June 30, 1965 (2)

Mr. CELLER submitted the following conference report and statement on the joint resolution (S.J. Res. 1) proposing an amendment to the Constitution of the United States relating to succession to the Presidency and Vice-Presidency and to cases where the President is unable to discharge the powers and duties of his office.

CONFERENCE REPORT (REPORT No. 564)

The committee of conference on the dis­ · agreeing votes of the two Houses on the amendment of the House to the joint resolution (S.J. Res. 1) proposing an amendment to the Constitution of the United States relating to succession to the Presidency and Vi ce- Presidency and to cases where the President is unable to discharge the powers and duties of his office, having met, after full and free conference, have agreed to recommend and do recommend to their respective Houses as follows:

That the Senate recede from its disagreement to the amendment of the House and agree to the same with an amendment as follows: In lieu of the matter proposed to be inserted by the House amendment insert the following:

"That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"'ARTICLE-

" 'SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

"'SEc. 2. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

"'SEC. 3. Whenever the President transmits to the President pro tempore of the senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

" 'SEC. 4. Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. "'Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within fortyeight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.' "

And the House agree to the same.

EMANUEL CELLER,

BYRON G. ROGERS,

JAMES C. CORMAN,

WILLIAM M. McCuLLOCH,

RICHARD H. PoFF,

Managers on the Part of the House.

BmcH E. BAYH, Jr.,

JAMES 0. EASTLAND.

SAM J. ERVIN, Jr.,

EVERETT M. DIRKSEN,

ROMAN L. HRUSKA,

Managers on the Part of the Senate.

STATEMENT

The managers on the part of the House at the conference on the disagreeing votes of the two Houses on the amendment of the House to the bill (S.J. Res. 1) proposing an amendment to the Constitution of the United States relating to succession to the Presidency and Vice-Presidency and to cases where the President is unable to discharge the powers and duties of his office, submit the following statement in explanation of the effect of the action agreed upon by the conferees and recommended in the accompanying conference report:

The House passed House Joint Resolution 1 and then substituted the provisions it had adopted by striking out all after the enacting clause and inserting all of its provisions in Senate Joint Resolution 1. The Senate insisted upon its version and requested a conference; the House then agreed to the conference. The conference report recommends that the Senate recede from its disagreement to the House amendment and agree to the same with an amendment, the amendment being to insert in lieu of the matter inserted by the House amendment the matter agreed to by the conferees and that the House agree thereto.

In substance, the conference report contains substantially the language of the House amendment with a few exceptions.

Sections 1 and 2 of the proposed constitutional amendment were not in disagreement. However, in sections 3 and 4, the Senate provided that the transmittal of the notification of a President's inability be to the President of the Senate and the Speaker of the House of Representatives. The House version provided that the transmittal be to the President pro tempore of the Senate and the Speaker of the House of Representatives. The conference report provides that the transmittal be to the President pro tempore of the Senate and the Speaker of the House of Representatives.

In section 3, the Senate provided that after receipt of the President's written declaration of his inability that such powers and duties would then be discharged by the Vice President as Acting President. The House version provided the same provision except it added the clause "and until he transmits a written declaration to the contrary". The conference report adopts the House language with one minor change for purposes of clarification by adding the phrase "to them" , meaning the President pro tempore of the Senate and the Speaker of the House.

The first paragraph of section 4, outside of adopting the language of the House designating the recipient of the letter of transmittal be the President pro tempore of the Senate and the Speaker of the House of Representatives, minor change in language was made for purposes of clarification.

In the Senate version there was a specific section; namely, section 5, dealing with the procedure that when the President sent to the Congress his written declaration that he was no longer disabled he could resume the powers and duties of his office unless the Vice President and a majority of the principal officers of t;he executive departments, or such other body as the Congress might by law provide, transmit within 7 days to the designated officers of the Congress their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon, the Congress would immediately proceed to decide the issue. It further provided that if the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President would continue to discharge the same as Acting President; otherwise, the President would resume the powers and duties of his office.

