February 19, 1965 (5)

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 o:flice.

UNANIMOUS-CONSENT AGREEMENT

Mr. MANSFIELE>. Mr. President, I am about to propound a unanimous-consent · request.

I ask unanimous consent that 1 hour for debate be allowed on the Dirksen substitute, to be equally divided between the sponsors of the substitute and the Senator in charge of the joint resolution on the floor of the Senate, the Senator from Indiana [Mr. BAYH] ; that an hour for debate be allowed on each amendment, the time to be divided between the sponsors of the amendment and the Senator from Indiana [Mr. BAYH] ; and that 2 hours for debate be allowed on the joint resolution, to be equally divided.

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

The unanimous-consent agreement, subsequently reduced to writing; is as follows:

UNANIMOUS-CONSENT AGREEMENT

Ordered, That the further 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 were the Presiden't is unable to discharge the powers and duties of his office, debate on any amendment, motion, or appeal, except a motion to lay on the table, shall be limited to 1 hour, to be equally divided and controlled by the mover of any such amendment or motion and the Senator from Indiana [Mr. BAYH]: Provided, That in the event the Senator from Indiana is in favor of any such amendment or motion, the time in opposition thereto shall be controlled by the minority leader or some Senator designated by Ordered further, That on the question of the final passage of the said joint resolution, debate shall be limited to 2 hours, to be equally divided and controlled, respectively, by the majority and minority leaders: Provided, That the said leaders, or either o! them, may, !rom the time under their control on the passage o! the said joint resolution, allot additional time to any Senator during the consideration o! any amendment, motion, or appeal.

Mr. DIRKSEN. Mr. President, I yield 5 minutes to the Senator from Kansas.

Mr. CARLSON. Mr. President, in my opinion, one of the most important pieces of legislation to be considered by this session of Congress is the pending joint resolution regarding presidential succession and presidential disability.

I commend the distinguished Senator from Indiana [Mr. BAYHJ and the members of the subcommittee of the Judiciary Committee and the Judiciary Committee for having devoted so much time to the hearings and the preparation of the joint resolution.

For the best part of two centuries, the Congress of the United States has not dealt effectively with the dual problems of vice-presidential vacancies and presidential disabilities. Sixteen times, over a period in excess of 37 years, this Nation has been without a Vice President. President Garfield lay for 80 days unable to perform the powers and duties of his office-President Wilson was disabled for 16 months-President Eisenhower had three serious disabilities. Fortunately, the country was not confronted by an international crisis during any of these periods. We must not take for granted that history will continue to treat us so ity. kindly.

Over the years, Congress has studied these dual problems at great length. The main reasons for the lack of solution are the inability to arrive at a consensus and the unwillingness of individual Members of Congress to amend their own personal views in order to arrive at a workable plan which could receive two-thirds vote in each House of Congress. A great deal of effort has gone into the consensus embodied in Senate Joint Resolution 1-the American Bar Association, the Committee on Economic Development, legal scholars, constitutional lawyers and members of the executive and legislative branches of the Government have worked together to develop a workable solution. The main problem confronting Congress is writing a constitutional provision which would assure no break in the exercise of the presidential power. More than that, no doubt should be permitted to arise as to who holds the office.

In addition to these two requirements, the procedure for transferring of power should be fast, efficient, and easily understood.

The Senate Judiciary Committee has spent days taking testimony of able and qualified individuals, discussing every phase of this subject.

From the beginning of our Nation, we have been without a Vice President in excess of 20 percent of the time.

The preponderance of testimony has declared that these problems must be solved by constitutional amendment. They are of sufficient importance to our country to be embedded in the bedrock law of the land-the Constitution. Some of those supporting this contention have been President Lyndon Johnson, Vice President HUBERT HUMPHREY, former President Dwight Eisenhower, Attorney General Nicholas Katzenbach, former Attorney General Herbert Brownell, former Attorney General William Rogers, the American Bar Association's House of Delegates by a unanimous vote, president of the American Bar Association, Lewis Powell, and immediate past president of the American Bar Association, Walter Craig.

Opinion is divided as to whether Congress has authority to deal with the problem of disability. Any statute dealing with this problem would be subjected to constitutional challenge in the courts at a time of grave national crisis when action and certainty, not inaction and doubt, were demanded by the national interest.

Sections 3 and 4 of this joint resolution deal with the very difficult problem of Presidential disability.

Section 3 . enables the President to declare his own disability to perform the powers and duties of his office and the Vice President to assume these powers and duties as Acting President. This provides for the eventuality that the President may be undergoing a serious operation or he himself feels seriously ill and feels that the best interests of the country dictate that he voluntarily should turn over the powers and duties of the Presidency to the Vice President for the tenure of the President's disabilSection 4 provides that, if the President is unable to declare his own disability, the Vice President and the majority of the Cabinet may do so, and the Vice President would assume the powers and duties as Acting President for the tenure of the President's disability. Thus, the country would be protected under such circumstances as a Presidential heart attack, which finds the Nation's Chief Executive under an oxygen tent when an effort is made to return missiles to Cuba.

The Vice President has the constitutional responsibility to act and the Cabinet, appointed by the President, serves as a sufficient protection against a power-hungry Vice President.

It is impossible for Congress to foresee every , eventuality that could incapacitate the President or his successors. Congress can, however, and I believe should, make every effort to remove the anxiety and apprehension that arises out of the uncertainties of the present law.

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

Mr. CARLSON. I yield.

Mr. BAYH. I compliment the Senator from Fansas on his statement, particularly the emphasis he placed on the fact that there has been much give and take, and that this is as close as we are likely to come to being able to nail down a final determination. The time for us to act has come. If we continue to postpone · this issue, we shall get further and further away from the horrible sequence of events which awakened public interest in this subject and it will recede further and further into the past.

The PRESIDING OFFICER. The time of the Senator has expired.

Mr. CARLSON. Mr. President, I stated at the beginning of my remarks that I felt the proposed legislation was one of the most important measures that would be considered by this session of the Congress. I sincerely hope that action can be taken on it at this session.

Mr. DffiKSEN. Mr. President, I yield myself 15 minutes.

The PRESIDING OFFICER. The Senator from Illinois is recognized for 15 minutes.

Mr. DIRKSEN. I am sensible of the urgency that is involved in connection with the proposal to amend the Constitution. Events in history such as what happened on the 22d of November 1963, the assassination of President Garfield, who signed only a single extradition paper while he lay in a virtual coma for 90 days, and the difficulty that the country encountered at the time President Woodrow Wilson was stricken, have from time to time reenergized this issue. I am quite aware of the desire to have something done and to have it done as quickly as possible.

However, I am rather sensible of an old line in the Book of Exodus:

Thou shalt not follow a multitude to do evil.

