr. PASTORE. The Senator fromRhode Island is trying to avoid that-and I am being very explicit about it-by saying, "Write a provision in the jointresolution to the effect that we could nottransact any other business until thequestion discussed had been decided."

If that is what the Senator desires,what would be the harm?

Several Senators addressed the Chair.The PRESIDING OFFICER. The

Senator from Indiana has the floor.Mr. BAYH. Mr. President, I should

like to yield to the Senator from NorthCarolina.

Mr. BASS. Mr. President, a parlia-mentary inquiry.

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February 19, 1965 CONGRESSIONAL RECORD -SENATE

The PRESIDING OFFICER. Doesthe Senator from Indiana yield for thatpurpose?

Mr. BAYH. I yield for a parliamen-tary inquiry.

The PRESIDING OFFICER. TheSenator from Tennessee will state hisparliamentary inquiry.

Mr. BASS. Does the amendment nowpending, offered by the distinguishedSenator from Rhode Island, include lan-guage that mentions section 2 of thebill, which relates to the election of a newVice President?

The PRESIDING OFFICER. Theclerk will state the amendment.

The LEGISATIVE CLERK. On page 2,line 16, after "Congress," it is proposedto add: "and no other business shall betransacted until such issue is decided."

Mr. BASS. The Chair, then, wouldhave to answer my inquiry in the affirma-tive; is that correct?

The PRESIDING OFFICER. TheSenator is correct. The Senator fromNorth Carolina has the floor. Has heyielded the floor?

Mr. ERVIN. Yes.Mr. HART. Mr. President, on the

Pastore amendment, may I have a mo-ment?

Mr. PASTORE. Mr. President, howmuch time have I remaining?

The PRESIDING OFFICER. TheSenator from Rhode Island has 20 min-utes remaining.

Mr. PASTORE. I yield to the Senatorfrom Michigan as much time as he re-quires.

Mr. HART. It was I who inquiredwhy there ought not, in effect, be a timecertain. I suggested that the action betaken within 3 days. I heard the Sen-ator from Rhode Island reply that hewould not go that far; that he could notsee a capricious person holding the floorand talking about the color of the rosein Rhode Island, and so on. What con-cerns me---

Mr. PASTORE. No; I said I could seesuch a person.

Mr. HART. If the Senator could seeone, I should think it would be desirablethat some time limit be set. But even ifhe could not see such a person, I cansee-and I ask Senators if they mightnot see-35 sincere men in a time ofintense danger and high emotional crisissaying that a Vice President who wouldnot put missiles somewhere was a betterman than a President, who wanted tocome back and would put missiles some-where. Such a debate could continuefor a long time. Would we be better offleaving the question unresolved? Basi-cally, that is the problem.

Mr. ERVIN. If we cannot trust Mem-bers of the Senate and House to exerciseintelligence and patriotism in a time ofnational crisis, we might as well not doanything. We might as well not try toimprove the situation. I think weshould pass a constitutional amendmentand leave the action to be taken underthat constitutional amendment to thosewho are in office at the time such actionmust be taken. I think we shall haveto indulge the assumption that thosepersons will love their country as muchas we do; that they will not jeopardize

their country by holding up the consid-eration of matters of that kind.

This is essentially a subject, as I saidbefore, which will require the taking oftestimony. We cannot put a time limiton the search for truth, especially whenit concerns the intelligence of the Presi-dent.

The amendment offered by the Senatorfrom Rhode Island would not jeopardizethe situation in that way. I see no ob-jection to his amendment. But to tryto set a time limit because it is fearedthat the action of those who would becontrolled by this condition would bedelaying, requires us to assume that theywould not be patriotic and intelligentand would not act reasonably.

Mr. HART. The patriotism of the 35Senators who would not wish to put mis-siles down is not in question.

The PRESIDING OFFICER. Whoyields time to the Senator from Michi-gan?

Mr. BAYH. I will yield time.Mr. HART. I presume that the patri-

otism of the 35 Senators who would haveat heart the interests of their children isnot in question. I presume that 35Senators who would not be under a cloudwould also be patriotically motivated,and thus the debate could go on forever.

Mr. ERVIN. Has not the Senator'sown language overcome the conclusionthat the 35 Senators would not performtheir duties but would determine thephysical state or mental state of thePresident, instead of concerning them-selves with where the missiles shall beplaced?

Mr. HART. I would hope that each ofus would attempt to be objective in hisreview of the medical testimony. But Igreatly fear that if there were a deepconviction harbored by 35, there wouldbe tragedy compounded, and the resultwould be the bringing back of a manwhose policy would be to bring back mis-siles that would create havoc, and wewould confuse medical testimony withour obligation.

I think the roll should be called at someprecise time, and I suggest 3 days.

Mr. BAYH. The situation to which theSenator from Michigan refers is onethat has not gone unnoticed by the Sena-tor from Indiana. Before this circum-stance arose, the Vice President, a ma-jority of the President's Cabinet, andtwo-thirds of the House of Representa-tives, which does not have unlimited de-bate, would have to support the conten-tion of the Vice President. As soon asone less than two-thirds of the Housecast their votes, the issue would becomemoot, and the question would be "out ofcourt."

Mr. HART. Would not the Senatehave a voice in that decision?

Mr. BAYH. It would take two-thirdsof the Senate and two-thirds of theHouse to sustain the position of the VicePresident.

I think the record is abundantly clearthat the Senator from Rhode Island andthe Senator from Indiana see eye to eye.The record is written.

Mr. PASTORE. Do I correctly under-stand that the Senator from Indiana willaccept my amendment?

Mr. BAYH. I was under the impres-sion that the Senator from Rhode Islanddid not think it was necessary.

Mr. PASTORE. I did not say that atall. I never said that.

Mr. BAYH. I see no objection to tak-ing the amendment with one proviso. Ishould like to drop the last word; I donot think it is necessary.

Mr. PASTORE. Very well; if the Sen-ator does not believe it is necessary, Ishall drop it.

Mr. BASS. Mr. President, what is thesituation now?

Mr. BAYH. The amendment of theSenator from Rhode Island would thenread as follows: "and no other businessshall be transacted until such issue isdecided."

Mr. PASTORE. That is correct.Mr. BASS. Does that also apply to

section 2 of the joint resolution?Mr. BAYH. No, it does not apply to

section 2. I thought I had made it abun-dantly clear that we were dealing withtwo different provisions. It is impera-tive that the Senate immediately proceedto decide who the President is. It will benecessary to have an able bodied Pres-ident. I do not believe we need to grindeverything to a halt to decide who theVice President is. Two different issuesare involved.

Mr. PASTORE. That is correct.Mr. BAYH. I ask the Senator from

Tennessee: What is the worst thing thatcould possibly happen if we did not in-clude the word "immediately" in sec-tion 2?

Mr. BASS. The worst thing that couldhappen would be that Congress wouldstall, delay, and use dilatory tactics. Wewould end exactly where we are. If wedo not accept this conclusion, we mightas well strike out everything in theamendment and deal only with the dis-ability phase. If we are to deal withsuccession, we shall have to includesome sort of requirement.

Why does not the Senator include theword "immediately" in this section, ashe did with respect to disability?

Mr. BAYH. Because I do not attachthe same importance to the choosing ofa Vice President as I do the choosing of aPresident. If the Senator from Ten-nessee desires to propose such an amend-ment, I suggest that he offer it separately.

Mr. BASS. I shall offer a separateamendment.

Mr. BAYH. I suggest that he do so.Mr. SALTONSTALL. Mr. President,

will the Senator from Indiana yield?Mr. BAYH. I yield.Mr. SALTONSTALL. I hope we shall

not adopt this amendment or any addi-tional amendments of this character.We are trying to amend the Constitutionwith respect to an important question.If an amendment is to be offered on thefloor of the Senate, I believe the billshould be returned to committee for alimited time, to make possible a carefuldiscussion of what the amendments are.