The House version combined sections 4 and 5 into one section, now section 4. Under the House version, the Vice President had 2 days in which to decide whether or not to send a letter stating that he and a majority of the officers of the executive departments, or such other body as Congress may by law provide that · t the President is unable to discharge the powers and duties of his office. The conference report provides that the period of time for the transmittal of the letter must be within 4 days.

The Senate provision did not provide forthe convening of the Congress to decide this issue if it was not in session; the House provided that the Congress must convene forthis specific purpose of deciding the issue within 48 hours after the receipt of the written declaration that the President is still disabled. The conference report adopts the language of the House.

The Senate provision placed no time limitation on the Congress for determining whether or not the President was still disabled. The House version provided that determinat i on by the Congress must be made within 10 days after the receipt of the written declaration of the Vice President. and a majority of the princip a l officers of the executive departments, or such otherbody as Congress may by law provide . The conference report adopts the principle of limiting the period of time with i n which the Congress must determine the issue, and while the House original version was 10 days and the Senate version an unlimited period of time, the report requires a final determination within 21 days. The 21-day period, if the Congress is in session, runs from the date of receipt of the letter. It further provides that if the Congress is not in session. the 21-day period runs from the time that the Congress convenes.

A vote of less than two-thirds by either House would immediately authorize the President to assume the powers and duties of his office.

EMANUEL CELLER,

BYRON G. ROGERS,

JAMES C. CORMAN,

WILLIAM M. MCCULLOCH,

RICHARD H. POFF,

Managers on the Part of the House .

Mr. CELLER. Mr. Speaker, I ask unanimous consent for the immediate consideration of the conference report on the joint resolution (S.J. Res. 1) proposing an amendment to the Constitution of the United States relating to succession to the Presidency and VicePresidency and to cases where the President is unable to discharge the powers and duties of his office, and I ask unanimous consent that the statement of the managers on the part of the House be read in lieu of the report.

The Clerk read the title of the joint resolution.

The SPEAKER. Is there objection to the request of the gentleman from New York?

There was no objection.

The Clerk read the statement.

Mr. CELLER. Mr. Speaker, today we write on the tablets of history. We amend the Constitution, which Gladstone, speaking in 1898, hailed as the most wonderful work struck off at a. given time by the brain and purpose of The United States has two great symbols of her freedom and liberty. One is the Declaration of Independence and the other is the Constitution. The Declaration is the profession of faith, while the Constitution is its working instrument. It gives action to that faith.

There is no document in any country that can compare with our Constitution _ It is the touchstone of our prowess and progress as a nation. Most countries envy us our Constitution.

The Constitution has such elasticity that it remains vital throughout the decades, but it is not immutable. It is not written in stone on Mount SinaL

Associate Supreme Court Justice Oliver Wendell Holmes once said:

The Constitution is an experiment, as all life 1s a.n experiment. If new contingencies arise the Constitution must be made to fit them either by interpretation of fearless judges aware of historical perspective or by amendment.

Jefferson called the Constitution "the ark of our safety and grand palladium of our peace and happiness." He also said: We must be content to accept of its good and to cure what is evil in it, hereafter (1788).

Years later, in 1823, he said:

The States are now so numerous that I despair of ever seeing another amendment to the Constitution; although innovations of time will certainly call and now already call for some. '

Note his prescience.

Let it be emphasized; we never should amend this charter for light or transient reasons. Only for just cause shown should we attempt any change. What we do today is epoch making. We offer an amendment for an overriding :reason.

1 would like to remind the Members that the House · Committee on the Judiciary has been studying this problem since 1955 and has examined it from every conceivable angle. We have had the benefit of the testimony of political scientists, constitutional experts, the American Bar Association, and other groups who had no motive other than to serve this country by closing a gap which had existed since the adoption of the c · Constitution.