The word "evil" might mean "error," and it can be used in its broadest sense. I believe it has been pretty much of a rule in our constitutional history that we do not legislate in the Constitution. We try to keep the language simple. We try to keep it at a high level, and we offer some latitude for statutory implementation thereafter, depending upon the events and circumstances that might arise. For that reason I have submitted a substitute, which is extremely shortin fact, a single paragraph-which I believe would encompass the problem that confronts us, would meet virtually every exigency, and would leave in the hands of the Congress whatever legislation might be necessary.

Before I go further, I commend the distinguished Senator from Indiana [Mr. BAYH]. No one has been quite so diligent in pursuing this subject. The same statement can be made concerning the staff. The Senator has worked hard. He is anxious to obtain action in this body; and he hopes to obtain action in the other body so that the constitutional proposal can then go to the country.

The substitute which I have offered has been skeletonized so that there would be no ambiguities. There would be no holes of any kind. If there were. they could always be remedied by congressional enactment. The substitute provides merely that if the President is removed from office, if he dies, or for other reason leaves the office, the office of President shall devolve on the Vice President.

That subject has been controversial ever since Chester A. Arthur came into office, and, for that matter, even at the time William Henry Harrison died in office and was succeeded by a President who at the time was not sure whether or not he should accept the office or only undertake the duties and the responsibilities. . My substitute would make it pretty clear-and l believe it is true also that of Senate Joint Resolution 1-that in the tion 1. case of removal, death, or resignation, I the office would devolve on the Vice President. That is very simple, and the cause language would nail it down. .

But in the case of the inability of a posed President to discharge the powers and that duties of the office, the powers and duties would devolve upon the Vice President. For example, the President might be and alive. He might be incapacitated and But unable to discharge his responsibilities as President. So the office would not go devolve upon the Vice President, but gress, ' merely the powers and duties.

The Vice President would be desig- such nated as Acting President, and no more. be He would maintain that status until the could inability had been removed.

My amendment would further provide that-

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

There might be a situation in which both the President and the Vice Presi- been dent would be disabled. There might be a situation in which the Vice President on WOUld be disabled, but the President II. would be in possession of his faculties and could carry on. In that event the Congress' under the proposed substitute, could enact a law to meet the situation tive which would arise under those circum- office stances · and would also be able to declare be what officer shall be President or Vice is President, in the case of inability, to act and as President; and such officer would be or act as President accor mg y,

That is rather broad language, but it first is designed to be broad. I believe it is in keeping with the language of the Constitution itself.

The amendment contains one other Seven further provision:

The commencement and termination of any dency. inability shall be determined by such method as congress may by law provide.

The distinction between the substitute and Senate Joint Resolution 1 is that office section 4 and section 5 of the joint reso- of lution provide in a little detail, at least, said what shall be done when there is an inability, if the President is disabled and first is not in a position to declare his inability. Then it would be up to the Vice President and a majority of the principal officers of the executive departments or ment. such other body as Congress may by law provide to transmit to the Congress written declarations that the President also was disabled; and the Vice President would immediately assume the powers they and duties of the office as acting President.

Mr. President, there might not be a on Vice President. How could he then join mond, with the principal officers of the execu- Post tive departments in transmitting amessage to the Congress?

The language of the joint resolution to iS as fOllOWS:

Whenever the Vice President and a majority of the principal officers transmit that tion message--

But if there is no Vice President, obviously we cannot fulfill the equations are carried in Senate Joint Resolution that one could point out some other defects that would give me some for concern. For that reason I believe that a measure of the kind proshould be broadly sketched, and ample latitude should be left for the Congress to act.

It is said that we must "nail it down” dispose of the matter forthwith.

if and when the proposal-and I am hopeful that a proposal of some kind will to the country-is disposed of by Conthe committees can begin to work at once upon legislation to implement a constitutional proposal. It could ready, and all the hearings and details be disposed of, as soon as the necessary number of States had ratified the amendment. Then it would not require more than a matter of days to enact the necessary implementing legislation, so no time would be lost. We would always preserve the necessary latitude. For that reason, I think we ought to proceed on a broader base than we presently contemplate. That must have in the thinking of the President in connection with his message to Congress January 28. The President said:

VACANCY IN THE OFFICE OF THE VICE PRESIDENT

Indelible personal experience has impressed upon me the indisputable logic and imperanecessity of assuring that the second of our system shall, like the first office, at all times occupied by an incumbent who able and who is ready to assume the powers duties of the Chief Executive and Commander in Chief.

In our history, to this point, the office of the President has never devolved below the clearly prescribed step of constitutional succession. In moments of need, there has always been a Vice President; yet, Vice Presidents are no less mortal than Presidents.

men have died in the office and one has resigned, in addition to the eight who left the office vacant to succeed to the PresiIt is a question whether in the case of succession it would be possible under senate Joint Resolution 1 to fill that or not. So it would be something a departure from what the President about the indispensable need of having the second office as well as the office always occupied. With that general proposal, I fully agree.

There are other matters that I might present in connection with the amendI shall submit at this point a general statement on the general subject, and some questions that have been raised. I ask unanimous consent that may be printed at this point in the -RECORD, together with an article entitled "Bayh Amendment-Second Thoughts Disability," written by Roscoe Drumand published in the Washington of recent date.

There being no objection, the statement, questions, and article were ordered be printed in the REcorp, as follows:

STATEMENT BY SENATOR DIRKSEN

We have before us Senate Joint Resolution

1. It is a proposed amendment to the Constitution to meet the problem of presidential tnabllity and of vacancies in the office of Vice President.

1 commend the distinguished chairman of the Subcommittee on Constitutional Amendments. He has worked throughout his period of service on the committee on this problem. He has devoted a tremendous amount of time and energy to the issue and his work has helped to keep the issue before us.

It is a pressing domestic issue. It is not a new issue by any means. It has been before the Congress numerous times. It has been the subject of endless study by legislators, constitutional authorities, and others. All have sought to provide an answer, but no proposed solution has belm found that met the problem. Nonetheless, a solution must be found. We must contrive language that will solve the problem.

There are those who contend that no constitutional amendment is required, that the entire matter can be disposed of by legislation. I do not hold to this view although many distinguished scholars support it. Rather I share with our distinguished subcommittee chairman, our subcommittee, and the full committee, the view that a constitutional amendment is required.

The problem however is this: How do we fashion the amendment? Do we follow the advice of the Attorney General who says:

"Apart from that, the wisdom of loading the Constitution down by writing detailed procedural and substantive provisions into it has been questioned by many scholars and statesmen. The framers of the Constitution saw the wisdom of using broad and expanding concepts and principles that could be adjusted to keep pace with current need."