Both the Senate and the House aregoverned by rules. If there were to bea declaration of war, or if some othermatter of grave importance should arise,we have rules, and we can limit debate.If we have any confidence in the great

3279

CONGRESSIONAL RECORD - SENATE February 19, 1965majority of the Members of the Senate,we can count upon two-thirds of theSenate to impose cloture and thus closedebate.

I hope that we can have confidencethat future Members of Congress willexercise commonsense on a question ofthis character. I hope sincerely thatthe amendment of the Senator fromRhode Island-and I have great respectfor the Senator from Rhode Island-willnot be adopted. I hope that the pro-posed constitutional amendment will bepassed as the committee has recom-mended it.

If there is any question of the proposedconstitutional amendment not beingagreed to, I shall use whatever parilia-mentary procedure I can to send the pro-posed constitutional amendment backto committee for 1 or 2 weeks to try toimprove this measure.

I hope that the amendment of the Sen-ator from Rhode Island will be rejected.

Mr. PASTORE. Mr. President, if theSenator from Massachusetts will makea motion to send the measure back tocommittee, I shall second the motion.

We are amending the Constitution ofthe United States. I hope that no friv-olous arguments were made by the Sen-ator from Rhode Island. All I say isthat if it is important enough to deter-mine who the President of the UnitedStates shall be in a time of crisis-andI repeat that he is the man who, underour law, has the sole authority to dropan atomic bomb-I think it is incumbentupon this body to transact no other busi-ness until that issue is determined. Thatis all the Senator from Rhode Island isdoing. What is wrong with it, I ask theSenator from Massachusetts?

The argument is made that theremight be involved an issue that means adeclaration of war. Does not the Sena-tor think we ought to find out first whothe President of the United States isbefore we declare war? That is the manwho can drop the bomb.

Mr. SALTONSTALL. Mr. President,will the Senator yield? He has asked aquestion. Will he yield so that I maygive my answer?

Mr. PASTORE. I yield.Mr. SALTONSTALL. My answer is

simple. This is a very important sec-tion of our fundamental law. We can-not decide on this proposed amendmentin the Senate Chamber pursuant to anamendment written in long hand. I donot think the amendment is necessary.We can depend upon the commonsenseof our successors in this body if thequestion arises. But if the majority ofthis body feels that we should havesomething of this kind, the proposedconstitutional amendment should goback to the committee and be carefullyworded and worked out.

Mr. PASTORE. I do not object tothat. But we have a perfect right todebate these questions. That is all weare doing. We have a perfect right toset forth our arguments. That is allwe are doing.

If the Senator from Massachusetts isso sensitive that, because this is a pro-posed constitutional amendment, wecannot even make a logical argument,

no matter how logical it is, what arewe doing here? We might as well takewhat the committee produces, close oureyes, put on blindfolds, or wear blinkers,and say, "That is it."

We are seeking to improve the jointresolution. The Senator in charge ofthe joint resolution has already admittedthat there is some substance to the argu-ment that is being made. His only argu-ment is that the joint resolution withthe present language does exactly whatI am proposing to do. The only troubleis that the minority leader disagreeswith him. All I am trying to do is tostraighten it out by inserting certainlanguage.

Mr. McCLELLAN. Mr. President, aparliamentary inquiry.

The PRESIDING OFFICER. TheSenator will state it.

Mr. McCLELLAN. Mr. President, as-suming that the proposed constitutionalamendment were adopted, may I inquirewhether the swearing in of a Senator tofill a vacancy would constitute the trans-action of other business?

The PRESIDING OFFICER. TheChair informs the Senator that that isnot a parliamentary inquiry. That is aninquiry of substance.

Mr. McCLELLAN. Mr. President, isthe swearing in of a Senator a transac-tion of business by the Senate?

The PRESIDING OFFICER. It is.Mr. McCLELLAN. Then I point out,

Mr. President, that if there were avacancy in the Senate when this issuearose, and a State had only one Senatorat the time, but a second Senator hadbeen appointed and was ready to besworn, that State would be denied itsconstitutional representation in this bodyduring that time.

So there is one situation, and theremay be other situations, in which theSenate ought to transact some otherbusiness.

Mr. HRUSKA. Mr. President, will theSenator yield?

Mr. BAYH. I yield.Mr. HRUSKA. Mr. President, would

not another situation be in the event asituation arose between the time of theelection of Congress and the time thatCongress were to meet? It would be nec-essary for the House to organize, and thatis the transaction of business. Therewould not be anyone qualified to con-sider this business until other businesswas transacted.

Mr. McCLELLAN. Mr. President, ifthe amendment is accepted, I hope it willbe referred back to the committee forfurther study.

Mr. BAYH. Mr. President, I yield tothe Senator from Maryland.

Mr. TYDINGS. Mr. President, my re-marks are addressed to the amendmentproposed by the Senator from RhodeIsland. I have listened with interest tothe eloquence of the Senator. I pointout that the Subcommittee on Constitu-tion and Bylaws of the Committee onthe Judiciary, and, in fact, the entireCommittee on the Judiciary, consideredthe very point which the Senator fromRhode Island raises.

We felt that the language "immedi-ately," already in article XII of the Con-

stitution-which has to do with the selec.tion of the President and the VicePresident-is good language.

We also considered a considerablenumber of amendments similar to thoseproposed by the Senator from Michigan,They related to a time of 2, 3, 10, 15, or60 days. But we considered the entirecontext of section 5. Section 5 estab-lishes that procedure which would befollowed after two circumstances takeplace.

In the first place, the President, or VicePresident, and a majority of the mem-bers of the President's own Cabinetwould have to place their career, reputa-tion, and their sacred honor at stake, andpublicly write and declare that the Pres-ident was not fit or able to serve asPresident.

Mr. HART. Mr. President, will theSenator yield at that point?

Mr. TYDINGS. I would prefer to fin-ish before yielding.

Secondly, the President would then as-sert himself and send a declaration toCongress. Then his Vice President anda majority of the members of his Cabi-net would again, in a sense, have to placetheir sacred honor and reputations atstake that they felt that the President,the man who had selected them, was notable to hold down the office of President.

Then the question would go to theCongress of the United States. We feltthat the language "immediately" used inthe article XII of the Constitution wouldbe the best language. If we put in lan-guage such as that used by the Senatorfrom Rhode Island, which would restrict,tie up, and stop the Government, in ef-fect, from operating, it might compoundan already difficult situation.

I oppose the amendment of the Sena-tor from Rhode Island for the reasonthat I think his amendment, rather thandoing what he would want to do; namely,improve the situation, might actuallycompound a bad situation and tie up theGovernment worse than it already was.If such a situation were to occur, itwould be difficult enough.

The word "immediately," already inthe Constitution, is sufficient, and itought to be retained.

The PRESIDING OFFICER. TheChair would like to have the amendmentrestated for clarification of the RECORD.

The LEGISLATIVE CLERK. On page 3,line 24, after the word "issue," add thefollowing: "and no other business shallbe transacted until such issue is decided."

On page 2, line 16, after the word"Congress," add the following: "and noother business shall be transacted untilsuch issue is decided."

The PRESIDING OFFICER. Will theSenator from Indiana yield to the Sen-ator from Michigan?

Mr. BAYH. If I have time. My owntime is running very short. I yield tothe Senator from Michigan.

Mr. HART. I wish simply to expressa concern that with the remarks of theSenator from Maryland, I now enter-tain. I confess, as a member of theJudiciary Committee, I recall the discus-sion, but this point never occurred to meuntil tonight. The Senator speaks ofthe safeguard by reason of the fact that

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February 19, 1965 CONGRESSIONAL RECORD -SENATE

a majority of the President's Cabinet, ontheir honor, must take their position.A Cabinet appointed by whom? Do we

do anything to safeguard the situationwhen the President is disabled and theVice President acts, and then fires theCabinet, and then puts his own Cabinetin? How do we respond to that prob-lem?

Mr. BAYH. Mr. President, this isanother problem, if the Senator fromMichigan cares to discuss it. It is a goodquestion. We have thought about it.We are dealing with this one amendment.May we dispose of it, and then discussanother question?

