February 18, 1965

Mr. MANSFIELD. Mr. President, I move that the Senate proceed to the consideration of Calendar No. 62, Senate Joint Resolution 1.

The PRESIDING OFFICER. The Senate joint resolution will be stated by title . .

The LEGISLATIVE CLERK. A 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.

The PRESIDING OFFICER. The question is on agreeing to the motion of the Senator from Montana.

The motion was agreed to, and the Senate proceeded to consider the joint resolution, which had been reported from the Committee on the Judiciary with amendments.

Mr. SMATHERS. Mr. President, a proposal such as Senate Joint Resolution 1 may not have been needed when the Founding Fathers drafted the Constitution. It may not have been needed m 1877, when the Nation foundered in confusion over the question of whether Samuel J. Tilden had a just claim on the Presidency. It may not have been needed during the 80 days when President Garfield lay helpless and dying from an assassin's bullet. · And perhaps it was not needed during the trying 16 months in which President Wilson was virtually unable to perform the func- · tions of his office.

But today, Mr. President, we are living in a nuclear age--an . age filled with promise, but fraught with danger. This generation of American people and our generations yet unborn cannot afford, for the safety of this Nation and the world, to be even for a moment without a Chief Executive of sound mind and body.

Senate Joint Resolution 1, by providing a means by which we shall always have a Vice President, and by giving us a formula by which the Vice President may act as President in certain circumstances, would provide for the smooth transition of executive authority, even if this Nation should have to undergo the terrible tragedy of losing a President and Vice President within the same 4-year term C)f office.

For the better part of the 176 years since the Constitution was adopted, Congress has been unable to agree to a proposal which would fill vacancies 1n the office of Vice President and which would provide a formula for determining Presidential inability. Throughout this period, we have been . conscious of the need for something to be done. Now we are on the threshold of doing it, for now we have a proposal that is the work of many men who have labored for many months.

They developed a consensus-each one participating in legislative give-andtake, no one demanding pride of authorship. They developed a · proposal which the Senate approved, in substance, by a vote of 65 to 0 in the 88th Congress. They developed a proposal to which 77 Senators have attached their names in this Congress. They developed a proposal which is reasonable, workable, and flexible. It does not pretend to meet all contingencies; but it is drawn with broad brush strokes, so as to enable future American leaders to deal with contingencies which we perhaps are unable to foresee.

Mr. President, I know that all Members of this body and the American people are deeply and seriously interested in this proposal.

I know that several 11th-hour proposals were submitted in the greatest of sincerity. Some have suggested that we not attempt to amend the Constitution, but simply pass a statute to deal with these grave problems. Yet the present Attorney General of the United States and the previous three Attorney Generals have all stated emphatically that a Constitutional amendment is required in order to solve these problems. All of us can well imagine how, at a time when the physical or mental ability of the President to perform his duties was in question, a simple statute, subjected to widespread and serious challenge, could well plunge the Nation into chaos. Even if there is the slightest question, Mr. President, it would be well for us to take no chances. · . It would be well for us to amend the Constitution-,-not in an effort to revise it, but in order to remedy an obvious defect.

Others have suggested that we make no effort to specify a formula under which the President could be declared unable to perform his duties. They suggest an amendment which would simply allow Congress to pass laws on Presidential inability. There are several weaknesses to this proposal. First, I remind my colleagues that in 1933, a constitutional amendment was ratified. This 20th amendment, among other things, authorized Congress to pass laws to provide for the contingency that both the President-elect and Vice-President-elect might not qualify for office. Thirty-two years have gone by, Mr. President; and not only has Congress not passed such a law, but none has been given serious consideration.

More important, Mr. President, is the danger inherent in such a blank-check approach to the problems with which we are dealing today. Imagine, if you will, what President Andrew Johnson's hostile Congress might have done with the blank-check authority to pass laws on how the President would be declared disabled. Even if the President had vetoed such a bill, a two- thirds vote to override the veto could have been mustered on the . subterfuge that Congress was not trying to get rid of the President, but merely was trying to provide for the contingency that he might be disabled at some time in the future.

Senate Joint Resolution 1 provides amply for the protection of the President from would-be usurpers. Even if the Vice President and the President's own Cabinet · should conspire to unseat the Chief Executive, the conspirators would still need to win over two-thirds of both Houses of Congress.

The proposal before us leaves the decision on inability in the hands of the executive branch of Government. Only when the President, on the one hand, and the Vice President, with the support of a majority of the Cabinet, on the other, disputed the President's ability to perform, would Congress come into the pic- · ture, to settle the question. The blankcheck approach could well open the door to clear infringement by the legislative branch on the prerogatives of the executive branch.

We must jealously guard our traditional separation of powers , for it has given this Nation checks and balances so effective as to enable it always to move forward, but with reason and moderation.

Finally, Mr. President, the blankcheck approach, I am afraid, would meet with great disfavor among the several States that must ratify our action before it can become a part of the bedrock law of our land. In our form of government, certain rights are reserved to the States. I firmly believe that our States would object, and properly so , to any constitutional amendment which would hand over to Congress the right to change the law any time it chose, on a matter as grave as that of who is to lead our Nation in this perilous period. The States will demand, and properly so, constitutional language that makes clear the path which must be followed if there is a vacancy in the office of Vice President and if a President is temporarily struck down by severe illness or-and we must frankly face this terrible prospect-by the bullet of a would-be assassin.

We have traveled a · long road toward the realization of a proposal such as the one before us. We are close to seeing it enacted. · Let us not now shrink from meeting our responsibility.