And do we follow the advice of another noted constitutional scholar, Martin Taylor, chairman of the Committee on Constitutional Law, New York Bar Association, who has been most active in this field and who urged tJl,e subcommittee only last year that: "In the first plan, you have a basic fundamental principle of constitutional law that any amendment should be simple. I am substantially quoting from John Marshall. It should not give detail. You see the error of that in a great many proposals because, as time goes by, there might be great disagreement as to the practicability of applying it under changed circumstances. So the fundamental [principle] that you give broad enabling powers in the Constitution is what you should rely on, changing, if you please, implementation with changing conditions."

That is the view I hold. Keep constitutional amendments simple. Leave the detail to implementing legislation _ ation which can be changed to reflect changing circumstances. Leave the Constitution as the basic document from which all authority flows, but do not attempt to detail the application to specific problems in the basic document itself.

And that is the difficulty with Senate Joint Resolution 1 as reported by the full committee with amendments. It was pointed out by the Attorney General when he was before the subcommittee. He said he had difficulty with the amendment. It was necessary for him to make a number of assUmptions in regards to the operation of the amendment. This should not be--the amendment should be clear and understandable.

What were the problems that the Attorney General had with the amendment? This is what he said:

"First, I assume that in using the phrase 'majority vote of both Houses of Congress' in section 2, and 'two-thirds vote of both Houses' in section 5, what is meant is a majority and two-thirds vote, respectively, , of those Members in each House present and , voting, a quorum being present. This interpretation would be consistent with longstanding precedent (see, e.g., ~ Missouri Pac. Ry. Co. v. Kansas, 248 v.s. 276 (1919)).

"Second, I assume that - the procedure established by section 5 for restoring the President to the powers and duties of his offi.ce is applicable only to instances where the President has been declared disabled without his consent, as provided in section 4; and . that, where the President has voluntarily declared himself unable to act, in accordance with the procedure established by section 3, he could restore himself immediately to ' the powers and duties of his offi.ce by de­ <llaring in writing that his inability has ended. The subcommittee may wish to consider whether language to insure this interpretation should be added to section 3.

"Third, I assume that even where disability was establish,ed originally pursuant to section 4, the President could resume the powers and duties of his Office immediately with the concurrence of the Acting President, and would not be obliged to await the · expiration of the 2-day period mentioned in section 5.

"Fourth, I assume that transmission to the Congress of the written declarations referred to in section 5 would, if Congress were not then in session, operate to convene the Congress in special session so that the matter could be immediately resolved. In this regard, section 5 might be construed as impliedly requiring the Acting President to convene a special session in order to raise an issue as to the President's inability pursuant to section 5 .

"Further in this connection, I assume that the language used in section 5 to the effect that Congress "will immediately decide" the issue means that if a decision were not reached by the Congress immediately, the powers and duties of the Office would revert to the President. This construction is sufficiently doubtful, however, and the term "immediately" is suffi.ciently vague, that the subcommittee may wish to consider adding certainty by including more precise language in section 5 or by taking action looking toward the making of appropriate provision in the rules of the House and Senate.

"In my testimony during the hearings of 1963, I expressed the view that the specific procedures for determining the commencement and termination of the President's inability should not be written into the Constitution, but instead should be left to Congress so that the Constitution would not be encumbered by detail.”

Did the action of the full committee in amending Senate Joint Resolution 1 correct the deficiencies pointed out by the Attorney General? Let us consider what he said before the full Judiciary Committee of the other body. He began observing that:

"As the committee well knows, the factual situations with which House Joint Resolution 1 is designed to deal are numerous and complex. Inevitably, therefore, some aspects of the proposal w111 raise problems of ambiguity for some observers. In order to assist in resolving any such ambiguity, I propose to set forth the interpretations I would make in several difficult areas so that the committee may consider whether clarification is needed." .

He ' then repeated the first observation that he made before our subcommittee regarding I · his assumption of the meaning of "majority vote." He then repeated his second observation regarding the procedure established by section 5 of Senate Joint Resolution 1, and then added:

"However, I note in this regard that the Senate Committee on the Judiciary has recently approved an amended version of Senate Joint Resolution 1, the counterpart of House Joint Resloution 1, under which the President may resume his powers and - duties in this situation only by following a procedure comparable to that established by section 5. I would much prefer a provision which would clearly ~mabie the President to terminate immediately any period of inability he has voluntarily declared."

He then repeated the third and fourth observations he made to our committee but then made this further observation: ·•

"The Senate Committee on the Judiciary has revised Senate Joint Resolution 1 to provide that all declarations, including the declarations by the President under sections 3 and 5 and the declaration by the Vice President under section 4, shall be transmitted to the President of the Senate and Speaker of the House of Representatives. This change, the committee states, would provide a basis on which congressional leaders could convene Congress if it were not then in session. However, the Constitution expressly authorizes only the President to convene Congress . ess in special session (art. II, sec. 3, clause 2), and in view of that provision it might be argued that Congress cannot be convened in special session by its own offi.cers. Accordingly, I would think it preferable to provide that the Acting President must convene a special session in order to raise an issue under section 5 as to the President's inability. Although section 5 as it now stands could be construed in that way, the committee may wish to consider whether it would not be advisable to add express language which would make that intention unmistakable. "Fifth, I assume that the language used in section 5-to the effect that Congress 'will immediately decide' the issue--means that if a decision were not reached by the Congress immediately, the powers and duties of the office would revert to the President. This construction is suffi.ciently doubtful however, and the term 'immediately' is sufficiently vague, even though used also in article I, section 3, clause 2 of the Constitution, that the committee may wish to consider adding certainty by including more precise language in section 5 or by taking action looking toward the making of approximate provision ~ in the rules of the House and Senate.

"The Senate Judiciary Committee, in approving Senate Joint Resolution 1, has changed the language 'immediately decide the issue' to 'immediately proceed to decide the issue.' This change seems to have the effect of reversing the interpretation I have indicated, the result being that under . Senate Joint Resolution 1, as approved by the Senate committee, the Acting President would continue to exercise the powers and duties of the Presidency while Congress considered the matter and until one of the Houses of Congress brought the issue to a vote and failed to support the Acting President by a two-thirds vote.

"I note that the committee has before it several proposals (H.J. Res. 3, H.J. Res. 119, and H.J. Res. 248) which would provide that once the issue of inability was referred to Congress, the President would be automatically restored to the powers and duties of his Office if Congress failed to act within 10 days. These proposals would add a measure of protection for the President against interminable consideration of the issue by Congress. However, it would still be possible under these proposals for the issue to be decided by delay rather than by a vote on the merits.