Mr. HART. Reluctantly, I have in-dicated that there are unanswered ques-tions. Perhaps the night is not goingto be long enough.

Mr. BAYH. Mr. President, a momentago, hoping we could accomplish whatwe wanted to accomplish, I said I waswilling to accept the Senator's amend-ment. I acted hastily.

I feel wisdom requires us to proceedon the measure presented by the commit-tee, as the committee carefully studiedthe measure. I cannot see a more firmdetermination made by the Congressthan the determination which it makesunder the 12th amendment, in whichit is provided that in the event neithercandidate for the Presidency receives amajority of the electoral votes, Congressshall immediately decide the issue. Wesay, in the event that it cannot be de-termined whether the President is ableto carry on his duties, Congress shallimmediately decide the issue.

Frankly, this question has been dis-cussed in committee. It has been dis-cussed on the public platform. I do notthink we can come closer to resolvingthis question than by using the termi-nology in the joint resolution before us.

If the Senator from Rhode Islandwishes to proceed, wisdom would causeme, with great reluctance, to vote againsthis amendment. I think it is wrong. Ithink the wording in the joint resolutionis tight. The urgency is clear. The rec-ord is written. No Member of this bodydoes not share the feeling that this is amatter which the U.S. Senate should notdecide immediately.

Mr. BASS. Mr. President, will theSenator yield?

Mr. BAYH. Mr. President, is theSenator from Tennessee going to pose aquestion?

Mr. BASS. Yes.Mr. BAYH. I yield.Mr. BASS. Let us assume that the

Senator believes the word "immediately"is adequate in the section so far as dis-ability is concerned. Would the Senatorbe willing to accept one single word,"immediately" in section 2, so the Con-gress would act forthwith on the selec-tion of the new Vice President?

Mr. BAYH. No, I would not.Mr. BASS. Would the Senator ex-

plain what his objection would be?Mr. BAYH. I have explained it. I

will try again. In section 5 we are ques-tioning the disability of the President,the man who has his "finger on the but-ton." This issue needs to be decided im-mediately. But in section 2 we are try-

CXI-208

ing to decide who the Vice President shallbe.

The Senator from Tennessee has con-cocted a situation that he thinks mightforeseeably exist. I asked him to statea while ago the worst possible thing thatcould happen, and the worst possiblething is to leave it where it is now. Whytie up Congress to correct a system thathas worked for 176 years? We are notlooking for delays.

Mr. BASS. It has not worked for 176years. This amendment passed only 16years ago. The amendment providingthat the Speaker of the House of Repre-sentatives shall succeed to the Presi-dency was adopted only 16 years ago.

Mr. BAYH. That is a provision whichgoes into effect only when there is a dualtragedy, when both the President andVice President have dropped out of thepicture.

Mr. BASS. But not at the same time.The Vice President can die 3 years later.

Mr. BAYH. During the same term ofoffice.

Mr. BASS. The Senator does not ad-mit that a matter of time is involved,in that case, but he insists that Congressshall act without delaying tactics in theother matter. I see absolutely nothingwrong in providing that Congress shallact upon the nomination without delay.If there is anything wrong in that, I donot see where it is. I do not see anythingwrong in providing that the Congressshall act with dispatch on the recom-mendation of the President, belongingto one party, when the Congress may op-pose the recommendation because it isof the opposite party. All the amend-ment does is add one word-"imme-diately."

Mr. BAYH. No, that is not all thereis to it. The Senator wants section 2to read as the Senator from Rhode Is-land wants section 5 to read.

The PRESIDING OFFICER. All thetime of the Senator from Indiana hasexpired.

Mr. BAYH. Mr. President, I yield 2minutes on the bill to the Senator fromNorth Carolina [Mr. ERVIN].

Mr. ERVIN. Mr. President, I wish toreply to the Senator from Tennessee.Section 2 of the resolution does not dealwith a vacancy in the office of the Presi-dent; it deals only with a vacancy in theoffice of the Vice President:

Whenever there is a vacancy in the officeof the Vice President, the President shallnominate a Vice President who shall takeoffice upon confirmation by a majority voteof both Houses of Congress.

There is a President involved in thelanguage which the Senator from RhodeIsland wishes to amend. The Senatorfrom Tennessee wants to amend the pro-vision relating to the nomination of theVice President. He says he is afraid that,when the Vice President's office is va-cant, Members of the House who areanxious to get their Speaker in the Presi-dency will "sit still" on the nominationuntil the President dies.

God help this Nation if we ever get aHouse of Representatives, or a Senate,which will wait for a President to die sosomeone whom they love more than theircountry will succeed to the Presidency.

That does not apply to this section.It is based on the idea that either theHouse or the Senate, when there is avacancy in the Vice-Presidency, is goingto pray for the President to die so some-body they love more than they love theircountry will succeed to the Presidency.

The PRESIDING OFFICER. The timeof the Senator has expired.

Mr. BASS. Mr. President, I have anamendment at the desk. I offer theamendment.

Mr. BAYH. Mr. President, a point ofparliamentary inquiry.

The PRESIDING OFFICER. TheSenator will state his point of parlia-mentary inquiry.

Mr. BAYH. There is an amendmentpending, which has been thoroughly de-bated, by the Senator from Rhode Is-land. I wish to inquire as to what dis-position we can make of that.

The PRESIDING OFFICER. TheSenator from Tennessee has offered anamendment to the amendment offered bythe Senator from Rhode Island.

Mr. BAYH. Mr. President, may Iyield myself 30 seconds to ask a questionof the Senator from Tennessee? Becauseof the complexity of the issue, will theSenator from Tennessee permit us to getone question voted on, and then he canoffer his amendment, or as many amend-ments as he wants to?

Mr. BASS. I am going to resolve thequestion by offering a substitute amend-ment.

Mr. BAYH. Very well.The PRESIDING OFFICER (Mr. MON-

TOYA in the chair). The clerk will re-port the amendment.

The LEGISLATIVE CLERK. In lieu of thelanguage on page 2, line 16, as offeredby the Senator from Rhode Island [Mr.PASTORE], insert the word "immediately."

Mr. BASS. Mr. President--The PRESIDING OFFICER. The

Chair recognizes the Senator from Ten-nessee.

Mr. BASS. Mr. President, the onlychange in the joint resolution would beone word. Only one word would be addedto the joint resolution. If the Senatorfrom Indiana will check section 2, onlyone word, the word "immediately," whichis the word he used in his own section-in section 5-would be added to section2. This would merely mean that if wehad a situation in which there was avacancy in the office of the Vice Presi-dent and the President submitted a nom-ination, Congress would be required toact with some dispatch. There would beno time limit, no given number of days,but we are using the same language asthe language in section 2, which the com-mittee itself wrote into section 5.

This would mean that Congress wouldhave to act with some dispatch.

The only thing it does is add one wordto the resolution, which means that Con-gress would act immediately on therecommendation of the President to con-firm a new Vice President.

I can see nothing wrong with askingCongress to act immediately upon recom-mendation of the President, because ifwe were in a situation in which one partyin power would be stalling and delayingthe recommendations of the party in

CONGRESSIONAL RECORD- SENATE February 19, 1965power in the White House, we would bein the same situation in which we arenow.

Mr. HRUSKA. Mr. President, will theSenator from Indiana yield me 2minutes?

Mr. BAYH. Mr. President, I am gladto yield 2 minutes to the Senator fromNebraska.

The PRESIDING OFFICER. TheSenator from Nebraska is recognized for2 minutes.

Mr. HRUSKA. Mr. President, let memake a brief observation. We did con-sider the word "immediately" in section5 in that same context.

What does the word "immediately"mean?

Does it mean that there will be nohearings? Does it mean that there willbe no debate? Does it mean that therewill be no consideration of any kind todetermine what kind of person the nomi-nee is?

Those are questions which have al-ready been considered; and I earnestlyrecommend that the amendment bedefeated.

