February 19, 1965 (3)

The Senate resumed the consideration of 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.

Mr. BAYH. Mr. President, I ask unanimous consent that the committee amendments be considered and agreed to en bloc, and that the bill as thus amended be considered as original text for the purpose of further amendment, not prejudicing the rights of any Senator to further amend the bill.

The PRESIDING OFFICER. Is there objection? The Chair hears none, and it is so ordered.

The committee amendments agreed to en bloc are as follows:

On page 2, line 17, after "SEc. 3.", to strike out "If the President declares in writing" and Insert "Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration"; in .line 23, after "SEc. 4.", to strike out "If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office - as Acting President." and insert "Whenever the Vice President, and a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmit to the President 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 Vide President shall immediately assume the powers and duties of the office as Acting President."; on page 3, line 13, after the word "the", where it appears the second time, to strike out ''Congress" and insert "President of the Senate and the Speaker of the House of Representatives"; in line 18, after the word "the", where it appears the first time, to strike out "heads" and insert "principal officers"; and at the beginning of 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 Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the follow- ing 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 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, such powers and duties shall be discharged by the Vice President as Acting President. " 'SEc. 4. Whenever the Vice President, and a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmit to the President 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.

"'SEc. 5. Whenever the President transmits to the President 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, with the written concurrence of a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall immediately proceed to decide the is• sue. If the Congress determines by twothirds vote of both Houses that' the President is unable to discharge the powers and duties of the office, the Vice President shall continue to discharge the same as Acting President; otherwise the President shall resume the powers and duties of his office.' "

Mr. BAYH. Mr. President, I send to the desk an amendment to section 5 of the bill and ask that it be stated. I feel that this was the intention of the com- . mittee. It is a change of wording that needs to be made in order to have the bill conform to the intention of the committee. It does not change the bill in any way at all. ·

The PRESIDING OFFICER. The clerk will state the amendments.

The LEGISLATIVE CLERK. On page 3, in line 17, strike the following: "with the written concurrence of" and insert in lieu thereof: "and".

On page 3, line 20, strike the following: "transmits wi-thin two days to the Congress his" and insert in lieu thereof: "transmit within two days to the President of the Senate and the Speaker of the House of Representatives their". · The PRESIDING OFFICER. The question is on agreeing to the amendments of the Senator from Indiana.

The amendments were agreed to.

Mr. BAYH. Mr. President, and Members of the Senate, on December 1, 1964, the President of the United States had a small growth removed from his hand. The Nation wondered. On January 23, 1965, Americans awoke to learn that during the night the President had entered the hospital with a cold. The Nation, and, indeed, much of the world worried. But we were fortunate on each of those occasions.

Today we have a strong, forthright, and vigorous President of the United States. I might also add that we are fortunate today because we have an ablebodied and vigorous Vice President of the United States. This was not the case in the sad months following November 22, 1963.

We have not been so fortunate in the past to have had able-bodied, vigorous Presidents and Vice Presidents.

Sixteen times in the history of our country we have been without a Vice President. All Americans can recall the eight Presidents who have died in office, but our memories fail us in remembering that seven Vice Presidents died in office; and one Vice President, John Calhoun, resigned to become a U.S. Senator. The total span during which this Nation has not had a Vice President has been in excess of 37 years.

There have been serious presidential disabilities over various periods of the history of our country. I should like to review them briefly.

President Garfield lay disabled for 80 days after being struck by the bullet of an assassin. ·

Ruth Silva, in her book "Presidential Succession," described that period in these words:

During these 80 days a great deal of urgent business demanded the President's immediate attention: there were postal frauds; officers did not perform their duties because they had not been commissioned; the country's foreign relations were . deteriorating • Nearly every day the newspapers mentioned some important matter which was ignored because it required the President's personal attention.

And still there was no one to perform the functions that only the disabled President could perform.

President Wilson had a serious illness lasting 16 months. To all intents and purposes, history shows that his wife and his physician conducted the Government of the United States. No member of the Cabinet was permitted to see the President for a minute. No one could see or hear a word he said or wrote.

Presidential Assistant Joseph Tumulty was not allowed to see the President. However, in good conscience, he felt he was compelled to give Mrs. Wilson a list of business which he felt needed Presidential action.

I quote from Eugene Smith's "When the Cheering Stopped," relating to that time:

The railways taken over during the war still awaited return to their owners, the Costa Rican recognition matter was still up in the air, a commission to deal with the mining strike situation should be appointed, the Secretaries of the Treasury and the Interior and the Assistant Secretary of Agriculture needed replacements, there were vacancies in the Civil Service Commission, Federal Trade Commission, Interstate Commerce Commission, Shipping Board, Tariff Committee and other agencies, and that diplomatic appointments were needed for Bulgaria, China, Costa Rica (if recognized), Italy, the Netherlands, Salvador, Siam, and Switzerland. Also, the Democratic leadership in the Senate desperately wanted an expression of Wilson's policy in dealing with the Lodge amendments to U.S. entry into the League of Nations.

