February 19, 1965 (4)

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 Vice-Presidency and to cases where the President is unable to discharge the powers and duties of his offi.ce.

Mr. BAYH. Mr. President, I wish to yield to the distinguished Senator from Hawaii [Mr. FONG].

Mr. FONG. Mr. President, as . a cosponsor of Senate Joint Resolution 1 and as a member of the Judiciary Subcommittee on Constitutional Amendments, I should like to compliment and highly commend the distinguished junior Senator from Indiana for his dedication, hard work, diligence, and constant effort in drafting and guiding this critically important legislation through the sub- ~ committee and the · Judiciary Committee.

The Senator from Indiana has certainly done yeoman service in this regard and has given the subject long, deep, and scholarly thought. He has listened with great patience to the advice and counsel of the country's out- . standing political scientists and other leading experts in this matter. He has forged a proposal from these considerable resources and has produced an outstanding document that is a practical and workable solution to the problems of presidential disability and vice-presidential vacancies.

The joint resolution before us is therefore a product of considerable thought and effort and represents a consensus of many proposals.

Two years ago, the tragic assassination of President Kennedy pointed up once again the urgent need to resolve these two critical gaps in the U.S. Constitution.

F-irst. The Constitution does not say anything about what should be done when there is no Vice President. No one in America today doubts that the Vice President of the United States today carries very vital functions of our Government.

He is the President's personal representative and emissary; he is a member of the Cabinet; Chairman of the National Aeronautics and Space Council; member of the National Security Council; head of the President's Committee on Equal Employment Opportunity; and he · takes part in other top-level discussions which lead to national policymaking decisions. The modern trend toward the increasing · importance of the Vice-Presidency began with President Franklin D. Roosevelt. President Eisenhower furthered this trend greatly in assigning Vice President Nixon many duties of critical importance, and President Johnson has made it very clear that he intends to make it an even more important office. Ever since Vice President John Tyler took over the Presidency in 1841, when . President William Henry Harrison died, this precedent has been confirmed on seven occasions. Vice Presidents Fillmore, Andrew Johnson, Arthur, Theodore Roosevelt, Coolidge, Truman, and Lyndon Johnson all became President in this manner.

Besides his many duties, the Vice President is the man who is only a heartbeat away from the world's most powerful office.

Yet, on 16 different occasions in our history the Nation has been without a , Vice President.

The security of o~r Nation demands that the office of the Vice President should never be left vacant for long, such as it was between November 22, 1963, and January 20, 1965.

Second. The Constitution does not say anything about what should be done when the President becomes disabled, how and who determines his disability, when the disability starts, when it ends, who determines his fitness to resume his office, and who should take over during the period of disability.

In short, there is no orderly constitutional procedure to decide how the awesome and urgent responsibility of the Presidency should be carried on.

Third. The Constitution also is unclear as to whether the Vice President . would become President, or whether he becomes only the Acting President, if the President is unable to carry out the duties of his office. ·

These are very closely related problems, since they involve the devolution and orderly transition of power in times of crisis.

Mr. President, as a member of the Subcommittee on Constitutional Amendments, I have studied very carefully all the various proposals submitted by other Senators during the 88th Congress and in this current session of the 89th Congress. I have considered the 'testimony submitted to the subcommittee in previous hearings, including those of the distinguished experts who have testified. I have read the data collected and have read the research done by the subcommittee's staff. .

I believe that any measure · to resolve these . very complex and perplexing problems must satisfy at least four requirements:

First. It must have the highest and most authoritative legal sanction. It must be embodied in an amendment to the Constitution.

Second. It must assure prompt action when required to meet . a national crisis. Third. It must conform to the constitutional principle of separation of powers. Fourth. It must provide safeguards against usurpation of power.

I believe Senate Joint Resolution 1 best meets each of these requirements.

Senate Joint Resolution 1 deals with each of the problems of vice-presidential vacancy and presidential inability by constitutional amendment rather than by statute.