Mr. BAYH. Mr. President, I thank theSenator from Nebraska and the Senatorfrom North Carolina who have ade-quately expressed my views. I have triedearlier to do so. I suggest that the Sen-ate now vote.

Mr. BASS. Mr. President, I yield backthe remainder of my time. I am readyto vote.

The PRESIDING OFFICER. Thequestion is on agreeing to the substituteamendment of the Senator from Tennes-see [Mr. BASS].

The amendment in the nature of asubstitute was rejected.

The PRESIDING OFFICER. Thequestion is on agreeing to the amend-ment of the Senator from Rhode Island.

Mr. HOLLAND. Mr. President, I askthat the amendment be read.

The PRESIDING OFFICER. Theclerk will state the amendment.

The LEGISLATIVE CLERK. On page 2,line 16, and on page 3, line 24, after theword "issue," insert the following: "andno other business shall be transacted un-til such issue is decided."

The PRESIDING OFFICER. Thequestion is on agreeing to the amend-ment of the Senator from Rhode Island.

The amendment was rejected.The PRESIDING OFFICER. The

joint resolution is open to furtheramendment.

Mr. BAYH. Mr. President--The PRESIDING OFFICER. If there

are no further amendments, the ques-tionis on the engrossment of the amend-ments and the third reading of the jointresolution.

The amendments were ordered to beengrossed, and the joint resolution to beread a third time;

The joint resolution was read the thirdtime.

Mr. HART. Mr. President--The PRESIDING OFFICER. Who

yields time to the Senator from Mich-igan?

Mr. BAYH. Mr. President-----The PRESIDING OFFICER. The

-Chair recognizes the Senator from In-diana

Mr. BAYH. I yield myself such timeas I may require from the time on thebill.

The PRESIDING OFFICER. TheSenator from Indiana is recognized.

Mr. BAYH. I wish to explain andclarify something which has beenbrought to my attention by the Senatorfrom New York, which has been dis-cussed at some length previously withthe Senator from Michigan and theSenator from Rhode Island.

Let the RECORD show that as the Sen-ator in charge of the bill, I am fullyaware of the complexity of the termswith which we are dealing, and feel thatthe word "inability" and the word "un-able," as used in sections 4 and 5 ofthis article, which refer to an impair-ment of the President's faculties, meanthat he is unable either to make or com-municate his decisions as to his owncompetency to execute the powers andduties of his office. I should like for theRECORD to include that as my definitionof the words "inability" and "unable."

Mr. PASTORE. Mr. President, willthe Senator from Indiana yield at thatpoint?

Mr. BAYH. I yield.Mr. PASTORE. The statement was

made by the Senator from Indiana, onpage 20 of the hearings:

Let me intervene momentarily. I am cer-tain the Senator from Nebraska remembersthat the record shows that the intention ofthis legislation is to deal with any type ofinability, whether it is from traveling fromone nation to another, a breakdown of com-munications, capture by the enemy, or any-thing that is imaginable. The inability toperform the powers and duties of the office,for any reason is inability under the termsthat we are discussing.

In other words, what the Senator fromIndiana has just stated is a clarificationof that statement?

Mr. BAYH. The Senator is correct.Mr. MANSFIELD. Also an indication

of the intention of the Senate in consid-eration of the joint resolution.

Mr. BAYH. Either unable to make orcommunicate his decisions as to his owncompetency to execute the powers andduties of his office.

Mr. HOLLAND. Mr. President, willthe Senator from Indiana yield for aquestion?

Mr. BAYH. I yield.Mr. HOLLAND. I am in thorough

accord with what is intended by the pro-posed constitutional amendment. Thereis one thing about the debate which hasdisturbed me. The proposed amend-ment does not specifically replace or spe-cifically amend any part of the presentConstitution. It does by implication, itseems to me, amend certain portions ofarticle II, section 1, clause 5.

I have been disturbed by what seems tobe the assumption by some Senators thatthe present statute providing for the suc-cession to the Presidency would still be inforce.

Looking at these two matters hurried-ly, that is the present provision of theConstitution. What is proposed wouldbe a new section of the Constitution, andwould only by implication change thepresent provision. It would seem to methat that part of the present Constitu-

tion which allows the Congress by statuteto declare what officer shall then act asPresident in the case of the removaldeath, resignation, or inability both ofthe President and the Vice President,could apply only in two cases.

One would be a situation in which thePresident and Vice President were bothkilled in a common disaster. The secondwould be where the death of one shouldcome so quickly following the death ofanother that there would have been notime permitted for the functioning ofCongress under the proposed amend.ment, if it should become a part of theConstitution.

I am asking the Senator in charge ofthe joint resolution if that is also his un-derstanding as to the only fields in whichCongress would be left with statutoryauthority to provide for the succession.

Mr. BAYH. The Senator is correct;that is the way I would interpret it.

Mr. HOLLAND. The proposed amend-ment, if it became a part of the Consti-tution, would reduce the present powerof Congress to the two situations whichI have outlined in my question.

Mr. BAYH. As the Senator fromFlorida well knows, there is a consider-able amount of debate as to whetherCongress, has power to legislate by stat-ute in this field at the present time.The original succession statute waspassed in 1792; and the Congress whichpassed that statute contained severalmembers of the Constitutional Conven-tion. Their interpretation of article II,section 1, should be considered in lightof the succession statute which theypassed, which dealt only with succession.The law would apply only when therewere two deaths, as the Senator fromFlorida [Mr. HOLLAND] has described.

In other words, they must surely haveinterpreted clause 5, to which the Sena-tor refers, reading "Congress may by lawprovide for the case of the removal,death, resignation, or inability both ofthe President and of the Vice President,"to mean that that was a limitation onthe Congress and that both of those con-tingencies had to come to pass before itcould enact legislation.

Mr. HOLLAND. But, if I may restatemy question, in the event the proposedamendment should be adopted and be-come a part of the Constitution, wouldit not confine the statutory authority ofCongress to the two cases which I haveoutlined?

Mr. BAYH. Yes. This does not alterit. The Senator is correct.

Mr. HOLLAND. I beg the Senator'spardon.

Mr. BAYH. The Senator is correct.Mr. HOLLAND. I thank the Senator.The PRESIDING OFFICER. Does

the Senator yield back his time?Mr. HART. Mr. President, may I ask

a few questions, which may help all ofus in understanding this subject?

Mr. BAYH. I yield.Mr. HART. The Senator has just

stated a definition of inability, dealingwith the impairment of the President soas not to be able to make or communicatea decision as to his own competency.Is it clear that this means far more thandisagreement with respect to a judg-ment he may make, a decision he may

3282

February 19, 1965

make with respect to incapacity and in-ability, or must it not be based upon ajudgment that is very far reaching?

Mr. BAYH. The Senator from In-

diana agrees with the Senator fromMichigan that we are not dealing withan unpopular decision that must be madein time of trial and which might ren-der the President unpopular. We aretalking about a President who is unableto perform the powers and duties of

his office. -Mr. HART. This may have been clar-

ified in the report, and I plead guiltyto not having read it very carefully.

With reference to the heads of theexecutive departments, is it clear thatwe are talking about those whom we re-gard as comprising the Cabinet, as re-ferred to in 5 U.S.C. 1 and 2?

Mr. BAYH. The Senator is correct.I ask unanimous consent that there

may be included in the RECORD at thispoint, to further describe the contentsof 5 U.S.C. 2, a report that was given tothe junior Senator from Indiana by theLibrary of Congress, which sets this mat-ter out specifically.

Mr. HART. That would be helpful.There being no objection, the report

was ordered to be printed in the REC-ORD, as follows:

THE LIBRARY OF CONGRESS,LEGISLATIVE REFERENCE SERVICE,

Washington, D.C., February 18, 1965.To: Hon. BIRCH BAYH, Chairman, Senate

Subcommittee on Constitutional Amend-ments.

From: American Law Division.Subject: Executive departments.