The Constitution was silent, too silent concerning presidential inability. Tragic events had cast ominous shadows which we dared no longer disregard. The assassin's bullet and possible nuclear holocaust forced action.

We, the conferees worked dispassionately and with searching inquiry after both Houses had responded to the call for action. We met in numerous conclaves and finally rounded out differences. We labored hard and patiently. We accepted the pace of Nature, for is not patience her secret? We examined all contingencies and possibilities. We present a solution that is ample, wise, and practicable.

May I at this time pay tribute to the gentleman from Ohio [Mr. McCuLLOCH] and the gentleman from Virginia [Mr. PoFF], both on the Republican side, and to the gentleman from Colorado [Mr. RoGERS] and the gentleman from California [Mr. CoRMAN] on the Democratic side--all conferees--who rendered painstaking and dedicated and wise services in the conference. They were of immeasurable help in the conference with the Senators. I am deeply grateful to them.

Mr. POFF. Mr. Speaker, the conference report represents a compromise. That word should be understood not as an apology for a concession but as a justification for an achievement, an achievement in the highest traditions of legislative and constitutional craftsmanship. It is an accommodation and an accord of viewPOints which once were widely divergent and now, happily, are concordant. The business of the Nation, left unattended for a century because too controversial, has been performed and the controversy has been resolved. Aside from minor, relatively inconsequential language differences, the House version and the Senate version were substantially equivalent in all but four major particulars.

The first major difference was in section 3. That is the section under which the President can voluntarily vacate his office and vest the Vice President as Acting President with the powers and duties of his office. The difference was in the mechanics of resumption of power · r by the President. Under the Senate version, the mechanics outlined in sections 4 and 5 would apply. Those mechanics involved first, a declaration of restoration by the President; second, an opportunity for a challenge by the Vice President transmitted to the Congress; and third, the possibility of congressional approval of the Vice President's challenge. The House version did not acuate the mechanics of sections 4 and 5 . . Rather, it was felt that a distinction should be made between section 3 authorizing voluntary withdrawal of the President and section 4 authorizing involuntary removal of the President by the Vice President. The House felt that the President would be reluctant to utilize section 3 if to do so exposed himself to the possibility of the · Vice Presidential challenge and congressional action when he decided to resume the office. Accordingly, section 3 of the House version provided that the President who used the provisions otf section 3 could promptly restore himself to his office simply by transmitting a written declaration to the two Houses of Congress.

The conference report-after adding two words of clarification-accepted the House version.

The second major difference between the two versions was in the mechanics of restoration in sections 4 and 5. In the Senate version, the Vice President as Acting President, was allowed 7 days in which to make a decision about challenging the President's declaration of restoration. The House version was 2 days. By way of compromise, the conference report recommends 4 days. The conferees intend that the 4-day period be interpreted as an outside limitation on the time in which the Vice President may consider making a challenge; it is not necessary that the President wait 4 days to resume his office if he and the Vice President mutually agree that he do so earlier.

The third major difference involves a procedural uncertainty which Speaker McCoRMACK during House debate recognized might cause calamitous consequences. Under the Senate version, the Vice President's challenge of the President's declaration of restoration had the effect of submitting the dispute between the two men to the Congress for settlement. However, it simply instructed Congress "to immediately proceed to decide the issue." This left unclear what delay might occur in the event the Congress was in rec.ess when it received the Vice President's challenge. Under the House version, the Congress, if not in session, is required to assemble "within 48 hours" to decide the issue.

The conference report accepts the House version.

The fourth major difference is a conceptual difference. Under the Senate version, the Congress having received the Vice President's challenge was empowered to act upon it and if it upheld the challenge by a two- thirds vote, the Vice President would continue to hold office as Acting President; otherwise, the President would resume his office. The House version was essentially the same except that it imposed a 10-day limitation upon congressional action. It said that if the Congress did challenge within 10 days after receipt, then the President would resume his office. The House approach guaranteed that any delay on the part of Congress, whether accidental and unavoidable or intentional and purposeful, would operate in favor of the President elected by the people.

