February 19, 1965 (3)

Mr. BAYH. There has been a considerable amount of opinion that Congress could not provide relief by law unless both the President and the Vice President died. The first succession statute which was passed was in 1792. It might be pointed out that many , of our constitutional fathers who attended the Constitutional Convention were in that Congress at that time.

If that had not been their interpretation, it seems to me they would have provided for other contingencies that would · not have required both the President and the Vice President to be out of the picture before Congress could act.

Mr. ELLENDER. As I recall, Congress provided, without constitutional amendment, for a succession to the · office.

Mr. BAYH. But only in the event both the President and the Vice President 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 that the language of the Constitution is broad enough to permit the Congress to do the very thing which the Senator desires to be done under that joint resolution which we are now discussing except the selection and the method of selecting a Vice President.

Mr. BAYH. Although the Senator from Louisiana and I apparently differ--

Mr. ELLENDER. I am merely trying to get information.

Mr. BAYH. I must say that if the question were in the balance-if a scale were in front of me and I were asked to choose which interpretation the Constitutional Fathers meant-it would be difficult for me to decide. The distinguished Senator from Louisiana and I have spent a great deal of time discussing the question. I have tried to point out that there is a considerable doubt on the part of others. Should we not reconcile such doubt once and for all by inserting in the Constitution an amendment which would provide for these contingencies? If we should be confronted with an implementing statute that had been passed, we would be met with all the uncertainties of a court test every time we needed to use the statute. Under the proposed amendment, at any time we should need certainty of action, we would have the whole procedure of court tests before us.

Mr. ELLENDER. That may be. I point out that we may have a court test on the very language which we are now discussing. I am surprised that we have not had it up to now. As I recall Vice President Stevenson came very close, although he did not go into court.

Mr. BAYH. The constitutionality of a provision in the Constitution cannot very well be tested.

Mr. ELLENDER. I am refering to an interpretation of the provision.

Mr. BAYH. The constitutionality of a constitutional amendment has been tested?

Mr. ELLENDER. The language could ~ea~i~=~ for a determination of its

Mr. BAYH. That is correct. But it would be necessary to test not only the intention of a statute but also its constitutionality.

We feel that there is sufficient doubt to warrant placing an amendment in the Constitution.

There is another reason for dealing with the problem by constitutional amendment. The distinguished Senator from North Carolina [Mr. ERVIN] was one of the strong proponents of this theory in the Committee on the Judiciary. He said that by dealing with the situation by constitutional amendment, certain guarantees of Presidential action could be provided . For example, a twothirds vote is required by Congress before the President can be removed. But if it were left to Congress to specify by law what formula should be followed, that could best be done by a majority vote. I believe that that would afford insufficient protection "for the President.

I believe we can deal with this problem now, after long objective study of the problem, and not be confronted with a hasty statute, which might be changed to meet the contingencies of the hour.

One of the basic reasons why we believe there must be a constitutional amendment is that it would provide the greatest degree of certainty.

If I may proceed with my statement, I shall try to answer questions later. This is a highly complicated area, as the Senator from Louisiana knows.

I have just finished stating the history of section 3, which permits the President to relinquish the powers and duties of his office during the tenure of his disability, and permits the Vice President to assume those powers and duties as Acting President.

I should like to cite one other factor that might be an answer to the question raised by the Senator from Louisiana. Although probably a statute would remove doubts from the mind of the Vice President, there has been much reluctance upon the part of previous Vice Presidents, particularly Vice Presidents Arthur and Marshall, to consider exercising the powers and duties of the office of President, because there were no statutory or constitutional provisions for them to do so. We believe that this difficulty should be cleared up once and for all, so that the Vice President can legally have the constitutional responsibility to act in the event the President is unable to do so.

Section 4 provides for the eventuality that the President is unable to make a declaration of his own inability, or for other reasons does not declare his own inability. In such an eventuality, Senate Joint Resolution 1 provides that the Vice President, acting with the concurrence of a majority of the principal officers of the executive department, or such other body as Congress may by law provide, may, by submitting a written declaration and transmitting it to the Speaker of the House and the President of the Senate, assume the powers and duties of the office of President.

It is my opinion that the Vice President has the constitutional obligation to act in the event that the welfare of the Nation demands it and the President. is unable to perform the powers and duties • of the office, and that the Ca~metthos~ who are closely associated With the Pres~dent-could adequately protect ~he President from a coup or the usurpati.on of ~Is office by a power-hungry VIce President. . .