Subsequently, without Presidential advice, America's entry, and - later the League of Nations itself, failed.

President Cleveland underwent a major operation, in complete secrecy, aboard a private yacht cruising off Long Island.

More recently, in the memory of all of us President Eisenhower had three serious illnesses. The Vice President, Mr. Richard Nixon, in his book "Six Crises," d - describes the period surrounding the Presidential heart attack on September 24, 1955, as a period of "governmental lull."

However, if it was a period of governmental lull, I wonder what a period of governmental crisis would have been. I quote from the New York Times of September 27, 1955, relating to the times in which we lived:

Top-level decisions were pending on disarmament policy, budgetary problems, military force levels, certain politicostrategic questions, withdrawal of troops from Korea, future military policy toward Formosa, and reduction of forces in Japan.

For some 2 months after President Eisenhower's heart attack the Government was directed, for all intents and purposes, by a six-man committee, comprised of Vice President Nixon, Presidential Assistant Sherman Adams, Mr. Dulles, Secretary of State, Attorney General Brownell, Secretary of the Treasury Humphrey, and General Persons.

Vice President Nixon wrote of this period in his "Six Crises":

Although it was hardly mentioned, I am certain that many of us realized our teamgovernment would be inadequate to handle an international crisis, such as a brush-fire war or an internal uprising in a friendly country or a crisis of any ally. The everpresent possibility of an attack on the United States was always hanging over us. Would the President be well enough to make the decision? If not, who had the authority to push the button?

Vice President Nixon, after President Eisenhower's second illness, which was a filled. 30-minute operation for an attack of ileitis on June 8, 1956, says, in his book "Six Crises":

On several occasions afterwards he (Eisenhower) pointed out to me that for the 2 hours he was under anesthesia the country was without a chief executive, the Armed Forces without a Commander in Chief. In the event of a national emergency during those 2 hours, who would have had the undisputed authority to act for a completely disabled President?

Again, Vice President Nixon, on President Eisenhower's third illness, which was a stroke on November 27, 1957, stated in his book:

It was a time of international tensions. Only a month before the Soviet Union had put its first Sputnik in orbit • • •. The most immediate problem was a scheduled meeting of NATO only 3 weeks away • • •. On the domestic front, the first signs of the 1958 economic recession were becoming obvious • !It •. We were having serious budget problems.

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

Former Attorney General Brownell, who was one of the committee of six during the illness mentioned, wrote of the half hour when President Eisenhower was unconscious during his ileitis operation that:

It was realized that the announced intention of the President to undergo a serious operation might entice a hostile foreign power to make some drastic move in the expectation of finding, at the critical moment, confused and uncertain leadership in the United States.

Senate Joint Resolution 1 is an effort to guarantee continuity within the executive branch of Government. It is designed to provide that we shall always have a President or Acting President physically and mentally alert. Second, and of equal importance, it is to assure that whoever the man may be, there will be no question as to the legality of his authority to carry out the powers and duties of the office. ·

Mr. LONG of Louisiana. Mr. President, will the Senator yield?

Mr. BAYH. I am glad to yield.

Mr. LONG of Louisiana. I commend the Senator for the fine work he has done both in studying the background and problem and also in bringing the measure before the Senate at this very early date. The Senator has labored long in the vineyard on this matter. I believe he managed the measure in the previous Congress, which the Senate passed. Unfortunately, on that occasion, the House failed to act. I certainly hope that the efforts of the Senator will be crowned with success, and also the efforts of his committee; and that this measure, having passed the Senate, will be promptly acted upon by the House of Representatives in the first session of Congress.

Mr. BAYH. I am grateful to the Senator for his kind words. I know of his long interest in this subject and have discussed it with him. I know of his concern that this loophole in the Constitution of the United States should be (At this point Mr. PELL took the chair as Presiding Officer.)

Mr. BAYH. Mr. President, let mereview for a moment what has gone on before, to establish and clarify the Executive authority of the U.S. Government. First, I refer to article II, section 1 of the Constitution.