The conference report adopts the concept of a time limitation but increases the time limit from 10 days to 21 days, and if the Congress is in recess when the Vice President's challenge is received, then the 21 days begin to run from the day Congress reconvenes.

No one should assume that House insistence upon a time limit was a criticism of the Senate. It is true that the rules of the other body permit unlimited debate and a small minority of Senators hostile to the President and loyal to the Vice President as Acting President could, in the absence of a time limit, make a great deal of public mischief at a most critical time in the life of the Nation. It is no less true that such mischief could be wrought by a small dedicated band of enemies of the President in the House. By tedious invocation of the technical rules of procedure, that little band could frustrate action on the Vice President's challenge for a protracted period of time, during which the Vice President would continue to serve as Acting President and the President, knocking on his own door for readmission, would be kept standing outside. If this little band happened to be one more than half the membership of the House, their task would be much easier, because they could simply meet and adjourn every third day without any action at all. Thus, more than half but less than two-thirds could effectively accomplish by inaction the same thing it would take two- thirds to accomplish by vote if there is no time limit in the Constitution. The conference committee understood this danger, and that is why the 21-day provision is in the conference report.

Several matters need to be clearly established by legislative history. First of all, the conferees unanimously intend that the 21-day period be considered an outside limitation and should in no wise be interpreted to encourage a delay longer than necessary. Indeed, in the face of such a crisis as the Nation would face at a time when section 4 would become operable, the conferees feel that both Houses of Congress should act with the least possible delay.

Secondly, the conferees unanimously intend that should one House of the Congress proceed to a vote on the Vice President's challenge and less than twothirds of its Members vote to uphold the challenge, this action shall have the effect of restoring the President immediately to his office, even though the other House has not yet acted.

Mr. Speaker, I have no fear but that this conference report will be adopted by a two- thirds vote. But I am prompted to express the hope and the plea that it will be adopted by a unanimous vote, and with such a congressional blessing, the proposal would, I am confident, be ratified by three-fourths of the States before the end of next year.

Mr. BOLAND. Mr. Speaker, I would like to take this opportunity . to associate myself with the distinguished majority leader and minority whip in expressing my gratitude and admiration for the chairman of the Committee on the Judiciary and the dean of the House, the gentleman from New York [Mr. CELLERJ.

Today is a very suitable occasion: for we have just given final House approval to a proposed constitutional amendment making necessary provisions for the continuance of orderly government and Executive responsibility in the case of Presidential disability or a vacancy in the Vice-Presidency. This legislation exhibits the genius and diligence which have been characteristic of all the undertakings of Mr. CELLER in his many years of service to the Nation and to this House.

His decades of service in the National Congress, his noteworthy legal career, and a sound understanding of the necessities and needs of the American Constitution have aU contributed to make our dean of the House a recognized leader in legal and constitutional matters, and a spokesman who must be heard. This House has heard Mr. CELLER and his Judiciary Committee in approving this legislation today. This is a great tribute to the chairman and his committee who have gone a long way toward effecting eventual incorporation of this greatly needed provision into our Constitution.

Mr. Speaker, I include with my remarks at this point in the RECORD an editorial taken from the Springfield, Mass., Daily News of June 29, 1965, entitled "When the President Is Disabled":

WHEN THE PRESIDENT Is DISABLED

A compromise formula for correcting a major flaw in the Constitution of the United States; namely, the lack of a provision for filling the Vice-Presidency when the office becomes vacant or for making the Vice President a temporary Acting President in case the President of the United States should become disabled, has been reached by Senate and House conferees. It will now go before Congress for approval and then to the States for ratification.

The way the plan would operate is that if the President felt himself unable to perform his duties he would simply notify the Speaker of the House of Representatives and the President pro tempore of the Senate of his disability. The Vice President would then take over immediately as Acting President. In the event of a President so disabled as to be unable to notify Congress of his disability or if he should refuse to admit he is disabled, the situation would be handled this way. The Vice President and a majority of the members of the President's Cabinet would sign a written declaration that the President was disabled and send the declaration to Congress. The Vice President would then become Acting President, just as though the President himself had declared his own disability.