Section .5 provides for. the very difficult situatiOn m which a dispute may arise between the President, on the one and a?d the. Vice President and a majority of his Cabinet, on the other. For example, suppose .~he President says, I have recovered,” but the VIce President an~ a majority of the heads of the executive departments say, Mr. President, you IllftY be well enough to walk and talk, but we who have had an opportunity to examine you carefully and who know you well believe you have not sufficiently recovered, and that the best interests of the country dictate that the Vice President continue to carry on the powers and duties of the office of President." In such an eventuality, the Vice President and a majority of the Cabinet taking one position, and the President taking the other, the resolution provides the only solution which I feel is feasible; namely, that Congress shall decide this difficult question, and that a two-thirds vote of Congress shall be required to protect the President, similar to the two-thirds vote which is required in impeachment proceedings.

That is what Senate Joint Resolution 1 attempts to accomplish. It seeks to provide the Nation with a Vice President at all times; to provide it with an ablebodied President, or Vice President acting as President, who can adequately carry out the powers and duties of the office of President.

A question was raised by the Senator from Louisiana [Mr. ELLENDER] about the need for a constitutional amendment. I should like to list some of those who have testified before our committee believing it is imperative that there be a constitutional amendment:

The present Attorney General, Mr. Katzenbach.

Former Attorney General Brownell and former Attorney General Rogers.

Presidents and past presidents of State bar associations.

The American Bar Association House of Delegates has unanimously recommended that a constitutional amendment be adopted.

The Committee on Economic Development was emphatic in its recent study that a constitutional amendment is required.

Paul Freund, a noted constitutional scholar at Harvard University, was equally emphatic.

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

I should like to quote from the message that the President sent to Congress on this subject. He said:

I am, accordingly, addressing this communication to both Houses to ask that this prevailing will be translated into action which would permit the people, through the process of constitutional amendment, to overcome these omissions so clearly eviden,t in our system.

Believing, as I do, that senate Joint Resolution 1 and House Joint Resolution 1-

House Joint Resolution 1 is a similar proposal and was introduced by Representative CELLER, chairman · of the House Committee on the Judiciarywould responsibly meet the pressing need I have outlined, I urge the Congress to approve them forthwith for submission to ratification by the States.

As I said in my colloquy with the Senator from Louisiana, the basic theory has been that if there is a doubt as to whether or not a constitutional amendment is needed, we should be sure of our action. One of the main purposes for feeling that the controversial question of inability of the President should be settled by constitutional amendment is to provide som degree of certainty if the Nation is confronted with a disabled President. Dealing with the problem in statutory form alone would create all the uncertainty of a court test of the constitutionality of the statute. That, we believe, should be avoided, if at all possible.

One of the most important elements of the ready transfer of executive authority in time of crisis is to have widespread public acceptance. On the horrible day of November 22, 1963, when President Kennedy was no longer with us, the one important fact for which we could thank God was that Lyndon Johnson, a man who was readily accepted as the Vice President, was available to move into the office of President.

It is our feeling that a constitutional amendment which is not only subjected to the scrutiny of both Houses of Congress and requires a two-thirds vote, but also must be ratified by three-fourths of the State legislatures has much wider public acceptance, and the public is much more aware of its terms than they are of a statute which is passed by a majority vote of both Houses of Congress.

The problems which I have discussed briefly are so obvious that many have asked me, "Why has not Congress solved these problems? Why has no thought been given to them?"

I have quickly come to the defense of my colleagues and our predecessors in this body by saying that it is not true that Congress has not dealt with these problems, and that no thought has been given to them. In the last session alone, we had 13 measures before the Subcommittee on Constitutional Amendments, of which I am chairman.

This year more than 30 proposals are before the House of Representatives. If there is any reason why we have not solved the problem, it is not that we have not given it much thought, but that we have been unable to reach an agreement or consensus around which we could rally a two-thirds majority.

At the risk of taking a copyrighted story of my friend, the Senator from North Carolina [Mr. ERVIN], I should like to pay him the compliment of repeating one of his typical examples which he gave in the debate last year. I think this very adequately describes our problem. It tells the story, if the Senator from North Carolina recalls, of the dog that had a bone. He looked into the river and saw there the reflection of another dog · who also had a bone. He thereupon reached down and dropped his bone into the river, and as a result he did not have anything. This is the quandary in which we in Congress have been driven. Everyone has insisted on his own ideas. Senate Joint Resolution 1 is not my own amendment. It is not the amendment of any of the 70-odd cosponsors of different measures. It is theresult of many hours of work and effort. Many Senators are to be complimented. The American Bar Association is to be complimented.