"In view of the difficulty of establishing in advance exactly what period of consideration would be appropriate, the , most effective course might be to initiate promptly the adoption of rules for the consideration of questions of inability that would insure a reasonably prompt vote on the merits. I do feel that, if the ' issue of national leadership is to be importantly affected by delay, then delay should favor the President. Particularly is this so if the President may not, under section 3, unilaterally declare an immediate end to periods of inability which he has voluntarily declared.”

But . :there is another course open to us. In the 88th Congress a simple and complete amendment was introduced by Senator Kefauver, then the chairman of the Constitutional Amendments Subcommittee, and cosponsored by Senator Keating. It was Senate Joint Resolution 35.

In his appearance before the subcommittee on June 18, 1963, Attorney General Katzenbach, then the Deputy Attorney General suggested two minor modifications to the amendment. As modified the amendment would read:

"In the 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 forth~ case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then be 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 case of inability, until the inability shall be earlier removed. The commencement and termination of any inability shall be determined by such method as Congress may by law provide."

The Attorney General endorsed the amendment as changed, saying:

"In addition, crucial and urgent new situations may arise in the changing futurenot covered by Senate Joint Resolution 28- where it may be of importance that Congress, with the President's approval, should be able to act promptly without being required to resort to still another amendment to the Constitution. Senate Joint Resolution 35 makes this possible; Senate Joint Resolution 28 does not.

"Since it is difficult to foresee all of the possible circumstances in which the Presidential inability problem could arise, we are opposed to any constitutional amendment which . attempts to solve all these questions by a series of complex procedures. We think that the best solution to the basic problems that remain would be a simple constitutional amendment, such as Senate Joint Resolution 35, which treats the contingency of inability differently from situations such as death, removal, or resignation, which states that the Vice President in case of Presidential inability succeeds only to the powers and duties of the office as Acting President and not to the office itself, and which declares that the commencement and termination of any inability may be determined by such methods as Congress by law shall provide. Such an amendment would supply the flexibility which we think is indispensable and, at the same time, put to rest what legal problems may exist under the present provisions of the Constitution as supplemented by practice and understanding."

He reaffirmed his support for this amendment in 1964 by submitting his 1963 statement for the record, and, I might say his three predecessors, Attorne-ys General Brownell, Rogers, and KENNEDY, have also endorsed the amendment. The House of Delegates of the American Bar Association has endorsed that amendment on two sep­ ~ate occasions. The New York State Bar Association reaffirmed its support of such an amendment this very week and it has been supported by the Association of the Bar of the City of New York.

Let me point out that this amendment, as modified, would permit precisely what Senate Joint Resolution 1 attempts to do but it would reserve the detailed procedure in Senate Joint Resolution 1, which has proved the principal difficulty, for legislation where such det,ails can more properly and easily be defined.

What is the practical difficulty with Senate Joint Resolution 1? It is the questions left unanswered. Must the President wait two days to regain his authority when he has voluntarily relinquished it? If the President is disabled and the Congress is not in session, who calls it into session? Under the Constitution only the President can. What happens if a Vice President, who is serving as Acting President, became disabled himself?

Then, too, if the method of filling a vacancy in the office of Vice President proves unworkable, would it not be preferable to change the procedure by legislation rather than by another constitutional amendment as Senate Joint Resolution 1 requires?

These are but a few of the questions that come to mind as I study this amendment. Consider the problems that the State legislatures will have. Who will be present to answer the questions of the members of the legislature concerning the mechanics of all of these details? Wouldn't the simpler amendment which merely clarifies the present Constitution and leaves the details to be legislated be far preferable and more easily understood?

I recite a number of questions that occur to me in connection with Senate Joint Resolution 1:

1. Where in section 5 is there any language limiting it to those instances where the Vice President and a majority of the heads of the executive department have declared the President unable to discharge the powers and duties of office?

2. If there is no such language, should there be?

3. Must the President wait 2 days to see if the Vice President files a declaration that the President is still under a disability before recovering his office even though he had voluntarily relinquished it?

4. One of the purposes of Senate Joint Resolution lis to permit the President to declare his own inability with the assurance that he can immediately regain it upon the termination of inability. Would the complicated procedure contained in Senate Joint Resolution 1 for regaining the office make it highly unlikely that a President would use it in most cases?

5. If a President were physically unable to write or even sign his name, how could he make a written declaration of his own inability?

6. Another purpose of Senate Joint Resolution 1 is to make certain that the offices of President and Vice President are filled at all times. Testimony before the committee indicated the urgency of this. The national security was involved, it was said. The President in his message to Congress on January 28, 1965, said:

"Indelible personal experience has impressed upon me the indisputable logic and imperative necessity of assuring that the second otnce of our system shall, like the first · otnce, be at all times occupied by an incumbent who is able and who is ready to assume the powers and duties of the Chief Executive and Commander in Chief."

7. Does Senate Joint Resolution 1 make provision for having the offices filled at all times?

8. Suppose the President becomes disabled and the Vice President becomes Acting President. Where is the provision for filling the office of Vice President?

9. What happens if the Vice President is under a disability when the President becomes disabled?

10. The Constitution says that only the President can call Congress into special session. What happens if Congress is not in session when the Vice President and a majority of the heads of the executive departments declare the President unable to discharge the powers and duties of his office? How is Congress called into session to discharge its function under section 5?

11. If the method of filling a vacancy in the office of Vice President as provided in Senate Joint Resolution 1, proves unworkable or undesirable, wouldn't it be preferable to be able to change it by legislation rather than by another constitutional amendment as required by Senate Joint Resolution 1?

BayH AMENDMENT--8ECOND THOUGHTS ON DISABILrrY

(By Roscoe Drummond)

Some influential Senators are having second thoughts on the wisdom of the Bayh amendment as a means of dealing with Presidential disability, not on the urgency of the action. And there is no acute dissent on what should be done, only on how it should be done.

The how is important. It could 'be crucially important.

The second thoughts, which are growing on the Hill, have to do with whether to write detailed procedures into the Constitution to try to cover all contingencies or to propose a simple amendment that would authorize Congress to deal with these matters.

Senator EVERETT M. DIRKSEN, Of Illinois, the Democratic Senator EuGENE McCARTHY, of Minnesota, have come out on the side of a simple enabling amendment. Other Senators, both Republican and Democratic, have indicated either their support or their openmindedness .

There is a strong case to be made in favor of an authorizing amendment without attempting to write detailed law into the Constitution.

The role of the Constitution is to distribute authority between the three branches of the Government and between the Federal Government and the States. Its function is not to prescribe in detail how that authority shall be used. Since Congress does not have the power to deal with Presidential disability and . Vice Presidential vacancies, the only need is to give Congress that power.