I believe we should refer to article II, section 1 of the Constitution on this particular question. The contents of article II deal with the responsibility of the Executive 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 of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

In addition, article II, following · the Executive powers, or executive contingencies, deals with the selection of electors, it deals with the manner in which the President and Vice President shall be elected. This, let me point out, has subsequently been amended in the 12th amendment. It deals with the qualifications which are prescribed for the President and the Vice President. It deals with Presidential compensation. It deals with the oath of office which the President is required to take. It deals, most important of all, with the powers and duties which are given to the President. It deals with messages-the state of the Union message, and others-which the President may make to the Congress. It also provides for the event of removal, death, resignation, or inability of the President.

I should like to read this last provision, because it is this provision with which we are dealing specifically in Senate Joint Resolution 1.

The clause reads as follows:

In case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

Senate Joint Resolution 1 is designed to clarify the ambiguity, and remove the uncertainty and doubt which have been raised over the years by this clause.

I ask unanimous consent to have printed in the RECORD the text of Senate Joint Resolution 1, as amended by the committee, and more recently amended by unanimous consent of the Senate.

There being no objection, the joint resolution, as amended, was ordered to be printed in the RECORD, · as follows:

S.J. REs. 1

Joint resolution proposing an amendment to the Constitution of the United States relating to succession to the Presidency and

Vice-Presidency and to cases where the President in unable to discharge the powers and duties of his office

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

"ARTICLE-

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

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

"SEc. 3. Whenever the President transmits to the President 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, such powers and duties shall be discharged by the Vice President as Acting President. "SEc. 4. Whenever the Vice President, and a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmit to the President 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.

"SEc. 5. Whenever the President transmits to the President 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 the principal officers of the executive departments or such other body as Congress may by law provide, transmit within two days to the President 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 immediately proceed to decide the issue. If the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the office, the Vice President shall continue to discharge the same as Acting President; otherwise the President shall resume the powers and duties of his office."

Mr. BAYH. Mr. President, Senate Joint Resolution 1 removes all doubt about the Vice President succeeding to the office of President.

There may be some Senators who might believe it rather foolish to deal with a problem of this kind when all America takes it for granted. All America does not take it for granted. There is significant constitutional authority, and constitutional scholars are concerned about the fact that there still is a scintilla of doubt as to whether the President, upon dying, is succeeded by the Vice President who succeeds to the office as President, or merely assumes the powers and duties of the office as Acting President.

I ask Senators to recall with me the first tragedy which occurred when President William Henry Harrison was lost, and he was succeeded by the then Vice President Tyler. · The first papers which were given to the new President to sign contained under his name the words "Acting President." Subsequently, a close analysis of what our constitutional forefathers discussed in the Constitutional Convention leads us to believe that there was good reason for including the words "Acting President."

Inasmuch as Vice President Tyler decided that he did not wish to be acting President, that he wished to be President, he struck the word “acting.” Ever since that time, it has become so entrenched in the laws of the land that it is indeed the law of the land today.

We feel that we should remove any doubt whatsoever about this issue.

The point is not so ridiculous as it seems because on December 10, 1963, following the tragedy in Dallas, Tex., the New York Times published an article concerning a New Mexico lawyer named Leonard Jones, who had forwarded a brief to the Attorney General challenging the right of President Johnson to take the oath of office as President, rather than the oath as Acting President. I also point out that the 22d amendment to the Constitution which is a relatively recent amendment, reads in part as follows:

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

! emphasize the word "acted"- for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

Therefore, in the recent history of amending the Constitution, we have referred to the possibility of the Vice President perhaps being Acting President instead of being President. This can be remedied and should be, I feel-and will be-by specifying, as we do, in section 1 of Senate Joint Resolution 1, that upon the death of the President, the Vice President shall become the President.

It also provides that in the event there is a Vice-Presidential vacancy either because of death, resignation, or removalof either Vice President or President, both cases of which would result in a vacancy-the President would be nominated by a majority vote in both Houses of Congress, and subsequently a new Vice President would be elected, who would, in fact, be the Vice President. This formula provides, first, that there would be a Vice President at all times; second, that there would be a Vice President who would be acceptable to the President, a Vice President with whom the President could work.

I hope all Senators will agree with me that at . a time of international crisis, such as the death of a President in the United States, the last thing we would need would be a Vice President with whom the President could not get along. Third, it would provide for a Vice President who would have received a vote of confidence and would have been, in fact, elected by the Members of both Houses who have the responsibility for being close to the people and knowing what they desire and expressing their wishes in Congress.

I should like to emphasize briefly for the RECORD the importance of having a Vice President at all times.

I do not believe that there is any office in existence which has been subjected to more puns and ridicule at one time or another in the history of our country than the office of Vice President. This might have been well directed toward some Vice Presidents at · an earlier age in the development of the country, but today we have seen a rapid development in the office of Vice President to the point where he is now a full-time officeholder.

