February 19, 1965 (5)

Mr. BASS. Does that also apply to section 2 of the joint resolution?

Mr. BAYH. No, it does not apply to section 2. I thought I had made it abundantly clear that we were dealing with two different provisions. It is imperative that the Senate immediately proceed to decide who the President is. It will be necessary to have an able bodied President. I do not believe we need to grind everything to a halt to decide who the · Vice President is. Two different issues are involved.

Mr. PASTORE. That is correct.

Mr. BAYH. I ask the Senator from Tennessee: What is the worst thing that could possibly happen if we did not include the word "immediately" in section 2?

Mr. BASS. The worst thing that could happen would be that Congress would stall, delay, and use dilatory tactics. We would end exactly where we are. If we do not accept this conclusion, we might as well strike out everything in the amendment and deal only with the disability phase. If we are to deal with succession, we shall have to include some sort of requirement.

Why does not the Senator include the word "immediately" in this section, as he did with respect to disability?

Mr. BAYH. Because I do not attach the same importance to the choosing of a Vice President as I do the choosing of a President. · If the Senator from Tennessee desires to propose such an amendment, I suggest that he offer it separately.

Mr. BASS. I shall offer a separate amendment.

Mr. BAYH. I suggest that he do so.

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

Mr. BAYH. I yield.

Mr. SALTONSTALL. I hope we shall not adopt this amendment or any additional amendments of this character. We are trying to amend the Constitution with respect to an important question. If an amendment is to be offered on the floor of the Senate, I believe the bill should be returned to committee for a limited time, to make possible a careful discussion of what the amendments are. Both the Senate and the House are governed by rules. If there were to be a declaration of war, or if some other matter of grave importance should arise, we have rules, and we can limit debate. If we have any confidence in the great majority of the Members of the Senate, we can count upon two-thirds of the Senate to impose cloture and thus close debate.

I hope that we can have confidence that future Members of Congress will exercise commonsense on a question of this character. I hope sincerely that the amendment of the Senator from Rhode Island-and I have great respect for the Senator from Rhode Island-will not be adopted. I hope that the proposed constitutional amendment will be passed as the committee has recommended

If there is any question of the proposed constitutional amendment not being agreed to, I shall use whatever pariliamentary procedure I can to send the proposed constitutional amendment back to committee for 1 or 2 weeks to try to improve this measure.

I hope that the amendment of the Senator from Rhode Island will be rejected.

Mr. PASTORE. Mr. President, if the Senator from Massachusetts will make a motion to send the measure back to committee, I shall second the motion. We are amending the Constitution of the United States. I hope that no frivolous arguments were made by the Senator from Rhode Island. All I say is that if it is important enough to determine who the President of the United States shall be in a time of crisis-and I repeat that he is the man who, under our law, has the sole authority to drop an atomic bomb-! think it is incumbent upon this body to transact no other business until that issue is determined. That is all the Senator from Rhode Island is doing. What is wrong with it, I ask the Senator from Massachusetts?

The argument is made that there might be involved an issue that means a declaration of war. Does not the Senator think we ought to find out first who the President of the United States is before we declare war? That is the man who can drop the bomb. ·

Mr. SALTONSTALL. Mr. President, will the Senator yield? He has asked a question. Will he yield so that I may give my answer?

Mr. PASTORE. I yield.

Mr. SALTONSTALL. My answer is simple. This is a very important section of our fundamental law. We cannot decide on this proposed amendment in the Senate Chamber pursuant to an amendment written in long hand. I do not think the amendment is necessary. We can depend upon the commonsense of our successors in this body if the question arises. But if the majority of this body feels that we should have something of this kind, the proposed constitutional amendment should go back to the committee and be carefully worded and worked out.

Mr. PASTORE. I do not object to that. But we have a perfect right to debate these questions. That is all we are doing. We have a perfect right to set forth our arguments. That is all we are doing.

If the Senator from Massachusetts is so sensitive that, because this is a proposed constitutional amendment, we cannot even make a logical argument, no matter how logical it is, what are we doing here? We might as well take what the committee produces, close our eyes, put on blindfolds, or wear blinkers, and say, "That is it."

We are seeking to improve the joint resolution. The Senator in charge of the joint resolution has already admitted that there is some substance to the argument that is being made. His only argument is that the joint resolution with the present language does exactly what I am proposing to do. The only trouble is that the minority leader disagrees with him. All I am trying to do is to straighten it out by inserting certain language.

Mr. McCLELLAN. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The President. Senator will state it.

Mr. McCLELLAN. suming that the proposed constitutional amendment were adopted, may I inquire whether the swearing in of a Senator to fill a vacancy would constitute the transaction of other business?

The PRESIDING OFFICER. The Chair informs the Senator that that is not a parliamentary inquiry. That is an inquiry of substance.

Mr. McCLELLAN. Mr. President, is the swearing in of a Senator a transaction of business by the Senate?

The PRESIDING OFFICER. It is.

Mr. McCLELLAN. Then I point out, Mr. President, that if there were a vacancy in the Senate when this issue arose, and a State had only one Senator . tor at the time, but a second Senator had been appointed and was ready to be sworn, that State would be denied its constitutional representation in this body during that time.

So there is one situation, and there may be · other situations, in which the Senate ought to transact some other business.

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

Mr. BAYH. I yield.