Amendment to the Constitution should not legislate. Good precedent: The 16th amendment, which gave Congress authority to "lay and collect taxes on incomes." It did not attempt to write a tax code. Bad precedent: The 18th amendment, which wrote the prohibition law into the Constitution and made repeal of the amendment the only redress when it did not work.

Can't we profit from the experience of the 18th amendment, or must we repeat it all over again? It seems to me once is enough. What if we write into an amendment all the precise procedures for filling Vice Presidential vacancies, and coping with Presidential disability? And then later we find contingencies nobody foresaw? Or what if some major provision proves inadequate? Then the amending process would have to start all over again.

These are practical questions. For example, one proposal to go into a possible amendment would leave it wholly with the President to affirm that he has recovered from a disability. But what if he insists upon exercising his powers when he is unable to do so It has happened twice. President Garfield lingered for 80 days between life and death, disabled but unwilling to accept his disability at any time. The same with President Wilson for 17 months.

The voluntary arrangements established by Presidents Eisenhower, Kennedy, and Johnson with their Vice Presidents suggest that this fearful hoarding of power might not be repeated. But we cannot be sure that some future President, after being disabled, would not seek to recapture his authority before he was ready. One proposed amendment would leave this matter unresolved.

Congress cannot possibly foresee every contingency. That is why it seems to me that Senator DIRKSEN and Senator McCARTHY are wise in urging that detailed methods not be embedded into the Constitution and that instead, the necessary authority be granted to Congress to act.

Mr. DIRKSEN. Mr. President, where. for instance, in section 5 is there any language limiting that section to instances in which the Vice President and a majority of the heads of the executive departments have declared the President to be unable to discharge the powers and duties of his office? If there is no such language, should there be?

Must the President wait 2 days to see if the Vice President files a declaration that the President is still under a disability before recovering his office, even though he had voluntarily relinquished One of the purposes of Senate Joint Resolution 1 is to permit the President to declare his own inability, with the as­ . surance that he can immediately regain it upon the termination of such inability. Would the complicated procedure contained in Senate Joint Resolution 1 for regaining the office make it highly unlikely that a President would use it in most cases?

If a President were physically unable to write or even sign his name. how could he make a written declaration of his own inability?

Another purpose of Senate Joint Resolution 1 is to make certain that the Offices of President and Vice President are filled at all times. Testimony before the committee indicated the urgency of this matter, and that is the reason why Irecited the extended paragraph from the President's message to Congress.

Does Senate Joint Resolution 1 make provision for having the offices filled at all times?

The PRESIDING OFFICER (Mr. TY­

DINGS in the chair). The 15 minutes yielded to himself by the Senator from Illinois have expired.

Mr. DIRKSEN. I yield myself 2 additional minutes.

Suppose the President becomes disabled and the Vice President . becomes Acting President. Where is the provision for filling the office of Vice President?

What happens if the Vice President is under a disability when the President becomes disabled?

The Constitution provides that only the President may call Congress into special session. What happens if Congress is not in session when the Vice President and a majority of the heads of the executive departments declare the President unable to discharge the powers and duties of his office? How would Congress be called into session to discharge its function under section 5?

If the method of filling a vacancy in the office of Vice President, as provided in Senate Joint Resolution 1, proves unworkable or undesirable, would it not be preferable to be able to change it by legislation rather than by another constitutional amendment, as required by Senate Joint Resolution 1?

Mr. President, those are some of the questions that arise. My interest is that there be no ambiguities and no rigidities written into the Constitution that could be modified only by another constitutional amendment.

My preference is for flexibility and for adequate powers in the hands of Congress to deal with the problem. I am gress. sensible of the fact that something must be done. I am glad that the distinguished Senator from Indiana [Mr. BAYH] has carried the proposal to this point. For aught I know, my name may be on the joint resolution. Certain it is that I voted for the proposal in the previous Congress, but always with the reservation that proposals that might be made after the measure had left the committee could without prejudice be submitted on the floor of the Senate. So I exercise only the reservation that I kept unto myself both in the subcommittee and in the full committee, because I wanted to see some measure come to the floor of the Senate upon which the Senate could work its will and get it to the other body, and finally to the country.

The PRESIDING OFFICER. The additional time yielded to himself by the Senator from Illinois has expired.

Mr. DIRKSEN. Mr. President, I yield 5 minutes to the distinguished Senator from Nebraska.

Mr. HRUSKA. Mr. President, in the discussion and consideration of the joint resolution, both in the present session of Congress and earlier, there were two principles that I felt were most important. One of those points was just emphasized by the Senator from Illinois, when he spoke in favor of his substitute measure, namely, the inadvisability placing too many detailed procedural provisions in the Constitution.

This makes the Constitution · ..Ition very in­ flexible. Flexibility is a principle which has been inherent in our Constitution. n has been followed quite consistently. Exceptions to it are very few indeed.

I fear that with the great number of procedural provisions found in the Senate joint resolution, as reported by the committee, we shall very likely, if we are ever called upon to exercise it, run into something that will prove unworkable. For that reason, it would be better to couch the proposed amendment in general terms and then provide that Congress shall be empowered to implement, by the legislative process, the amendment.

There are two ways of doing it. One would be the substitute resolution of the Senator from Illinois. The other is proposed in the amendment offered by the Senator from Vermont on behalf of the Senator from Kentucky [Mr. COOPER].

The latter method would grant to Congress the power to prescribe any other plan for dealing with disability, in the choice · of a Vice President and the filling of a vacancy in addition to that detailed in Senate Joint Resolution 1.

That is one of the principles. The other principle is the matter of separation of power. We have had testimony, throughout the past 6 or 8 years, that it is desirable for an amendment dealing with this subject to respect the doc­ ~rine <;>f separation of powers. It has been my view that that doctrine is violated in the resolution as approved by the Committee on the Judiciary, since the decision as to whether or not disability has terminated is left for ConWhen we ask another branch of the Government for the decision, the doctrine of separation of powers is violated. That was debated thoroughly. The Senator from Indiana has developed a fine body of testimony which is contrary to that viewpoint.

It is, however, a viewpoint that was at one time the judgment of our present Attorney General, three of his predecessors, as nearly as I remember.

As I have indicated in my individual views of the committee report, it is my view we should abide by these two principles. The substitute amendment of the Senator from Illinois complies with those two principles.

The PRESIDING OFFICER. The time of the Senator has expired.

Mr. BAYH. Mr. President, I yield 5 minutes to the Senator from North Carolina, or as much time as he may care to use in the opposition to the Dirksen amendment.

The PRESIDING OFFICER. The Senator from North Carolina is recognized for 5 minutes.