The need for this constitutional amendment is generally accepted. On at least two occasions, because there was no such provision, the executive branch of the Federal Government has been virtually paralyzed because of this constitutional lack. President James A. Garfield lived for 80 days after being shot in 1881, but his Vice President felt he had not the right to take over. President Woodrow Wilson served for 18 months while paralyzed with a stroke, but many believe that his wife and the Cabinet really governed. There are also the cases of two other Presidents who were disabled. President William McKinley survived for 8 days after being shot in 1901, and the business of Government came to a halt. Most recently, President Dwight D. Eisenhower suffered a coronary thrombosis in 1955 and was almost completely isolated for a week and hospitalized for 6 weeks .

The proposed amendment to the Constitution also covers a vacancy in the Vice-Presidency. It provides that the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress. 'nlis is the first provision ever made for filling such a gap, which has existed often in this country. Not many, probably, realize it, but in the 176 years since John Adams became the first Vice President of the United States, the Nation has functioned without a Vice President on 16 occasions for a total of 37 years, which is roughly one-fifth of the time the Federal Government has been in operation.

Here is what happened to Vice Presidents who failed to complete their terms: George Clinton died April 20, 1812, 10 months before his term expired; Elbridge Gerry died November 23, 1814, 2 years before his term expired; John C. Calhoun resigned December 28, 1832, with 2 months to serve, to become a U.S. Senator; John Tyler became President April 6, 1841, almost 4 years before his term expired, replacing President William H. Harrison, who died; Millard Fillmore became President July 10, 1850, 2 years and 8 months before his term expired, succeeding President Zachary Taylor, who died; William R. King died April 19, 1853, with almost 4 years to serve; Andrew Johnson became President April 15, 1865, with 3 years and 11 months to serve, replacing President Abraham Lincoln, who was assassinated; Henry Wilson died in office November 22, 1875, a year and 3 months before the end of his term; Chester A . Arthur became President September 20, 1881, with 3 years and 5 months to serve, succeeding President James A. Garfield, who was assassinated; Thomas A. Hendricks died November 25, 1885, with 3 years and 3 months to serve; Garret A. Hobart died November 21, 1899, a year and 3 months before his term . expired; Theodore Roosevelt became President September 14, 1901, with 3 years and 6 months to serve, when President William McKinley was murdered; James A. Sherman died October 30, 1912, 4 months before his term expired; Calvin Coolidge became President August 3, 1923, with a year and 7 months to serve, when President Warren G. Harding died; Harry S. Truman became President April 12, 1945, with 3 years and 9 months to serve, when President Franklin D. Roosevelt died; and Lyndon B. Johnson became President November 23, 1963, with a year and 2 months to serve, when President John F. Kennedy was assassinated.

A way has now been found to overcome a serious constitutional weakness. It may not be ideal, but it is far preferable to the present void. It deserves prompt approval by Congress and ratification by the States.

Mr. ROYBAL. Mr. Speaker, I rise to urge prompt ratification by the legislatures of the several States of the proposed 25th amendment to the Constitution relating to succession to the Presidency and Vice-Presidency and to cases where the President is unable to discharge the powers and duties of his office. This proposed amendment, overwhelmingly adopted by both House and Senate, can be of vital importance in helping clear up some 175 years of constitutional uncertainty and in assuring the continuity of the legal Government of the United States whenever the questions of Presidential disability or succession arise, or a vacancy in the office of the Vice President occurs.

As cosponsor of the joint congressional resolution which proposed the amendment, I believe we have come to realize more fully than ever before, especially since the tragic assassination of our late beloved President John F. Kennedy, that we can no longer afford, in this nuclear space age, to gamble with the future stability of our Government by leaving its fate to the uncertain whims of chance.