Mr. President, on this legal controversy, well-known legal authori-ties have argued persuasively on both sides of this question. At issue is the interpretation of the "necessary and proper" authority of article I, section 8, clause 18-Does Congress have the power to legislate with respect to the question of vacancy · and inability?

Recently there appears to have been a strong shift of opinion favoring a constitutional amendment over the statutory approach. Two past Attorneys General-Herbert ' Brownell and William Rogers-and the present Attorney General Nicholas Katzenbach, the American Bar Association, and many other State and local bar associations say a constitutional amendment is necessary.

The most persuasive argument for an Cabinet. amendment is that so many legal questions have been raised about the authority of Congress . to act on these subjects, that any statute on these subjects would be open to criticism and challenge at the most critical time--when a President dies in office; when a President had become disabled; and when a President sought to recover his office.

We must not gamble with the constitutional legitimacy of our Nation's executive branch. When a President or Vice President of the United States assumes his office, the entire Nation and the world must know without doubt that he does so as a matter of right. Only a . constitutional amendment can supply this necessary legitimacy.

With respect to the problem of vicepresidential vacancies, Senate Joint Resolution 1 provides for the selection of a new Vice President when the former Vice President succeeds to the Presidency within 30 days of his accession to of. fice; the selection is to be made by the President, upon confirmation by a majority vote of both Houses of Congress. I believe this is sound.

The vice-presidential office, under our system of government; is tied very closely with the Presidency. The extent to which the President takes the Vice President into his confidence or shares with him the deliberations leading to executive decisions is largely determined by the Pr . President.

Another important reason for allowing the President to nominate a Vice President is that the close relationship between the President and Vice President will permit the person next in line to become familiar with the problems he will face should he be called on to assume the Presidency.

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

Mr.FONG. !yield.

Mr. SALTONSTALL. Is it not also true that a Presidential nomination of a Vice President to succeed him should presumably be of one of the same party as the President?

Mr. FONG. Yes. The President must work closely with the Vice President. He is a very close confidant of the President. The Vice President would succeed the President, and he should be of the same political party.

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

Mr. FONG. And, therefore, the President should nominate him, and the Congress should have the right to confirm his nomination by a majority vote. Senate Joint Resolution 1 provides precisely these points.

The bill proposes what I believe to be a practical solution to a practical probWith respect to the problem of presidential disability, Senate Joint Resolution 1 makes clear that when the President is disabled, the Vice President becomes Acting President . for the period of disability. It provides that the President may himself declare his inability and that if he does not, the declaration ma'y be made by the Vice President with written concurrence of a majority of the The determination of presidential inability by the Cabinet-along with the Vice President-is sound. It is reasonable to assume that persons the President selects as Cabinet officers are the President's most devoted and loyal supporters who would naturally wish his continuance as President.

The Vice President and the Cabinet are a close-working unit, having a daily relationship with the President. They are in the past position to assess the President's capacity to perform his duties and functions.

In addition, a majority; of the Cabinet usually are members of the President's political party. , They, would be the last to declare his inability to carry out the duties of his - office if he were able to do so.

Senate Joint Resolution 1 provides that the President may declare his own fitness to resume his powers , and duties, but if his ability is questioned, the Cabinet by majority vote and the Congress by a two-thirds vote of both Houses resolve the dispute.

These provisions of Senate Joint Resolution 1 not only achieve the goals I outlined earlier, but they are also in consonance with the most valued principles established by our Founding Fathers in the Constitution.

They observe the principle of the separation of powers in our Government. They effectively maintain the delicate balance of powers among the three branches of our Government. Most important of all, they insure that our Nation's sovereignty is preserved in the hands of the people through their elected representatives in the National Legislature.

Several amendments to Senate Joint Resolution 1 have been proposed which in substance place back into the hands of the Congress many of the problems we have been discussing.