Mr. ERVIN. Mr. President, I rise in opposition to the Dirksen amendment. The Dirksen amendment totally ignores one of the crucial questions which has brought this matter to the floor of the Senate. That is the fact that vacancies occur in the office of Vice President. The Dirksen amendment makes no attempt to provide for the election of a Vice President in case a Vice President succeeds to the office of President, or is removed from office by impeachment. It ignores one of the things which has made this question so crucial. It ignores the necessity of having someone continue in the office of Vice President. There is another fatal flaw in the Dirksen amendment. That is the provision that "the commencement and termination of any inability shall be determined by such method as Congress may by law provide."

I thank God that was not placed in the Constitution when the Constitution was adopted. If it had been placed in the Constitution, we would have seen, in the most tragic period of our history, the total blackout of government of the people, by the people, and for the people in this Nation. I refer to the tragic days . when a congressional group was trying to take complete power in this Nation. The group was led by the then Senator Ben Wade, who was President pro tempore of the Senate and who wanted to be President. At that time there was no Vice President. Lincoln had been assassinated and had been succeeded in the office of President by Vice President Andrew Johnson;

This group in Congress had intimidated the Supreme Court of the United States after that Court had handed down one or two courageous decisions. The group scared the Supreme Court so that it did not dare to decide cases as they should have been decided.

The group then decided that they would impeach Andrew Johnson. The only thing that saved Andrew Johnson from impeachment, and saves us from behaving as a "banana republic" often behaves on the seizure of power by ambitious men, was the provision of the Constitution that required a two-thirds vote before the President could be removed from office. Power-hungry men, headed by a man who aspired above everything else to become President of the United States, and who · was in line for the Presidency if Andrew Johnson had been removed from office, were prevented from taking control by a provision of our Constitution which required a twothirds vote for impeachment, and then by only one vote short of the two- thirds majority.

If the provision referred to had been in the Constitution at that time--"The commencement and termination of any inability shall be determined by such method as Congress may by law provide"-Andrew Johnson would have been removed from office. The group would have set up a medical commission and had President Johnson declared mentally disabled. But they did not have the power under the Constitution. The only way that they could have removed him would have been by impeachment, and only by impeachment by a two-thirds majority. -

With this substitute amendment incorporated in the Constitution, any time that power-hungry men in Congress were willing to go- to the extremes that men were willing to go to in those days, they could take charge of the Presidency. Under the Dirksen proposal, they could provide that one of their favorite Members should succeed to the office of President if there were no Vice President at the time. That is a dangerous thing.

Mr. President, someone has very wisely said that a nation which does not remember the history of the past is doomed to repeat its mistakes.

So this amendment should be rejected for at least two reasons. It does not deal adequately with the question of vacancies in the Vice Presidency, and it would place dangerous power in the hands of Congress.

I am not disturbed about the doctrine of the separation of powers here, because the powers of government are not always separated. The Constitution provides, · for example, that a President can be impeached, and be removed from office by the Senate. The Constitution provides a good many things that must be done by the President and the Congress. The Constitution provides that the President may make treaties, but they must be ratified by the Senate. It provides that the President shall appoint heads of departments of the Federal Government, judges, ambassadors, and other officers of the United States; but the nominations are subject to confirmation by the Senate, under the Constitution.

So there are many cases in which the powers of government are jointly reposed in both the executive and the legislative branch.

This amendment should be rejected for those two reasons. The joint resolution presented by the committee contains full protection against any group of men thirsting for power taking over the office reads . : of the Presidency, as could be done bY the Dirksen proposal, because it requires a two-thirds vote. It requires action of the Vice President and members of the Cabinet and action by Congress to remove the President or Vice · President.

I agree with my good friend from Nebraska, in that I do not like to have too many specific things written into the Constitution, but when we try to protect somebody, we had better write specifics into the Constitution if we do not want ' to run the risk of converting the United States into what I would call a banana republic. We had better provide for a two-thirds vote by the Congress, such as the joint resolution reported by the committee provides, to remove the President from office, where he risks the charge of disability.

Mr. BAYH. Mr. President, will the Senator a tor yield?

Mr. ERVIN. I yield.

Mr. BAYH. I am glad the Senator from North Carolina has pointed out the time when our forefathers determined that there should be a commingling of the various branches which in most · cases we keep separate. I am also glad he pointed out the need for specifics under certain circumstances.

It seems to me that a close analysis of our Constitution discloses that it is a wonderful, broad, general plan for a wonderful society, but at the same time certain basic specifics to protect certain inalienable rights are necessary, such as the basic features provided in article 2, section 1, which has since been replaced by the 12th amendment. It specifically provides, in great detail, how elections shall be conducted, because we do not want Congress to take a way from the people the right to decide for themselves. As the Senator knows, the Constitution contains many specific qualificationsfor example, to be President, and to be Members of this great body.

· I commend the Senator for what he has said about the qualifications provided.

Mr. ERVIN. As the Senator knows, in the Bill of Rights specifics are provided for the protection of the individual against governmental tyranny. There are specifics protecting the individual against unreasonable searches and seizures of his papers, effects, and home. The Constitution contains specifics to protect many rights.

That is the reason why the amendment proposed by the committee was prepared in the form it is in. It was necessary to protect a President against a powerhungry Congress, on the one hand, and also to see to it that there was proper protection before such drastic steps should be taken.

Mr. SALTONSTALL. Mr. President, will the Senator from Indiana yield for a question?

Mr. BAYH. I am glad to yield to the Senator from Massachusetts, who has been an ardent ally from an early date.

Mr. SALTONSTALL. This may be a small, immaterial. matter, but I would like to clarify it in my mind and for the RECORD.

Turning · to section 3 of the · Senator's proposed constitutional amendment, it 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 disc , discharged by the Vice President as Acting President.

Under the Constitution, the Vice President is President of the Senate, but if he became Acting President under this amendment, he would no longer be President of the Senate, but the President pro tempore would become the President of the Senate. Is that correct?

Mr. BAYH. That is correct.

Mr. SALTONSTALL. The Vice President would become Acting President and thereby lose his title as President of the Senate. Is that correct?

Mr. BAYH. That is correct. I point out for the RECORD, with respect to the wording of the amendment, that, as originally introduced and as reported by the committee, it was suggested that the message would be transmitted to Congress. We were determined to think of all eventualities that could possibly happen. We determined that such an eventuality might happen when Congress was not in session. Therefore we changed the wording so that it would read that the transmission should be to the President of the Senate and the Speaker of the House of Representatives. By that wording, the normal, legal procedure of delivery would take place in the manner set out. Delivery to the President of the Senate and the Speaker of the House would be sufficient for the intention of the resolution.