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

Mr. BAYH. I yield.

Mr. ERVIN. In addition to the Aesop fable about the dog with the bone, a very apt adage is that "Too many cooks spoil the broth."

A multitude of amendments were offered along this line in seeking to take care of the situation. I introduced an amendment myself. I thought it was rather good. But I think the reason why we have progressed as far as we have in this matter is that the Senator from Indiana [Mr. BAYH] recognized that too many cooks can spoil the broth. If we try to get everything to accord with our own notion, we get nothing. The Senator has recognized the need for clarification of a constitutional question. As a result of his fine example in that respect, other members of the Subcommittee on Constitutional Amendments and members of the full Committee on the Judiciary have been influenced by his example and have sacrificed their individual views in an attempt to get some proposal that would recognize the problem, the necessity for a solution to the problem, and also that there must be a good deal of give and take.

I ask the Senator if one of the great problems which was before the committee-was not the question whether, in case of a vacancy, the Vice President would be appointed by the President for the sake of continuity in administration, or whether he should be elected by Congress for the sake of having some voice exercised by the representatives of the people in the selection of a Vice President.

Mr. BAYH. The Senator is correct. Those are two of the possibilities. As the Senator well recalls, two such proposals were before the Subcommittee on Constitutional Amendments. It was the opinion of the subcommittee, plus that of the American Bar Association in their consensus group, and the full Committee on the Judiciary, that by combining both p::-esidential a . and congressional action, we were doing two things. We were guaranteeing that the President would have a man with whom he could work. We were also guaranteeing to the people ' their right to make that decision.

Mr. ERVIN .. If my recollection serves me correctly-and if it does not, the Senator from Indiana can correct me because he has given great study to this measure-one of the things that former President Eisenhower emphasized was the necessity of having continuity of administration: through a Vice President who was a member of the same party as the President. He laid more stress on that than on any other one thing in his advocacy of congressional action.

Mr. BAYH. The Senator is correct. As the Senator well knows, President Eisenhower who, more than any other living American, has had to deal with the problem of presidential inability, laid particular stress on the fact that this is a particular responsibility which the Vice President cannot escape.

Mr. ERVIN. The Senator from Indiana will recall that I introduced an amendment to provide · not only for the election of the Vice President by Congress, but also for the selection by Congress on the theory that Congress was composed of representatives of the peo­

Mr. BAYH. The Senator is correct. The Senator from Indiana felt it to be important that we should get a plan which would work, rather than any particular plan.

Mr. ERVIN. Mr. President, I ask the Senator from Indiana if the committee, after studying the proposals from both inside and outside of Congress, did not finally come to the conclusion that the best thing to do to reconcile these differences and give added protection to the people would be to let the Vice President be nominated by the President, so that there would be continuity of administration in the man who might be sent 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 being a dictator, it was necessary that the nomination should be confirmed by the Senate?

Mr. BAYH. The Senator is correct. As the Senator pointed out in committee, there is some precedent, although not exactly on point, in the advice-andconsent provisions that the U.S. Senate has in dealing with executive appointments, and the great power that the President has to nominate his own Vice President in our convention.

Mr. ERVIN. This is really a conciliation of divergent views to facilitate the presentation of the amendment and give us assurar.ce that the President will nominate the man and Congress will elect him, thus insuring that he would be a good, capable man who could cooperate with the administration.

Mr. BAYH. The Senator is correct.

Mr. ERVIN. I was interested in the colloquy engaged in by the senior Senator from Louisiana and the Senator from Indiana a moment ago with reference to the power of Congress. Does not the Senator from Indiana agree with the Senator from North Carolina that it would devolve upon Congress to designate the succession to the Vice-Presidency, and then to the Presidency, that necessarily we cannot designate individuals, but would have to designate the occupants of the particular offices, as we have always done in times past?

Mr. BAYH. The Senator is correct.

Mr. ERVIN. It would be conceivable, while that situation does not exist at the present moment under the succession statute, that the office of Vice President or President, under such a succession, could fall upon a man who was not qualified for the position.

Mr. BAYH. The Senator is correct.

Mr. ERVIN. He might be a man in whom the people would not have confidence.

Mr. BAYH. The Senator is correct.

Mr. ERVIN. And so, instead of having the man arbitrarily determined, regardless of what his particular qualifications for the Vice-Presidency might be, this resolution would allow the selection to be made when the vacancy actually occurs; and then conceivably, of course, the President and Congress together could select the best qualified man.