Nothing less than the safe and sure continuity of the legal Government of the United States is at stake. This essential continuity has been endangered many times in the past, and in some instances, only good fortune has prevented possible disaster.

For more than a year after Lyndon Johnson became President, our national luck held out, and we were all witnesses to an impressive demonstration of the true inner strength of America's democratic traditions.

The new President firmly and quickly took up the reins of leadership, to assure continuity of the Government in the midst of a great constitutional crisis, to begin to heal the Nation's wounds, and to reinstill in our people a sense of unity and brotherhood and faith in the future. This experience has again focused public attention on the critical issue of Presidential and Vice-Presidential succession, as well as the related, and in some ways more difficult, problem of Presidential disability.

As a result, there · has developed a strong national consensus in favor of resolving these issues in a positive way, so that there will be no doubt concerning the constitutional provisions for handling such problems in the future. As an affirmative response to the need for a solution to these problems, the joint congressional resolution proposes to amend the Constitution in three respects: first, it confirms the established custom that a Vice President, succeeding to a vacancy in the office of the President, becomes President in his own right instead of merely Acting President; second, it establishes a procedure for filling a vacancy in the office of Vice President; and third, it deals with the problem of Presidential disability.

Section 1 of the proposed amendment provides that in the case of the removal of the President from office, or of his death or resignation, the Vice President shall become President.

Section 2 provides that in the event of a Vice-Presidential vacancy, the President can nominate a new Vice Pres­ table. ident, who will take office when he has been confirmed by a majority vote of both Houses of Congress.

Section 3 enables a President to declare his own disability to exercise the powers and duties of his office, thus voluntarily turning over those powers and duties, but not the office, to the Vice President who then becomes Acting President, until such time as the President declares that the disability no longer exists, and he resumes the powers and duties of his office.

In the absence of a Presidential declaration of disability, section 4 permits the Vice President, with the approval of a majority of the Cabinet, or such other body as Congress may stipulate, to make such a declaration, and to assume the presidential responsibilities as Acting President. It also provides for quick and orderly congressional resolution of any dispute over the President's ability, by authorizing him to resume discharging the powers and duties of his office unless two-thirds of both House and Senate agree with the Vice President and a majority of the Cabinet-or such other body as Congress has stipulated-that the President is unable to perform those duties.

This proposed amendment, though not perfect, represents a sincere effort on the part of many persons who have studied the admittedly complicated issues involved to offer a workable means of solving difficult and delicate problems affecting the continuity and perhaps even the life of our Government.

A variety of suggestions have been made to improve this proposed amendment, and Congress has given full and thorough consideration to all these suggestions, and, in fact, has incorporated several of them into the joint resolution. For these reasons, Mr. Speaker, I strongly urge our State legislatures to act without unnecessary delay, for the subject is important to the future stability and peace of this Nation, and we cannot afford the risk that further delay would entail in this vital matter.

As President Johnson stated in his message to Congress:

Favorable action • • • will, I believe, assure the orderly continuity in the Presidency that is imperative to the success and stability of our system.

Action • • • now will allay future anxiety among our people--and among the peoples of the world-in the event senseless tragedy or unforeseeable disability should strike again at either or both of the principal offices of our constitutional system.

If we act now, without undue delay, we shall have moved closer to achieving perfection of · the great constitutional document on which the strength and success of our system have rested for nearly two centuries.

Mr. CELLER. Mr. Speaker, I move the previous question on the conference report.

The previous question was ordered.

The SPEAKER. The question is on the conference report.

The question was taken; and (twothirds having voted in favor thereof) the conference report was agreed to.

A motion to reconsider was laid on the

GENERAL LEAVE TO EXTEND

Mr. CELLER. Mr. Speaker, I ask unanimous consent that all Members have 5 legislative days in which to extend their remarks in the RECORD on the conference report just agreed to.

The SPEAKER. Is there objection to the request of the gentleman from New York?

There was no objection.