Mr. SALTONSTALL. May I ask the Senator from Indiana, who has worked so hard in this matter, a question? Perhaps he has answered it in his speech when I was not present in the Chamber. If Congress were not in session, would the fact that the transmission is to be to the President of the Senate and the Speaker of the House automatically call Congress into session?

Mr. BAYH. It is specifically provided in section 5, when it is necessary for Congress to convene, that it shall immediately proceed to decide. We think that is sufficient to enable the President of the Senate or the Speaker of the House to call a special session.

Mr. ERVIN. Mr. President, will the Senator from Indiana yield to me for the purpose of clarifying the question asked by the Senator from Massachusetts?

Mr. BAYH. I yield.

Mr. ERVIN. The amendment originally provided for the report to be made to Congress. The question was raised whether a report could be made to Congress when Congress was in adjournment. So we adopted the language that thereport should be made to the President of the Senate and the Speaker of the House of Representatives to make certain that the Vice President could take over, immediately, in case of the President's disability, without waiting for Congress to meet. But it is implied that Congress shall meet,' because section 5 contains the language, "Congress shall immediately proceed."

Mr. SALTONSTALL. Therefore, ei- . ther the President of ' the Senate or the Speaker of the House, or both, would call Congress into session, and they would have the power to do it?

Mr. ERVIN. Yes; that would be implied from the fact that Congress would meet immediately.

Mr. SALTONSTALL. But if Congress adjourned sine die, there would not have to be any provision in the sine ' die adjournment to permit those officers to call it back into session.

Mr. ERVIN. No.

Mr. SALTONSTALL. We sometimes include such a provision.

Mr. ERVIN. Yes.

Mr. SALTONSTALL. It would be automatic?

Mr. ERVIN. Yes.

Mr. President, my good friend from Nebraska referred 'to the testimony of the present Attorney General in 1963. I invite the Senator's attention to the hearings, at pages 10 and 11. I read from the bottom of page 10:

In my testimony during the hearings of 1963, I expressed the view that the specific procedures for determining the commencement and termination of the President's inability should not be written into the Constitution, but instead should be left to Congress so that the Constitution would not be encumbered by detail. There is, however, overwhelming support for Senate Joint Resolution 1, and widespread sentiment that these procedures should be written into the Constitution. The debate has already gone on much too long. Above all, we should be concerned with substance, not form. It is to the credit of Senate Joint Resolution 1 that it provides for immediate self-implementing procedures that are not dependent on further congressional or Presidential action. In addition, it has the advantage that the States, when called upon to ratify the proposed amendment to the Constitution, will know precisely what is intended. ~ In view of these reasons supporting the method adopted by Senate Joint Resolution 1, I see no reason to insist upon the preference I expressed in 1963 and assert no objection on that ground.

Mr. BAYH. Mr. President-

The PRESIDING OFFICER (Mr. TYDINGS in the chair). The Senator from Indiana.

Mr. BAYH. I should like to suggest that this might be the appropriate time to ask unanimous consent to have printed in the RECORD a letter which I received yesterday from the Attorney General, Nicholas Katzenbach, in an effort to clarify and point out specifically that his opinion does away with some of the rumors to the contrary.

There being no objection, the letter was ordered to be printed in the REcORD, as follows: '

OFFICE OF THE ATTORNEY GENERAL,

Washington, D.C., February 18, 1965.

Hon. BmcH BAYH, U.S. Senate, Washington, I).C.

DEAR SENATOR BAYH: I understand that . recent newspaper reports have raised somequestion as to whether I favor the solution for the problem of presidential inability embodied in Senate Joint Resolution 1, or whether I prefer a constitutional amendment. which would empower Congress to en.act appropriate legislation for determining when inability commences and wh;en it terminates. Obviously, more than one acceptable solution to the problem · of presidential inability is possible. As the President said in his message of January 28, 1965, Senate Joint Resolution 1 represents a carefully considered solution that would responsibly meet the urgent need for action in this area. In addition , it represents a formidable consensus of considered opinion. I have, accordingly, testified twice in recent weeks in support of the solution embodied in Senate Joint Resolution 1 and House Joint Resolution 1.

My views on the particular question here involved were stated on January 29, Hl65, before the Subcommittee on Constitutional Amendments of the Senate Judiciary Com- mittee, as follows:

"In my testimony during the hearings of 1963, I expressed the view that the specific procedures for determining the commencement and termination of the President's inability should not be written into the Constitution, but instead should be left to Congress so that the Constitution would not be encumbered by detail. There is, however, overwhelming support for Senate Joint Resolution 1, and widespread sentiment that these p , procedures should be written into the Constitution. The debate has already gone on much too long. Above all, we should ' be concerned with substance, not form. It is to the credit of Senate Joint Resolution 1 that it provides for immediate, self-implementing procedures that are not dependent on further congressional or Presidential action. In addition, it has the advantage that the States, when called upon to ratify the proposed amendment to the Constitution, will know precisely what is intended. In view of these reasons supporting the method adopted by Senate Joint" Resolution 1, I see l'lo reason to insist upon the preference I expressed in 1963 and assert no objection on that ground."

I reaffirmed the ' se views with the same explicit language in my prepared statement delivered on February 9, 1965, before the House Judiciary Committee. In view of the above, there should be no question that I support Senate Joint Resolution 1.

Sincerely,

NICHOLAS DEB . KATZENBACH,

Attorney General.

Mr. ERVIN. Mr. President, my opinion is that the present Attorney General can now claim something which all of us would ,. like to be able to claim; namely, that . we are wiser today than we were yesterday.

Mr. BAYH. I wish to thank my good friend the Senator from North Carolina [Mr. ERVIN], and the distinguished Senator from Massachusetts [Mr. SALTONSTALL]. Both Senators have been of great help in trying to forge the final content of our arguments.

There are one or two additional points which were raised by the minority leader, on which I should like to comment.

First, I should like to point out that in the quotation which he read from the Presidential message, the President was at that particular time addressing himself to the need for a Vice President at all times, to elect a Vice President by Congress and Presidential appointment, a matter which is not even contained in the Dirksen amendment.

As I said in my statement,' the President unequivocally, on all fours, endorsed both disability and Vice-Presidential replacement provisions in the joint resolution.

Second, I refer to my earlier remarks, that under the provisions of section 3 where the President voluntarily gives up his powers, it is the understanding-reinfilrced by the testimony of the Attorney General-that he could assume it merely by declaration, and would not have to invoke the provisions of section 5 and bring in the Vice President, the Cabinet, and Congress.

Next, I should like to point out that if we had a President unable to write his name, the matter would not be considered under section 3, as the distinguished minority leader has suggested, but rather it would be considered under section 4, which is specifically provided for in the resolution in a case in which a President of the United States might have a heart attack and be in an oxygen tent . at a time when missiles might be moving to Cuba or some other area of the world. The health and welfare of the country would demand · immediate action; and thus the Vice President and a majority of the Cabinet would act, when the President might be unable to do so.