Mr. BAYH. I am of the opinion that, with the provisions to which the Senator has referred, we would have a President who would be under close public scrutiny, when the main ingredient for consideration would be the qualifications of the man to succeed in that office.

Mr. ERVIN. Does not the Senator from Indiana agree with the Senator from North Carolina that the proposed amendment provides the most practical and workable solution of this problem, in that when the President is mentally capable of recognizing his disability, it provides a very easy and painless process by which that disability can be established?

Mr. BAYH. I believe this measure is as close as we are going to come to a workable plan.

Mr. ERVIN. In addition, in the adversary procedure, a majority of the members of the Cabinet must take action, and that action is subject to review by Congress.

Mr. BAYH. In essence, this action would have to be taken twice by the Vice President and Cabinet. I point out that the members of the Cabinet have been appointed by the President. They are friends of the President. They would be seeking to establish disability. They would make the declaration that the President was unable to perform his duties. He might make a declaration that he was able. The members of the Cabinet would have to make a second serious deliberation and declaration that he was unable to do so. Then two-thirds of the Congress would have to affirm that action. That is more protection than is given to a President in the event of impeachment, because it takes only a twothirds vote of the Senate to convict and a majority of the House to impeach, whereas in this particular instance action is required by two-thirds of both Houses of Congress.

Mr. ERVIN. That would take care of preventing a situation such as occurs in South Vietnam, where the government changes almost from day to day.

Mr. BAYH. That is correct.

Mr. ERVIN. Is it not true that the requirement of a two-thirds vote prevented a tragic event in our history, when it was attempted to convict President Johnson? ' The impeachment failed by one vote because the Constitution provided for a two-thirds vote to convict. It would have been a tragic event if President Johnson had been convicted because only a majority vote instead of a two-thirds vote had been required.

Mr. BAYH. There have been many. occasions when Congress has been controlled by one party and the President has been a member of the opposite party. Most Congresses would not attempt toremove a President because of political expediency, but let us be certain that we do not tempt some future Congress. Let us require a two-thirds vote for such action.

Mr. ERVIN. Is it not true that recommendations have been made for some action to be taken by a constitutional amendment to clarify this subject by both former President Eisenhower and Vice President Nixon, who was confronted with the problem of presidential disability during President Eisenhower's administration; also, was it not recommended by the late President John F. Kennedy, and is it now not recommended .. by President Johnson?

Mr. BAYH. In all honesty, I do not have the record of the late President Kennedy's position on this question. I know of no statement he made publicly. But everyone else to whom the Senator has referred is on record. We have written testimony in the committee hearings from both the former President and Vice President, as well as the present President and Vice President.

Mr ERVIN. I thank the Senator for yielding. I commend him for the work he has done as chairman of the Subcommittee on Constitutional Amendments and for bringing this measure to the floor of the Senate. It is due more to his effort than that of the other members of the committee that the proposed legislation is in as fine a form as it is.

Mr. BAYH. I thank the Senator from North Carolina for his kind remarks. Much as I appreciate them, I do not believe I deserve that praise. It has been my responsibility as chairman of the Subcommittee on Constitutional Amendments and author of one of these measures to try to work out a solution. It would have been impossible to get as far as we have gone if it had not been for the help of Senators who have studied this problem over a longer period of years than I have. Many of our colleagues had measures which they were willing to forgo in order to come to a consensus. There may have been times in the history of our country when the health of a particular President at a given hour was not of international importance, or when the existence of an able-bodied Vice President was not of international importance, when the pigeon was our most rapid means of communication, when horse-drawn caissons were one of the prime ingredients of an artillery unit. Perhaps it would not have been too bad in those days, but now we can move armies halfway around the world in a matter of hours, and we can destroy our entire civilization in a matter of minutes. I believe it is imperative that we take some action. This has been a give and take and we have come up with a consensus. History has been trying to teach us a lesson. I suggest that we try to learn from that lesson. We should accept this measure and send it to the State legislatures.

Mr. ELLENDER. Mr. President, will the Senator yield for a question?

Mr. BAYH. I yield.

Mr. ELLENDER. The distinguished Senator from Indiana has stated that he placed a great deal of confidence in the members of the Cabinet and in their being able to act. Why the provision in the joint resolution for some other body to pass upon this matter? Why bring Congress into it, since the Senator wants to make it more or less definitive? Why not make it specific that the Cabinet, by a majority, and the Vice President shall decide the question? Why is it necessary to put it in the hands of Congress by giving Congress the right to appoint a body which it might see fit to select?