Reference is made to your inquiry of Feb-ruary 17, 1965, requesting, among otherthings, some precedents regarding definitionof "executive department."

As we informed you during our telephoneconversation of above date, the phrase isdefined in 5 U.S.C. 2 which provides: "Theword 'department' when used alone in thischapter, and chapters 2-11 of this title,means one of the executive departmentsenumerated in section 1 of this title."

Section 1 referred to above reads as follows:"The provisions of this title shall apply to

the following executive departments:"First, the Department of State."Second, the Department of Defense."Third, the Department of the Treasury."Fourth, the Department of Justice."Fifth, the Post Office Department."Sixth, the Department of the Interior."Seventh, the Department of Agriculture."Eighth, the Department of Commerce."Ninth, the Department of Labor.'Tenth, the Department of Health, Educa-

tion, and Welfare."The phrase also makes an appearance in

the Constitution. Article 2, section 2, clause1 reads, in relevant part, as follows: "He[President] may require the opinion, in writ-ing, of the principal officer in each of theexecutive departments, upon any subject re-lating to the duties of their respectiveofices."

No relevant annotations appear to theforegoing section.

In Brooks v. United States, 83 P. Supp. 68(1939) an action brought by an enlisted manin the U.S. Navy to recover reenlistment al-lowances-the District Court for the EasternDistrict of New York examined petitioner'sstatus for purposes of determining whetherit was without jurisdiction:under the TuckerAct, 28 U.S.C. § 41 (20) (1939). The courtstated that the expression "heads of depart-ments" comprehended the members of the

CONGRESSIONAL RECORD - SENATEPresident's Cabinet, and did not include amere bureau head:

"Admittedly, the plaintiff was not ap-pointed by the President or by a court oflaw and it remains only to consider whetherhe was appointed by a head of a department.A long line of cases establishes that the term'Head of a Department' as used in this clauseof the Constitution means one of the mem-bers of the President's Cabinet. It does notinclude a mere bureau head. United Statesv. Germaine, 99 U.S. 508, 25 L. Ed. 482; Bur-nap v. United States, 252 U.S. 512, 40 S. Ct.374, 64 L. Ed. 692; Steele v. United States No.2, 267 U.S. 505, 45 S. Ct. 417, 69 L. Ed. 761.Thus in Morrison v. United States, 40 F. 2d286, D.C.S.D.N.Y., a petty officer not ap-pointed by the President or a cabinet officerwas held not to be an officer of the UnitedStates and therefore capable of suing in thiscourt, whereas in Foshay v. United States, 54F. 2d 668, D.C.S.D.N.Y., a clerk appointedby the Postmaster General, the head of anexecutive department, was held to be anofficer of the United States and incapable ofsuing for pay in this court. Oswald v. UnitedStates, 9 Cir., 96 F. 2d 10, similarly held acourt reporter, appointed by the court, undera disability to sue for salary in the districtcourt under the provisions of the Tucker Act.Numerous other cases such as Scully v. Unit-ed States, 193 F. 185, 187, C.C.D. Nev., havedefined 'officer of the United States' in termsof the constitutional meaning of the records.See, also, United States v. Van Wert, D.C.Iowa, 195 F. 974; United States v. Brent, D.C.Iowa, 195 F. 980; McGrath v. United States,2 Cir., 275 F. 294."

The holding was reaffirmed in Surowitz v.United States, 80 F. Supp. 716, 718-719 (1948)wherein the court declared:

"This does not mean that the courts havealways applied one test of an officer under thecriminal law and another under the civil law.The difference resides in the application.The test itself has been fairly uniform;only he is an officer who is an officer in theconstitutional sense, that is (so far as is hereinvolved), a person appointed under author-ity of law by the head of a department to apost created by law. The head of a depart-ment has been authoritatively defined tomean a member of the President's Cabinet.United States v. Smith, supra; United Statesv. Germaine, supra; see Burnap v. UnitedStates, 190, 252 U.S. 512, 515, 40 S. Ct. 374, 64L. Ed. 692."

In United States v. Germaine, 99 U.S. 508(1879), the Supreme Court was called uponto determine whether a surgeon appointed bythe Commissioner of Pensions was an officerand therefore amenable to prosecution undera criminal statute punishing extortion byan "officer of the United States." The Courtheld that defendant was not an officer andthe Commissioner of Pensions was not thehead of a department within the meaning ofthe Constitution. Portions of the opiniondealing with the later consideration follow:

"As the defendant here was not appointedby the President or by a court of law, it re-mains to inquire if the Commissioner of Pen-sions, by whom he was appointed, is the headof a department, within the meaning of theConstitution, as is argued by the counsel forplaintiffs.

"The instrument was intended to inaugu-rate a new system of government, and thedepartments to which it referred were notthen in existence. The clause we have citedis to be found in the article relating to theexecutive, and the word as there used hasreference to the subdivision of the power ofthe executive into departments, for the moreconvenient exercise of that power. One ofthe definitions of the word given by Worces-ter is, 'a part or division of the executivegovernment, as the Department of State, orof the Treasury.' Congress recognized thisin the act creating these subdivisions of the

3283executive branch by giving to each of themthe name of a department. Here we havethe Secretary of State, who is by law the headof the Department of State, the Departmentsof War, Interior, Treasury, and so forth. Andby one of the latest of these statutes reorga-nizing the Attorney General's office and plac-ing it on the basis of the others, it is calledthe Department of Justice. The associationof the words 'heads of departments' with thePresident and the courts of law strongly im-plies that something different is meant fromthe inferior commissioners and bureau of-ficers, who are themselves the mere aids andsubordinates of the heads of the depart-ments. Such, also, has been the practice, forit is very well understood that the appoint-ments of the thousands of clerks in theDepartments of the Treasury, Interior, andthe others, are made by the heads of thosedepartments, and not by the heads of thebureaus in those departments.

"So in this same section of the Constitu-tion it is said that the President may requirethe opinion in writing of the principal officerin each of the executive departments, relat-ing to the duties of their respective offices.

"The word 'department,' in both these in-stances, clearly means the same thing, andthe principal officer in the one case is theequivalent of the head of department in theother.

"While it has been the custom of the Presi-dent to require these opinions from the Sec-retaries of State, the Treasury, of War, Navy,and so forth, and his consultation with themas members of his Cabinet has been habitual,we are not aware of any instance in whichsuch written opinion has been officially re-quired of the head of any of the bureaus, orof any commissioner or auditor in these de-partments."

In United States v. Hartwell, 73 U.S. [6Wall.] 393 (1868), the Supreme Court heldthat one appointed under an act of Congressauthorizing an assistant treasurer, with theapprobation of the Secretary of the Treasury,to appoint a specified number of clerks, isappointed by the head of a department with-in the meaning of article II, § 2. Germaine,supra, the Court held that it was being con-sistent with the Hartwell since "it is clearlystated and relied on that Hartwell's appoint-ment was approved by the Assistant Secre-tary of the Treasury as acting head of thatDepartment, and he was therefore, an officerof the United States."

In Price v. Abbott, 17 F. 506 (1883) theCourt held that appointments made by theComptroller of the Currency, or receivers ofnational banks, as provided by acts of Con-gress, are to be presumed to be made withthe concurrence or approval of the Secretaryof the Treasury, and are made by the headof the department within the meaning ofthe Constitution.

In Frelinghuysen v. Baldwin, 12 F. 395(1882) it was held that a receiver of anational bank appointed by the Comptrollerof the Currency, who was the chief officerof a bureau of the Treasury Departmentcharged with the execution of all laws passedby Congress relating to the regulation andthe ssue of a national currency securedby U.S. bonds, was appointed by thehead of a department within the meaning ofthe Constitution, as the Comptroller per-formed this, as well as all other duties, underthe general direction of the Secretary of theTreasury.

We are sending herewith duplicate copiesof the material delivered to you last evening,material requested this morning, and loancopies of the United States Code. See inparticular 5 U.S.C. 1, 2, 133z-3, 133z-5; theExecutive order (No. 10495) following 5U.S.C. 6.