Today, the Vice President is not a figurehead. He is the chief ambassador of our country, traveling all over the world carrying the flag and the good will of America with him. He sits in at Cabinet meetings. He is a member of the National Security Council. He is Chairman of the National Aeronautic and Space Administration. He is Chairman of the President's Committee on Equal Employment Opportunity. He presides over the Senate. He has the opportunity-and I feel that he should-to relieve the President of many of the social obligations which rest upon the Chief of State.

In addition, the Vice President is only one heartbeat away from the most powerful office in the world.

Therefore, I believe that it is abundantly clear that we need provisions in the Constitution to enable the United States to have a Vice President at all times.

Let me hastily point out that in the area of succession Congress has dealt with the problem on three occasionsin 1792, 1886, and 1894 . On all three occasions it did not deal with replacing a Vice President or with the necessity of finding someone to serve as President when the President was unable to perform the powers and duties of his office, but only with the contingency that would arise when both the President and Vice President were removed.

Let us pass quickly to sections 3, 4, and 5 of the joint resolution, which deal with the inability of the President to carry out the powers and duties of his office.

Searching high and low for the intent of our Founding Fathers for a reference to which I referred earlier, first, inability and, second, disability, we find little solace in the notes on the Constitutional Convention. Only one question was raised on this point, and that was raised by John Dickinson of Delaware, wnen he rose on the floor and said:

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 subject.

Mr. President, absent any direction by our Constitutional Fathers, we have been drifting on a sea of indecision for the best part of two centuries. We have not dealt with the admittedly complicated problem of Presidential inability.

Let us consider how Senate Joint Resolution 1 deals with the problem.

Section 3 specifies that the President may voluntarily declare his own disability, and, upon doing so, and upon transmitting to the Speaker of the House and the President of the Senate his written declaration, the Vice President shall assume the powers and duties of the office as Acting President for the duration of the President's illness or disability.

Let me emphasize two things. The Vice President assumes only the powers and duties of the office, not the office itself, and does not become President but, in fact, is only Acting President.

This, I think, is a reasonable assumption to make. It is an assumption which the Attorney General made in testifying before our committee. It is the assumption that Presidential power given ment. up voluntarily may be assumed in the same manner in which it was given when the President desires to do so.

Mr. HRUSKA. Mr. President, will the Senator yield, or would he prefer to finish his statement before yielding for a question?

Mr. BAYH. How extensively does the Senator wish to interrogate me?

Mr. HRUSKA. This deals with the Vice President assuming the powers and duties of the Presidency as Acting President. I should like to ask only a brief question on that point.

Mr. BAYH. I yield. I do not desire to avoid questions from my good friend from Nebraska, who I am sure has many penetrating questions to ask. However, I would like to complete my statement and not yield if the questioning is to be extensive.

Mr. HRUSKA. I have only a brief question.

Mr. BAYH. I yield.

Mr. HRUSKA. In regard to the question of the Vice President assuming the powers and duties of the President's office, may I ask whether there is any language in the joint resolution for creating the office of Acting President if the Vice President then in office is disabled and unable 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 Acting President, and the President is alive.

Mr. HRUSKA. But if the President is disabled or is incompetent or for some other reason is not able to assume the duties and powers of the Presidency, under the joint resolution there will be no means by which a Vice President can be selected. Is that correct?

Mr. BAYH. The Senator is correct. I might elaborate on that point by giving the feeling of the sponsors as well as the members of the committee, by trying to incorporate very quickly some of the testimony which was brought before the committee. As the Senator knows well, and as I mentioned a moment ago, Congress has dealt with the problem of Presidential and Vice-Presi • dential deaths in three succession acts. Therefore, the Speaker of the House is next in line. We could become entangled in the question of separation of powers more than we have. Would the Speaker have to give up his office or resign from Congress? We have dealt with the two most important emergencies so far as the Executive is concerned, first, the need to have a Vice President at all times and, second, to have an able-bodied President. We feel that we should get this provision into the Constitution and then deal with some of the other eventualities and perhaps propose another constitutional amendment.

Mr. HRUSKA. That is one of the weaknesses in putting all these procedures into a constitutional amendment. There is no flexibility which would be called for in the event of a contingency which is not covered in a constitutional amendment. It would necessitate a long, extended and rather tortuous course under another constitutional amend­

Mr. BAYH. It depends on whether the Senator feels that the removal of the President from office even temporarily is of such significance that we should incorpora.te within the Constitution certain basic provisions that must be followed and the protections that must be given to the President, such as the protections already given, as in the case of impeachment, and such provisions as that under the 12th amendment so far as only the President is concerned.