Mr. BAYH. That provision was included in the original measure as a result of the consensus for which we have striven. I hope Congress will pass upon it but I am certain that the Senator will admit that Congress is not infallible. We cannot foresee all contingencies. We do not know whether the Cabinet will reach an insurmountable obstacle. This measure · provides that some other body in the future can be provided for, giving it some flexibility.

Mr. ELLENDER. Does the Senator mean that if a majority of the Cabinet could not act and choose, Congress would then provide for the selection of a group which might do so?

Mr. BAYH. If the Cabinet approach proved unworkable, Congress could provide another body. This would have to be done · by law, and the Congress would have to override a veto, if there were one.

Mr ELLENDER. Suppose the Vice President is not in accord with the Cabinet members, does the Senator believe that if Congress tried to provide a separate body, as this recommendation indicates, the Vice President might be tempted 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 understand the Senator's question, because the decision has already been made.

Mr. ELLENDER. But the Senator, as I understand it, has not been specific. Evidently this provision has been submitted to satisfy some Senators or someone who favors the bill.

Mr. BAYH. The feeling is that we need a degree of flexibility so far as that particular part of the bill is concerned.

Mr. ELLENDER. When would such a body be selected by Congress? Under what conditions could the Congress act?

Mr. BAYH. At any time the Congress felt that the Cabinet was serving as an arbitrary obstacle to what was in the best interests of the Nation, namely, the President was obviously deranged, yet the Cabinet would not cooperate with the Vice President-! suppose it could, and it could attempt to establish another body.

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

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

Mr. ELLENDER. I presume that the acting President would have the right to veto the measure?

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

Mr. ELLENDER. Suppose the Vice President acts with the Cabinet, and he is in favor of what the Cabinet does, and Congress should pass such a measure, he could veto it?

Mr. BAYH. He could veto it; that is correct.

Mr. ELLENDER. Does not the Senator believe that the Vice President would be tempted to do it, if he is not in agreement with the decision reached by the Cabinet?

Mr. BAYH. The only time that Congress would provide another body would be when it was in disagreement with the Vice President, I would think. If the Vice President is in office, if he has assumed the powers and duties as Acting President, he must have acted in agreement with the Cabinet. Then the Congress would have to feel that the Cabinet or the Vice President acted wrongly, would it not, and that the Vice President should not be there.

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

Mr. ELLENDER. As I understoOd the Senator a while ago, he wished to make this resolution cover all and leave Congress out. As I stated a while ago, it would seem to me that Congress has the right or the power to do everything that this resolution provides, except the method of selection of a Vice President. I am surprised that the resolution should bring in the Congress to be able to create a body in the event of disagreement between Cabinet and Vice President.

Mr. BAYH. It is entirely a different set of circumstances, it seems to me, although I have no objection to Congress dealing with it. Presently, I do not feel that it has the constitutional authority. I am suggesting and the resolution is suggesting that Congress should be kept in as a check and a balance.

Mr. President, at this point I should like to yield briefly to the Senator from Illinois [Mr. DIRKSEN].

Mr. DIRKSEN. I thank the Senator from Indiana for yielding to me.

Mr. President, I should like to submit amendment No. 33, and ask that it be stated.

The PRESIDING OFFICER (Mr. HARRIS in the chair) . The amendment will be stated for the information of the Senate.

The LEGISLATIVE CLERK. It is intended to be proposed by Mr. DIRKSEN as a substitute for the language of Senate Joint Resolution 1:

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-

. "In case of the removal of the President from office or of his death or resignation, the said office shall devolve on the Vice President. In case of the inability of the President to discharge the powers and duties of the said office, the said powers and duties shall devolve on the Vice President, as Acting President until the inability be removed. The Congress may by law provide for other cases of removal, death, resignation, or inability, of either the President or Vice President, declaring what officer shall then be President or Vice President, or in case of inability, act as President, and such officer shall be or act as President accordingly, until a President shall be elected or, in the case of inability, until the inability shall be earlier removed. The commencement and termination of any 1nab111ty shall be determined by such method as Congress may by law provide."

Mr. DIRKSEN. Mr. President, I shall not discuss the amendment at this moment. I am grateful to the Senator from Indiana [Mr. BAYH] for permitting me to offer it at this time. It is actually a substitute for the entire proposal that comes from the committee.

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

Mr. BAYH. I yield.