RAYMOND J. CELADA,Legislative Attorney.

CONGRESSIONAL RECORD -SENATE February 19, 1965Mr. HART. Mr. President, we are

talking now, not about the usual situa-tion, but one which we hope will neveroccur. The language is clear, but I amafraid that there is no conversation, interms of an exchange, even with themanager of the bill, to show that we canavoid what all of us want to avoid; name-ly, a usurping Vice President who con-solidates his position by firing theCabinet.

Is there any way in which we can, inthis exchange on the floor, help to avoidthat situation, or make very clear thatthis is not the grant that we make?

Mr. BAYH. The Senator from Mich-igan knows full well the advice and con-sent authority of the Senate so far as anyCabinet members are concerned.

Mr. HART. Yes; I do.Mr. BAYH. He also knows of the two-

thirds provision, which would be requiredto sustain the position of the Vice Presi-dent and his new Cabinet if he were totake this most unfortunate step.

The committee in its hearings dis-cussed this subject at some length, be-cause we must tread a very narrow line,on one side of which we do not want ausurping Vice President to fire theCabinet, while on the other side we donot want a Vice President who is actingin good cause, say, for example, in a 3-year term of office, being unable to re-appoint Cabinet members who may havedied or resigned.

Mr. HART. What about interim ap-pointments to the Cabinet? Is there notsome place short of tying the hands ofa 3-year incumbent Vice President asPresident and leaving wide open thispossibility? Is it not our responsibilityat least to establish the check that aVice President who becomes Presidenttemporarily at least should not be ableto appoint a Cabinet majority throughinterim appointments?

Mr. BAYH. I reiterate what I said be-fore. Before the position of the VicePresident could be sustained even in aninterim position, the President wouldhave the opportunity, under the provi-sion of section 5, to take this to Congress.Unless the Vice President could be sus-tained by a two-thirds vote, he would be"out."

Mr. HART. I believe I have voiced theapprehension, which perhaps now morebroadly is established than when we werediscussing the subject in committee. Ibelieve it is essentially our responsibilityin this situation, where we talk aboutCabinet appointees over whom we havesome authority to suggest against ain n-terim appointees. Ought we not at leastto go that far?

Mr. HRUSKA. I yield myself 3 min-utes.

That question was considered in com-mittee. We discussed the possibility ofthe Vice President dispensing with themembers of the Cabinet and appointinga Cabinet of his own choosing. Does notthe real protection against that kind ofsituation lie in the good judgment ofCongress? If there were an overreach-ing by him which would be that trans-parent, the good judgment of the Houseand of the Senate would assert itself.Congress would say, "We will have no

part with that kind of usurpation andgrasping for power."

On the contrary, if by a two-thirdsvote Congress agreed with him, thatwould be the democratic process in ac-tion. That is the fashion in which itshould be done. The real, ultimate pro-tection is in the good judgment of theMembers of Congress, by a two-thirdsmajority.

Mr. HART. I should like to make onefurther comment on that.

The PRESIDING OFFICER. Does theSenator from Indiana yield to the Sen-ator from Michigan?

Mr. BAYH. I yield.Mr. HART. Is it the understanding

of the Senate, in taking this action, thatthe Under Secretary, in the event of avacancy in the office of Secretary, shallbe empowered as would the Secretaryhimself, in participating in the decisionwith respect to ability or disability?

Mr. BAYH. It is the opinion of thejunior Senator from Indiana that it isnot.

Mr. HART. This would reduce it byas many Under Secretaries as may beinvolved in the situation with respectto those who would participate in theCabinet decision. Is that correct?

Mr. BAYH. I ask the Senator fromMichigan-and I know he is asking pen-etrating questions which are very valu-able in making this record clear, and Ialso know that a scintilla of doubt willremain-but I ask the Senator to look atthe history, in which the role of the VicePresident has been quite to the contrary.

He has been reluctant to move, al-though urged to do so, particularly inthe case of the Garfield situation, whenall of his Cabinet urged him. He is ahuman being, with a conscience and aheart and a soul, and, as the Senatorfrom North Carolina has said, his politi-cal future would be ruined if he at-tempted to usurp the office.

Mr. MANSFIELD. Mr. President, Iask for the yeas and nays on the pas-sage of the joint resolution.

The yeas and nays were ordered.Mr. LAUSCHE. Mr. President, will

the Senator yield?Mr. BAYH. I yield.Mr. LAUSCHE. Am I correct in my

understanding that there are two situ-ations in which there would be a changein the Executive Office of the Nation:First, whenever the President on his owntransmits to the Speaker of the Houseand the President of the Senate his writ-ten declaration that he is unable to dis-charge his office. Is that correct?

Mr. BAYH. That is one.Mr. LAUSCHE. The second is when-

ever the Vice President and a majorityof the principal officers of the executivedepartments transmit to the President ofthe Senate and the Speaker of the Houseof Representatives their written declara-tion that the President is unable to dis-charge his duties.

Mr. BAYH. The Senator is correct.Mr. LAUSCHE. That must be con-

firmed by a two-thirds vote in the Sen-ate?

Mr. BAYH. The President would bringthe issue and Congress would decide it.The President would have to say "Youare wrong."

Mr. LAUSCHE. I have a final question, and I ask it to elucidate what theSenator from Michigan has been ask-ing.

In an instance in which the incapacityof the President would be announced bythe Cabinet and the Vice President, is itor is it not a fact that the Presidentwould continue in office with full powerto veto until such time as the Cabinet,the Vice President, and a two-thirds voteof the Congress had established that thePresident was incapable of performinghis job?

Mr. BAYH. No, that is not correct.That question got us into the very touchyquestion as to who should act during thequestionable period, the President or theVice President. It was the judgment ofthe committee-and I concur in thatjudgment-that whenever the Vice Pres-ident and a majority of the Cabinet,which would have been appointed by thePresident himself, should become suffi-ciently concerned that, in the glare ofthe publicity which would be attendantupon something of the nature that weare discussing, they would make the dec-laration that there was sufficient doubt,the Vice President would assume thepowers and duties of the office while theissue was being tried.

Another reason for the proposal wasthat we desired to try to prevent a back-and-forth ping-pong sort of situation inwhich the Vice President and the Cabinetwould make a declaration. The Presi-dent might be out and the Vice Presidentwould be in. Then the issue would go toCongress and Congress might make adeclaration that the Vice Presidentshould be out and the President in. Un-der the proposal there would be fewertransfers of power and more continuity,which I feel should be basic.

Mr. LAUSCHE. I should like to askanother question. Suppose that the VicePresident should declare that the Presi-dent is incapacitated, a minority of themembers of the Cabinet should say thathe is incapacitated, and a majorityshould say that he is not. Under thejoint resolution Congress would proceedto establish its views and would eitherconfirm or reject the findings of the Cab-inet and the Vice President. Would thePresident whose incapacity had beencharged have the right to a veto?

Mr. BAYH. Yes, the other body, asCongress may by law prescribe.

Mr. LAUSCHE. That is, if and whenCongress should feel that it should stepin under the language which providesthat such other body as Congress by lawmay provide, the Vice President wouldnot act, but the President would continueto act, although he had been charged bythe Congress and charged by the VicePresident with being incapacitated.

Mr. BAYH. That is correct; and thenumber of votes prescribed would over-ride the veto, or the same number thatwould support the Vice President.

Mr.: ALLOTT. Mr. President, I amfully aware of the lateness of the hour,but I do not believe the questions askedby the distinguished Senator from Ohioincluded one that I would like to ask.

Section 4 contains a provision thatthe Vice President shall assume the

3284

February 19, 1965 CONGRESSIONAL RECORD - SENATE

powers and duties of the office as Actingpresident under certain conditions.

Section 5 states:Whenever the President transmits to the

president of the Senate and the Speaker ofthe House of Representatives his writtendeclaration that no inability exists, he shallresume the powers and duties of his officeunless the Vice President, with the writtenconcurrence of a majority of the principalofficers of the executive department or suchother body as Congress may by. law provide,transmits within 2 days to the Congress hiswritten declaration that the President isunable to discharge the powers and dutiesof his office.