Mr · . HRUSKA. In the amendment which I understand will be offered by the Senator from Illinois [Mr. DIRKSEN], provision is made for the contingency in this language:

The Congress may by law provide for other cases of removal, death, resignation, or inability of either the President or Vice President.

That contingency with respect to the Vice President is not contained in Senate Joint 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 detail the relative merits of dealing with the question by statute compared with dealing with it by constitutional amendment, because I believe this is a question which should be discussed. I have certain strong feelings on the question, which are supported by a majority of the committee--though my friend from Nebraska disagrees with them-that a statutory approach would be insufficient to deal with the problem. We have a difference of opinion, to be sure.

Mr. HRUSK. I thank the Senator ' for his courtesy.

Mr. ELLENDER. Mr. President, since the Senator from Indiana has yielded to my good friend the Senator from Nebraska, will he yield to me?

Mr. BAYH. I yield.

Mr. ELLENDER. Article II of the Constitution gives to the Congress some rights to determine who shall succeed the President. Am I to understand that one of the main purposes of the amendment is to provide for the selection of a Vice President in the event the President should die and the then Vice President should succeed him? ·

Mr. BAYH. That is correct.

Mr. ELLENDER. Does the Senator from Indiana concede that, other than providing for a method of selecting a Vice President, under the Constitution the Congress would have the right to do every other thing that is provided in the joint resolution?

Mr. BAYH. I am not certain that I understand the question. The proposed constitutional amendment would not in any way limit the powers which Congress already has to deal with the subject.

Mr. ELLENDER. J am not speaking of that. Since the joint resolution relates to ways and means of selecting a Vice President should a President die and be succeeded by the then Vice President, could Congress now do everything that is proposed in the joint resolution except that part which relates to the selection of the Vice President?

Mr. BAYH. In other words, the Senator feels that Congress already has sufficient authority to deal with the question of disability.

Mr. ELLENDER. I am merely asking the question.

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

Mr. ELLENDER. Will the Senator point out why? Article II of the Constitution seems very specific. It provides as follows:

In case ' of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President-

If that should happen, we would no longer have a Vice President, for he would have taken charge.

Continuing to read from article IIand the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

The Congress has the right to do all those things now. I am wondering if Congress does not now have the authority to do everything that is proposed in the joint resolution we are now considering except providing for ways and means to select a Vice President.

Mr. BAYH. To be honest with the Senator from Louisiana, some Senators believe that Congress does have the authority . . Others believe that Congress does not have the authority. The great weight of the . evidence before our committee, including the message of the President of the United States and the testimony of various Attorneys General-including former Attorney General Brownell and former Attorney General Rogers-is to the effect that now there is no power to do the things contained in the resolution.

I should like to point out the reason behind that attitude. The joint resolution is supported by the American Bar Association and many other similar associations. Two very small words in article II, section 1, which the Senator has read, are pointed out particularly. I should like to reread that portion of the article:

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolveWhat did our Constitutional Fathers mean when they used the word "same"? Did they mean the office or the powers and duties of the office? There is a great difference when we deal with disability.

Mr. ELLENDER. If a President should die and the Vice President should succeed him, the Vice President would certainly have the same · powers as now devolve upon the President.

Mr. BAYH. Still the question of the President coming in remains. If the President is dead and cannot resume the powers and duties of the office, it does not make any difference whether he is Acting President or President. As Henry Clay said in discussing the subject when Tyler was making the decision, it is impossible to separate the powers and duties from the office. Once the Vice President has taken over from a sick President, it is impossible for the President to resume his office if that is true. During the illness of President Garfield the unanimous feeling among members of the Cabinet at that time was that Vice President Arthur should act, that he should take over. But it was the majority feeling, which was supported by the then Attorney General, that if he did-if he once assumed the powers and duties of the office-Garfield upon recovering could not take over the office again.

Mr. ELLENDER. As I interpret the language of the Constitution, should the President be disabled, Congress could fix ways and means whereby the President could take over again after the disability · was removed. The article states that Congress has the power to take certain action in the event of disability. The last part of the article states: "declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected."

That would indicate to me that if the disability were removed, Congress could certainly fix ways and means by which the President who might be disabled could resume the office. ·

Mr. BAYH. I should like to ask the Senator from Louisiana to go back to the language immediately prior to the point at which he started reading the last time.

Mr. ELLENDER. I am considering the entire section.

Mr. BAYH. I think we must look at each word individually. In part, the section states, "and the Congress may by law provide !or the case of removal, death, resignation, or inability, both of the President and Vice President.”

Mr. ELLENDER. Yes.