Mr. SIMPSON. Mr. President, let me first of all compliment the able and distinguished junior Senator from Indiana [Mr. BAYH] for a very fine presentation with respect to this all important subject. Mr. President, as a cosponsor of this proposed legislation, the record has been filled with interesting materials on the history of this Nation which clearly shows the need for complete and adequate laws regulating the succession to the office of the President of the United States. A great many Members of Congress have made reference to the days of President Eisenhower's illnesses and the questions that arose during that time about the authority of the office of the President and the responsibilities of the Vice President.

In earlier history, the administrations of Presidents Garfield and Wilson were challenged by the same questions. Fortunately, the Nation was permitted to endure these times of crisis and has grown and prospered in spite of the inadequacies and doubts that we have concerning the highest office in the land. Directly relating to the problem of Presidential inability is that of a vacancy in the office of Vice President. That office has been vacated 16 times in the Nation's history for a total period of 38 years.

In past years, the office of Vice President was subject to more ridicule than respect, but such is not the case today. Vice President Richard Nixon brought a new respect to the office because of the yeoman service that he gave to the Nation and to the world. The Vice President is the possible successor to the Nation's highest office. He has many responsibilities. I feel there is ample evidence that the · united States needs a Vice President at all times. I believe that the constitutional proposal we are discussing today sets forth a reasonable and complete plan for providing for Presidential inability and vacancies in the office of Vice President.

I am pleased to have been a cosponsor of this proposed constitutional amendment, both in the 88th and the 89th Congresses. As indicated, the need for this type of action is long overdue. Unfortunately, it was not until the tragedy of November 1963, that we realized the possible consequences of not having a clear and adequate plan for succession to our executive offices.

Many of the great legal minds throughout the country have studied this proposed constitutional amendment and I believe, for the most part, are in full support of it. It is the simplicity of the proposal that gives it strength and, thus, makes it appealing.

The first section of the resolution provides that the Vice President will become

President in the case of death or resignation of the President. When there is a vacancy in the office of the Vice-Presidency, the President is to nominate a Vice President who will take office upon net. confirmation by a majority vote of both Houses of Congress.

Section 3 provides that if the President declares in writing that he is unable to discharge the powers · and duties of his office, the Vice President shall act as President.

Under the terms of this proposed constitutional amendment, the Vice President and the majority of the Cabinet members can determine the President to be disabled. If the President disputes the decision of the Vice President and the Cabinet members, Congress will decide the issue.

Seldom does the Senate agree unanimously on a problem of such magnitude and importance as is this proposed constitutional amendment on presidential inability and vacancies in the office of Vice President, but last year when we considered the matter, there was not a dissenting vote. . ·

It is my hope that this proposal will receive the approval of Congress and the necessary States so that the people of America can be assured that we will have a leader to deal with any crisis that may arise. I am proud to support this proposal.

Mr. BAYH. I thank my colleague, the distinguished Senator from Wyoming [Mr. SIMPSON], for his articulate presentation.

Mr. STENNIS. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator from Mississippi will state it.

Mr. STENNIS. Does the Senator from happen. Indiana have the floor?

The PRESIDING OFFICER. The Senator from Indiana [Mr. BAYH] yielded to the Senator from Wyoming [Mr. SIMPSON].

Mr. BAYH. Mr. President, I have finished my presentation. I am ready to accept any questions SenatOrs may wish to ask.

· Mr. TYDINGS. Mr. President, will the Senator from Indiana yield?

Mr. BAYH. I yield.

Mr. TYDINGS. One of the points made by the distinguished Senator from Louisiana [Mr. ELLENDER] questioned · the language in section 4, which reads as follows:

Whenever the Vice President, and a majority of the principal officers of the executive department of such other body as Con ..: gress may by law provide-

This seems to be one of the phrases which was providing some concern to the · Senator from Louisiana [Mr. ELLENDER].

My recollection of the committee hearings is that the reason for inserting the language "principal officers · of the executive department or such other body as Congress may by law provide" was occasioned by the history of the development of our Cabinet. Originally the Cabinet consisted of four members. Subsequently, it was enlarged. Today the Cabinet consists of 10 members. · It was felt that perhaps in another year or two Congress might create a new post in the Cabinet. Congress might feel that the Chairman of the National Security Council or some other important official ought to be included in the CabiTherefore, we wanted to provide a little flexibility in the constitutional amendment, so that Congress could adjust the circumstances as it wished.

That is my recollection of the princi­ out. pal reason why this language was placed in the joint resolution.