There would be a legal actingpresident.

Mr. BAYH. That is correct.Mr. ALLOTT. The President would

then send to Congress his written decla-ration. Who would be President dur-ing the 7 days?

Mr. BAYH. The Vice President, theActing President. I thank the Senatorfrom Nebraska for his suggestion. Itmakes a considerable difference. As Iexplained, we wrote in that languagefor two basic reasons. First, wheneverthe Vice President and a majority ofthe Cabinet of the President who isabout to be deposed feel that there issufficient cause that, in the great heatattendant publicitywise, they wouldmake such a declaration, there would be aserious enough doubt about the mentalcapacity-and usually it would be themental capacity of the President-thatthe decision would be made, the VicePresident would assume the powers andduties as Acting President while the de-cision was being made by Congress.

Such a provision would cut down thenumber of times the power of the Pres-idency would change. We desire to keepit to a minimum. The President wouldleave the office and the Vice Presidentwould take over, and then the Vice Pres-ident would leave and the Presidentmight resume his office, and that wouldgo on down the line.

Mr. ALLOTT. To get to the questionin another way, so the issue will be clear,if a Vice President had assumed theduties of acting President, and the elect-ed President then decided that he wishedto state that there is no inability anylonger, it would be 7 days before he couldpossibly resume the office of President.

Mr. BAYH. That is correct.Mr. ALLOTT. There is no question

about that. That is the intent.Mr. BAYH. That is the intent. I

should like to clarify the record on onepoint. The question which the Senatorfrom Colorado has posed about requiringa mandatory 7 days would only apply ifthere should be a contest under section 5.The provision would not prevent the VicePresident and the President agreeing toa lesser period of time.

Mr. HRUSKA. Mr. President, agree-ments devised by the President and hisVice President in past administrationsto cope with an inability crisis are notsatisfactory solutions. Recent historyhas also made us very much aware of theneed for filling the office of Vice Presi-dent when a vacancy arises.

It is abundantly clear that, rather thancontinue these informal agreements, the

only sound approach is the adoption of aconstitutional amendment.

The hearings, which have been held onthis important subject in recent yearsand in which this Senator has had theopportunity to participate, have led meto prefer a different approach than thepresent one. As in other legislative mat-ters, the finished product requires the re-finement of individual preferences. Inthe spirit of this simple reality, I shallsupport the proposed amendment. It ismy earnest hope that the Congress andthe State legislatures will approve andratify it promptly.

There are two major reasons for myacceptance of the proposed amendment.

The first is the urgent need for a solu-tion. Differences of opinion in Congresshave deprived us of a solution for far toolong. It is time that these constitutionalshortcomings be met.

Secondly, the proposed language ap-proaches the product which would haveresulted under the proposal which I hadurged, so that this amendment is ac-ceptable as proposed and amended.

The refinements that have been madeon the original language of Senate JointResolution 1 will clarify the detailed pro-cedure to be followed in a case of dis-ability.

The role of Congress is narrow. It isas an appeal open to the President fromthe decision of the Vice President andthe members of the Cabinet. It will bebrought into the matter only in thoselimited circumstances where the VicePresident, with a majority of the prin-cipal officers of the executive depart-ments, and the President disagree on thequestion of restored ability. It is im-portant to note that Congress will nothave the power to initiate a challenge ofthe President's ability.

The procedure by which Congressshall act is properly left to later deter-mination within rules of each branchthereof. A point of possible conflict isresolved in the understanding that Con-gress shall act as separate bodies andwithin their respective rules.

The language that "Congress shall im-mediately proceed to decide the issue"leaves to Congress the determination ofwhat, in light of the circumstances thenexisting, must be examined in decidingthe issue. Thus, the matter will be ex-amined on the evidence available. It isdesirable that the matter be examinedwith a sympathetic eye toward the Presi-dent who, after all, is the choice of theelectorate.

It is apparent that Senate Joint Reso-lution 1 does have aspects which alleviatethe dangers attendant to a crisis in presi-dential inability. Nevertheless, it is feltby this member of the committee thatcaution and restraint will be demandedshould this inability measure be calledinto application.

A time does arrive, however, when wemust fill the vacuum. The points whichI have emphasized and previously in-sisted upon are important; but havinga solution at this point is more than im-portant, it is urgent. For this reason, Isupport Senate Joint Resolution 1 andurge its passage. I hope that it will begiven expeditious approval by the other

body and early ratification by the re-quired number of States.

Mr. BAYH. Mr. President, I yieldback the remainder of my time.

Mr. HRUSKA. I yield back the re-mainder of my time.

The PRESIDING OFFICER. All timehaving been yielded back, the question is,Shall the joint resolution pass?

On this question the yeas and nayshave been ordered, and the clerk will callthe roll.

The legislative clerk called the roll.Mr. LONG of Louisiana. I announce

that the Senator from New Mexico [Mr.ANDERSON], the Senator from Nevada[Mr. BIBLE], the Senator from Penn-sylvania [Mr. CLARK], the Senator fromArkansas [Mr. FULBRIGHT], the Senatorfrom Tennessee [Mr. GoRE], the Senatorfrom Alaska [Mr. GRUENING], the Sena-tor from Utah [Mr. Moss], the Senatorfrom Oregon [Mrs. NEUBERGER], the Sen-ator from Wisconsin [Mr. PROXMIRE],the Senator from Florida [Mr. SMATH-ERs], and the Senator from New Jersey[Mr. WILLIAMS] are absent on officialbusiness.

I also announce that the Senator fromGeorgia [Mr. RUSSELL] is absent becauseof illness.

I further announce that the Senatorfrom South Carolina [Mr. JOHNsToN],the Senator from North Carolina [Mr.JORDAN], the Senator from Massachu-setts [Mr. KENNEDY], the Senator fromMinnesota [Mr. MONDALE], the Senatorfrom Maine [Mr. MUSKIE], the Senatorfrom Wisconsin [Mr. NELSON], the Sen-ator from Connecticut [Mr. RIBICOFF],and the Senator from Missouri [Mr.SYMINGTON] are necessarily absent.

I further announce that, if present andvoting, the Senator from New Mexico[Mr. ANDERSON], the Senator from Ne-vada [Mr. BIBLE], the Senator fromPennsylvania [Mr. CLARK], the Senatorfrom Arkansas [Mr. FULBRIGHT], theSenator from Tennessee [Mr. GORE], theSenator from Alaska [Mr. GRUENING],the Senator from South Carolina [Mr.JOHNSTON], the Senator from NorthCarolina [Mr. JORDAN], the Senator fromMassachusetts [Mr. KENNEDY], the Sen-ator from Minnesota [Mr. MONDALE], theSenator from Utah [Mr. Moss], the Sen-ator from Maine [Mr. MUSKIE], the Sen-ator from Wisconsin [Mr. NELSON], theSenator from Oregon [Mrs. NEUBERGER],the Senator from Wisconsin [Mr. PROX-MIRE], the Senator from Connecticut[Mr. RIBICOFF], the Senator from Geor-gia [Mr. RUSSELL], the Senator fromFlorida [Mr. SMATHERS], the Senatorfrom Missouri [Mr. SYMINGTON], and theSenator from New Jersey [Mr. Wr.-LIAMS] would each vote "yea."

Mr. DIRKSEN. I announce that theSenators from Kentucky [Mr. COOPERand Mr. MORTON], the Senator fromNew York [Mr. JAvrrs], the Senatorfrom Idaho [Mr. JORDAN] and the Sen-ator from Iowa [Mr. MILLER] are neces-sarily absent.

The Senator from California [Mr.KUCHEL] is absent on official business.

The Senator from Colorado [Mr.DOMINICK] and the Senator from Cali-fornia [Mr. MURPHY] are detained onofficial business.