The issue of calling a special session has been well covered in previous colloquy and I shall not repeat what has been stated; but it is our understanding that sufficient authority has been indicated in the report to adequately point out that the intention of the amendment is to give this power to the President of the Senate and the Speaker of the House.

I close by saying that it seems to me we are making a general policy determination which was articulated so well by my colleague, the Senator from North Carolina [Mr. ERVIN], as to whether we are going to open Pandora's box to permit a blanket check provision to be given to Congress to provide laws in these vital areas at some later date.

Let me reemphasize that if we give Congress the power by law to decide later, we shall not be able to prevent a majority of Congress from passing any laws it may wish to pass, and then we immediately negate the two-thirds protection residing in the impeachment provisions of the Constitution since its inception, and which is also provded · in Senate Joint Resolution 1, as so vividly pointed out by the Senator from North Carolina [Mr. ERVINJ.

There has been a trend of thinking that if we have a loosely drawn, non- · specific constitutional amendment, the legislative bodies might be more inclined to adopt it. I am satisfied that several Members of this body who have had legislative experience at the State level can speak with more authority than I. But my 8 years in the Indiana General Assembly have led me to believe that this was a false assumption. With this in mind, we sent copies of Joint Resolution 35, which was merely an enabling act giving Congress power to act, and Joint Resolution 139 of the previous year, which is almost identical with Senate Joint Resolution 1, to the president of the senate and the speaker of the house of all the States.

The preponderance of evidence-! believe we received only three letters to the contrary-was that State legislative bodies would prefer to enact the ratification resolution, that State legislatures should deal with a specific proposal and not give Congress a blank check to take away the safeguards to which the senator from North Carolina [Mr. ERVIN] has 5o adequately directed our attention.

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

Mr. BAYH. I yield.

Mr. SALTONSTALL. Is it not true, following up what the Senator has said, that in this instance this subject had been discussed for many years, and that if we send it back in a general form . and say that Congress will do something if the amendment should be adopted, the average legislator, the average citizen will say, “Pshaw. Congress is putting the thing off further, and this is not definite.”

Mr. BAYH. The Senator is absolutely correct. The effect would be very much the same, I am sure, as that contained in the 20th amendment, which provides for that eventuality. Thirty-two years ago that provision was specified, and Con- gress has done nothing since that time. If an enabling constitutional amendment were passed by the two Houses of Congress and sent to and subsequently ratified by the House, we still would have to enact a law, which we have not done in 170 years.

Now that we are close to solving the problem, why put it off to some day in the future when interest may have waned , and Congress may be dilatory about it, as it has been in the past?

Mr. SALTONSTALL. That is an appealing argument. That is the fundamental argument with the average member of a State legislature.

Mr. BAYH. I thank the Senator from Massachusetts for pointing this out.

Mr. President, one last point and then I shall have concluded my arguments, which have ably reenforced by many Senators. I believe that the most important ingredient in a constitutional amendment such as this is general public acceptance of a formula which we provide. As I pointed out in my earlier remarks, the horrible tragedy in Dallas, Tex., would have been much worse-if that is possible to imagine-if we had not had a definite procedure which was accepted by the people of America so that Lyndon Johnson could assume the office of President, succeeding to the office from that of Vice President.

It is my judgment that a constitutional amendment-passed by a two-thirds vote of the Senate, passed by a two-thirds vote of the House of Representatives, and subsequently ratified by three-fourths of the State legislatures, with all of the attendant publicity-would be much better accepted by the people of America, and they would be more aware of its provisions, than a law which passed both Houses of Congress by majority vote.

The PRESIDING OFFICER. Who yields time?

Mr. HRUSKA. Mr. President­

Mr. BAYH. Mr. President, I yield back the remainder of my time.

Mr. HRUSKA. Mr. President, if there is any time left on the substitute amendment, I yield back the remainder of that time.

The PRESIDING OFFICER. All time is yielded back. ·

Mr. HRUSKA. Mr. President, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. HRUSKA. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. HRUSKA. I ask for the yeas and nays on the Dirksen substitute.

The yeas and nays were ordered.

The PRESIDING OFFICER. The question is on agreeing to the amendment offered by the Senator from Illinois [Mr. DIRKSEN]. The yeas and nays have been ordered and the clerk will call the roll.

The legislative clerk called the roll.

Mr. LONG of Louisiana. I announce that the Senator from New Mexico [Mr. ANDERSON], the Senator from Nevada [Mr. BIBLE], the Senator from North Dakota [Mr. BURDICK], the Senator from Pennsylvania [Mr. CLARK], the Senator from Tennessee [Mr. GoRE], the Senator from Alaska [Mr. GRUENING] , the Senp.- tor from Oregon [Mr. MoRSE], the Senator from Utah [Mr. Moss], the Senator from Oregon [Mrs. NEUBERGER], the Senator from Florida [Mr. SMATHERS], the Senator from New Jersey [Mr. WILLIAMS], are absent on official business. I also announce that the Senator from Georgia [Mr. RussELL] is absent because of 1llness.

I further announce that the Senator from South Carolina [Mr. JoHNSTON], the Senator from North Carolina [Mr. JoRDAN], the Senator from Massachusetts [Mr. KENNEDY], the senior Senator from Minnesota [Mr. McCARTHY], the junior Senator from Minnesota [Mr. MONDALEJ, the Senator from Maine [Mr. MusKIE], the Senator from Wisconsin [Mr. NELSON], the Senator from Connecticut [Mr. RIBICOFF], and the Senator from Missouri [Mr. SYMINGTON] are absent on official business.

I further announce that, if present and voting, the Senator from New Mexico [Mr. ANDERSON], the Senator from Nevada [Mr. BIBLE], the Senator from Pennsylvania [Mr. CLARK], the Senator from Tennessee [Mr. GoRE], the Senator from Maine [Mr. MusKIE], the Senator from Wisconsin [Mr. NELSON], the Senator from Oregon [Mrs. NEUBERGER], and the Senator from Florida [Mr. SMATHERS] would each vote "nay."

On this vote, the Senator from Massachusetts [Mr. KENNEDY] is paired with the Senator from Colorado [Mr. DOMINICK]. If present and voting, the Senator from Massachusetts would vote "nay," and the Senator from Colorado would vote "yea."

On this vote, the senior Senator from Minnesota [Mr. McCARTHY] is paired with the junior Senator from Minnesota [Mr. MoNDALEJ. If present and voting, the senior Senator from Minnesota would "nay." vote “yea,” and the junior Senator from Minnesota would vote "nay."