It is my considered judgment that these amendments will serve only to leave these critical questions unanswered-and we would not have accomplished what we intended to accomplish under Senate Joint Resolution 1.

I believe that these amendments should be voted down.

Mr. President, this is the first time since 19&6, when a full-scale congressional study of the problems was conducted, that wide agreement has been reached on these vastly complex constitutional problems.

Last September, a measure similar to Senate Joint Resolution 1 was passed by the Senate by the overwhelming vote of 65 to 0. It was sent to the House, but Congress adjourned before any further action could be taken.

Last January, at the call of the American Bar Association, a dozen of the Nation's leading legal authorities meeting in Washington came up with a consensus, which is essentially embodied in the provisions of Senate Joint Resolution 1. This consensus was subsequently endorsed by the ABA house of delegates.

I understand that Senate Joint Resolution 1 is being cosponsored by a bypartisan group of 77 Senators.

I am most delighted and pleased to cosponsor this proposal with the very distinguished and able junior Senator from Indiana [Senator BayH]. As one who ' has worked closely with him on this joint resolution, I know that he has worked hard to draft and guide it through the Subcommittee on Constitutional Amendments and the full Judiciary Committee. Mr. President, I highly commend Senate Joint ResolUtion 1 to the Senate as a meritorious measure that should be enacted promptly into law.

Mr. SALTONSTALL. Mr. President, will the Sena--tor from Hawaii yield?

The PRESIDING OFFICER

MoNTOYA in the chair) . . Does the Senator from Hawaii yield ta the Senator from Massachusetts? , ·,

Mr. FONG. I am glad to yield to the • Senator · from Massachusetts.

Mr. SALTONSTALL. What the Senator has said in substance is that Congress should act now on this subject, that it should act by constitutional amendment, and that the constitutional amendment should be specific in its terms rather than general, in order to leave future actions to future Congresses to supplement it.

Mr. FONG. The Senator is correct. We have been working on these problems for a long time, but have not been able to come up with a substantively sound proposal. Now, we have such a proposal in Senate Joint Resolution 1, . which is specific in its terms, in order to leave no doubt as to the devolution and orderly transition of power, and the constitutional legitimacy of our Government. I believe that the various amendments which have been proposed to give the Congress statutory power to act on these problems will only lead us back to where we started.

The resolution of these problems are much too critical to leave for future statutory action, and, like the problem of presidential succession, be the subject of political decision.

I believe that we should pass Senate Joint Resolution 1 now, because it is statesmanlike and the very best possible solution to critical problems and will specifically deal with the problem as we wish it to be dealt with.

Mr. SALTONSTALL. The Senator would deal with the problem by a constitutional amendment rather than by statute.

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

Mr. BAYH. Mr. President------2-

The PRESIDING OFFICER

HARRIS in the chair). The Senator from Indiana.

Mr. BAYH. Mr. President, I compliment the Senator from Hawaii [Mr. FoNGJ on his well-defined statement, in which he covered all the principal · points, and in which he stressed the need for the Senate to join behind the consensus of the experts, feeling that we have the best proposal before the Senate now, and that if we spend more · time searching for that which is perfect it will become a search for the imp ' impossible. We are solving the two ' key problems which have confronted u~namely, vice-presidential vacancies and the disability of a President; and if we solve these two problems, we can solve the other problems at a later date.

I compliment the Senator and thank him for the cooperation he has given the subcommittee, as well as for the personal sacrifice he made to be in the Chamber this afternoon to participate ,in this debate.

Mr. FONG. I thank the Senator from Indiana. He . has been working hard on this measure. It is through his dedication that · the joint resolution is now before the Senate. This has not been . an easy resolution to arrive at. The Senator from Indiana and the other members of CMr. the committee have worked very hard on it. They have given it deep . thought. We have listened to the experts on the subject, and this is the best possible solution that we can suggest. I believe that it is a completely workable and practical solution to the two key problems.

Mr . SCOTT. Mr. President, will the Senator from Hawaii yield?