3285

CONGRESSIONAL RECORD -- SENATEFebruary 19, 1965If present and voting, the Senator

from Kentucky [Mr. COOPER], the Sena-tor from Colorado [Mr. DOMINICK], theSenator from New York [Mr. JAVITS],the Senator from Idaho [Mr. JORDAN],the Senator from California [Mr.KUCHEL], the Senator from Iowa [Mr.MILLER], the Senator from Kentucky[Mr. MORTON] and the Senator fromCalifornia [Mr. MURPHY] would eachvote "yea."

The yeas and nays resulted-yeas 72,nays 0, as follows:

[No. 24 Leg.]

YEAS-72

AikenAllottBartlettBassBayhBennettBoggsBrewsterBurdickByrd, Va.Byrd, W. Va.CannonCarlsonCaseChurchCottonCurtisDirksenDoddDouglasEastlandEllenderErvinFannin

FongHarrisHartHartkeHaydenHickenlooperHillHollandHruskaInouyeJacksonKennedy, N.Y.LauscheLong, Mo.Long, La.MagnusonMansfieldMcCarthyMcClellanMcGeeMcGovernMcIntyreMcNamara -Metcalf

MonroneyMontoyaMorseMundtPastorePearsonPellProutyRandolphRobertsonSaltonstallScottSimpsonSmithSparkmanStennisTalmadgeThurmondTowerTydingsWilliams, Del.YarboroughYoung, N. Dak.Young, Ohio

NAYS-0

NOT VOTING-28Anderson Jordan, N.C. NelsonBible Jordan, Idaho NeubergerClark Kennedy, Mass. ProxmireCooper Kuchel RibicoffDominick Miller RussellFulbright Mondale SmathersGore Morton SymingtonGruening Moss Williams, N.J.Javits MurphyJohnston Muskie

The PRESIDING OFFICER (Mr. MoN-TOYA in the chair). Two-thirds of theSenators present having voted in the af-firmative, the joint resolution (S.J. Res.1) is passed.

Mr. BAYH. Mr. President, I movethat the Senate reconsider the vote bywhich the joint resolution was passed.

Mr. HRUSKA. I move to lay thatmotion on the table.

The motion to lay on the table wasagreed to.

Mr. MAGNUSON. Mr. President,earlier I had asked the Senator fromIndiana to yield for 10 seconds, but Idid not pursue my request because Iwanted to have the joint resolutionpassed promptly. But I believe it isapropos now, after all the discussiontoday, that the Senate should wish thePresident and Vice President good luckand good health.

FORMATION OF BUSINESS ADVIS-ORY COMMITIEE ON TRADE WITHEASTERN EUROPEMr. MAGNUSON. Mr. President, all

of us who view expanded trade as a sen-sitive tool for piercing the Iron Curtain,welcome President Johnson's formationof a business advisory committee ontrade with Eastern Europe, announced

yesterday. I am particularly pleasedthat this committee, in charting newpaths to increased peaceful trade withRussia and the other European bloccountries, will work in close cooperationwith our dynamic new Secretary of Com-merce, John T. Connor.

It is significant that the President an-nounced his action during the throbbingcrisis in Vietnam, for it should serve as ahealthy reminder to those who see East-West trade in unthinking, cold war terms,that our object in expanding trade is notsentimental but the hardheaded pursuitof our own economic and strategic self-interest.

Less than 3 weeks ago, I introduced inthe Senate, Senate Joint Resolution 36,to establish a high level permanent Coun-cil for Expanded Trade, composed ofleading private citizens from the busi-ness, labor, and academic communities toadvise the Congress and the President ona continuing basis of "the extent to whichand the methods by which trade betweenthe United States and countries withinthe Communist bloc can profitably beexpanded in furtherance of the nationalinterest."

In the past, business leaders and Gov-ernment officials have each tended to letthe other take the lead in urging inno-vations in our trade policies toward thebloc countries. As a result, businessmenin general have remained confused anduncertain of the guidelines of nationaltrade policy, while the Government hasbeen unable to grasp the commercialrealities involved in the pursuit of ex-panded trade with the East.

What should be a great national de-bate has too often been obscured bymyth and misconception. Before we willbe able to establish a rational exchangeof goods and services with the bloc coun-tries, we must establish a rational ma-chinery for the exchange of ideas, ex-perience, and fact between our own busi-ness and Government.

The President's committee representsan exceedingly important first step to-ward the establishment of such machin-ery. But the exploration of expandedtrade with the Communist bloc shouldnot be a one-shot affair. The inter-change of ideas on East-West trade be-tween business and Government must beplaced on a permanent basis so that thePresident and Congress might not onlybe informed of trade developments withthe East but so that business leaders, inturn, might be informed of Governmentpolicies on such trade.

The development and cultivation oftrade relationships is a continuing proc-ess which will undoubtedly take manyyears. Problems which now exist, andwhich may in the future arise, will requirecontinuing scrutiny and attention.

For these reasons, while I whole-heartedly endorse the President's forma-tion of his study committee, I believethat Congress has an obligation to placethe effort to expand East-West trade ona more permanent, institutionalizedbasis, and so I urge that Congress sup-port President Johnson's goal of an ac-tive East-United States trade policy byenacting Senate Joint Resolution 36.

AVAILABILITY OF FINE HARDWOODLOGS FOR VENEER

Mr. BAYH. Mr. President, last eve-ning, Senators HARTKE and JAVITS andI discussed the critical problem of ex-cessive cutting of black walnut logswhich will occur due to the removal ofan export control order by the Secretaryof Commerce.

In our discussions we suggested thatthe source of supply of replacementwoods was virtually nonexistent in theUnited States and was, in fact, in shortsupply worldwide.

To fully describe the critical propor-tions of our veneer quality log supply Iwould like to have inserted in the RECORDa speech by the Director of the ForestProducts Division of the Department ofCommerce, Mr. Thomas C. Mason, en-titled "World Availability of Fine Hard-wood Logs for Face Veneer." Thisspeech analyzes the total world supplyof walnut logs and other fine hardwoodsand emphasizes the dimensions of theshortage we face.

This speech by a respected Depart.ment of Commerce official again under-scores the folly of removing the exportquota and I commend it to my colleaguesattention.

There being no objection, the speechwas ordered to be printed in the RECORD,as follows:WORLD AAILA.sIITY OF FINE HARDWOOD LOGS

FOR FACE VENEER

(Speech by Thomas C. Mason, Director, For-est Products Division, BDSA, at the annualspring meeting of the Hardwood PlywoodInstitute luncheon, Mar. 5, 1964, Las Vegas,Nev.)

RLACK WALNUT

Coincidence of growing domestic and for-eign demands for American black walnutveneer logs has, since 1958, resulted in exces-sive drain on the resource.

As of the end of 1958, the resource was ableto provide about 18 million board feet ofveneer logs per year.

Domestic use Increased from about 12 mil-lion board feet in 1958 to 19/2 million in1962 and continued at a high level in 1963.

Exports increased from 21/4 million boardfeet in 1958 to 10/3 million in 1962, and wellover 14 million in 1963.

In 1962, domestic use and exports com-bined were nearly twice the indicated growthreported late in 1963 by the Forest Service.

For those of you who may be interested indetails, I have copies of two small charts.These compare annual growth and drain ofveneer-quality black walnut: In the one case,had 1960-63 trends of use been allowed tocontinue; in the other, the trends anticipatedas a result of the conservation program.

In 1963, estimated domestic consumptionplus exports were at an annual rate mate-rially exceeding twice the indicated growth.If this rate had been permitted to continue,it would have taken less than 10 years toexhaust all the growing capital of veneer-quality black walnut trees down to 15 inchesin diameter breast high. All the larger treesavailable for cutting, from which the high-quality veneer logs come, would have beenexhausted much sooner that that. Afterabout 10 years, the only supply of walnutveneer logs would have come from what isknown in forestry terminology as ingrowth in the veneer tree size class; inother words, trees which reach 15 inches indiameter breast high during the year. Theindicated volume of in-growth is less than

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