Mr. FONG. I yield.

Mr. SCOTT. Mr. President, I rise in support of Senate Joint Resolution 1, but first, I commend the distinguished Senator from Hawaii for the fine presentation he has made, and for the scholarship which is evident in his exposition.

Let me say, for my part, that · I shall support the proposed Dirksen substitute for Senate Joint Resolution 1 because I believe it to be simpler, wiser, and more farsighted on a long-range basis to leave to Congress the discretion to prescribe, by statute, procedures for the transfer of the President's powers and · duties in the case of presidential inability.

It occurs to me that one illustration as to why Senate Joint 1 should leave this discretion to Congress is that there is no provision in Senate Joint Resolution 1, as reported to the Senate, that deals with the inability of a Vice President to perform his duties. If a Vice President dies or resigns, there is a provision for filling the vacancy. Let us suppose, however, that the Vice President suffers from an inability. It would be rather awkward, it seems to me, to overburden the Constitution with procedural details, better · and more flexibly prescribed by statute, in an effort to foresee and imagine every possible - eventuality and to meet every conceivable contingency.

Yet, · with the increased importance of the office of Vice President, the contingency of the Vice President's inability becomes a significant considera­ <Mr. tion and Congress could take care of it by law, as it would be permitted to do under the broader language of the Dirksen amendment.

I am an original cosponsor of Senate Joint Resolution 1, but subsequent study of the Judiciary Committee's hearings and report, particularly the views expressed . therein by my distinguished minority leader, has persuaded me to accept the Dirksen amendment.

However, if the Dirksen amendment should not be adopted, I revert, then, to my desire to see a workable proposal adopted, one which will be at least as wisely considered and prepared as Senate Joint Resolution 1, sponsored by the distinguished Senator from Indiana [Mr. BayH]. I would, then, as a cosponsor, support Senate Joint Resolution 1.

Mr. President, the tragedy which this Nation witnessed only 15 months ago brought most forcefully to our attention once again the striking absence in the Constitution of appropriate provision for continuity of presidential leadership. In this era of recurring crises at home and abroad, it is imperative that at no time should there be any doubt in anyone's mind as to who is exercising the powers and duties of the Presidency. That is the - central issue we are dealing with today in Senate Joint Resolution 1.

This measure, of which I am honored c to be a cosponsor, provides a workable means of assuring continuity of presidential leadership. It recognizes the very distinct nature of the two exigencies-death and inability-under which the Nation may lose the leadership of its President, and it proVides suitable solutions for each of these peculiarly different situations.

The uncertainty concerning the legiti­ country: macy of our traditional method of providing for presidential succession, which is prompted by the existing vague constitutional language, would be removed. The · addition of language proViding for the filling of vacancies in the office of the Vice President, which occur upon the death, resignation, or removal of the President, would assure the Nation that it will always have a Vice President ready and able to assume the office of President or exercise the powers and duties of that office should the occasion arise.

Provision of continuity of presidential leadership is an urgent need that must be met now. There is widespread support for Senate Joint Resolution 1, and the climate for early ratification of this measure by the States seems to be favorable. Let us therefore promptly approve it.

Before closing, Mr. President, let me heartily commend the junior Senator from Indiana for his thorough study and diligent efforts in drafting Senate Joint Resolution 1, and for bringing it to the floor of the Senate. And I thank the Senator from Hawaii for giving me this opportunity to express my views.

Mr. FONG. I thank the Senator for his compliments. In answer to his questions, let me say that the Dirksen amendment would leave us almost in the same position as that from which we started. Many questions will still remain unan- . swered. If · something should happen to the Vice President, we would not have the answer to that problem. It does not militate against Senate Joint Resolution 1. At present, no one succeeds to the position of Vice President if a Vice President succeeds to the office of President. I believe that if we take one step at a time, we shall accomplish what we are trying to accomplish. I believe that the present resolution is workable and practical.