Mr. HRUSKA. Mr. President, would not another situation be in the event a situation arose between the time of the election of Congress and the time that Congress were to meet? It would be necessary for the House to organize, and that is the transaction of business. There would not be anyone qualified to consider this business until other business was transacted.

Mr. McCLELLAN. Mr. President, if the amendment is accepted, I hope it will be referred back to the committee for further study.

Mr. BAYH. Mr. President, I yield to the Senator from Maryland.

Mr. TYDINGS. Mr. President, my remarks are addressed to the amendment proposed by the Senator from Rhode Island. I have listened with interest to the eloquence of the Senator. I point out that the Subcommittee on Constitution and Bylaws of the Committee on the Judiciary, and, in fact, the entire Committee on the Judiciary, considered the very point which the Senator from Rhode Island raises.

We felt that the language "immediately," already in article XII of the Constitution-which has to do with the selection of the President and the Vice President-is good language.

We also considered a considerable number of amendments similar to those proposed by the Senator from Michigan. They related to a time of 2, 3, 10, 15, or 60 days. But we considered the entire context of section 5. Section 5 establishes that procedure which would be followed after two circumstances take place.

In the first place, the President, or Vice President, and a majority of the members of the President's own Cabinet would have to place their career, reputation, and their sacred honor at stake, and publicly write and declare that the President was not fit or able to serve as

Mr. HART. Mr. President, will the Mr. President, as­ Senator yield at that point?

Mr. TYDINGS. I would prefer to finish before yielding.

Secondly, the President would then assert himself and send a declaration to Congress. Then his Vice President and a majority of the members of his Cabinet would again, in a sense, have to place their sacred honor and reputations at stake that they felt that the President, the man who had selected them, was not able to hold down the office of President. Then the question would go to the Congress of the United States. We felt that the language "immediately" used in the article XII of the Constitution would be the best language. If we put in language such as that used by the Senator from Rhode Island, which would restrict, tie up, and stop the Government, in effect, from operating, it might compound an already difficult situation.

I oppose the amendment of the Senator from Rhode Island for the reason that I think his amendment, rather than doing what he would want to do; namely, improve the situation, might actually compound a bad situation and tie up the Government worse than it already was. If such a situation were to occur, it would be difficult enough. · The word "immediately," already in the Constitution, is sufficient, and it ought to be retained.

The PRESIDING OFFICER. The Chair would like to have the amendment restated for clarification of the RECORD.

The LEGISLATIVE CLERK. On page 3, line 24, after the word "issue," add the following: "and no other business shall be transacted until such issue is decided.” On page 2, line 16, after the word "Congress," add the following: "and no other business shall be transacted until such issue is decided."

The PRESIDING OFFICER. Will the Senator from Indiana yield to the Senator from Michigan?

Mr. BAYH. If I have time. My own time is running very short. I yield to the Senator from Michigan.

Mr. HART. I wish simply to express a concern that with the remarks of the Senator from Maryland, I now entertain. I confess, as a member of the Judiciary Committee, I recall the discussion, but this point never occurred to me until tonight. The Senator speaks of the safeguard · by reason of the fact that a majority of the President's Cabinet, on their honor, must take their position. be. A Cabinet appointed by whom? Do we do anything to safeguard the situation when the President is disabled and the Vice President · acts, and then fires the Cabinet, and then puts his own Cabinet in? How do we respond to that probMr. BAYH. Mr. President, this is another problem, if the Senator from Michigan cares to discuss it. It is a good question. We have thought about it. We are dealing with this one amendment. May we dispose of it, and then discuss another question?

Mr. HART. Reluctantly, I have indicated that there are unanswered questions. Perhaps the night is not going to be long enough.

Mr. BAYH. Mr. President, a moment ago, hoping we could accomplish what we wanted to accomplish, I said I was willing to accept the Senator's amendment. I acted hastily.

I feel wisdom requires us to proceed on the measure presented by the committee, as the committee carefully studied the measure. I cannot see a more firm determination made by the Congress than the determination which it makes under the 12th amendment, in which it is provided that in the event neither candidate for the Presidency receives a majority of the electoral votes, Congress shall immediately decide the issue. We say, in the event that it cannot be determined whether the President is able to carry on his duties, Congress shall immediately decide the issue.

Frankly, this question has been discussed in committee. It has been discussed on the public platform. I do not think we can come closer to resolving this question than by using the terminology in the joint resolution before us. If the Senator from Rhode Island wishes · to proceed, wisdom would cause me, with great reluctance, to vote against his amendment. I think it is wrong. I think the wording in the joint resolution is tight. The urgency is clear. The record is written. No Member of this body does not share the feeling that this is a matter which the U.S. Senate should not decide immediately.

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

Mr. BAYH. Mr. President, is the Senator from Tennessee going to pose a question?

Mr. BASS. Yes.

Mr. BAYH. I yield.

Mr. BASS. Let us assume that the Senator believes the word "immediately" is adequate in the section so ' far as disability is concerned. Would the Senator be willing to accept one single word, "immediately" in section 2, so the congress would act forthwith on the selection of the new Vice President?

Mr. BAYH. No, I would not.

Mr. BASS. Would the Senator explain what his objection would be?

Mr. BAYH. I have explained it. I will try again. In section 5 we are questioning the disability of the President, the man who has his "finger on the button." This issue needs to be decided immediately. But in section 2 we are try-

CXI--2oa ing to decide who the Vice President shall The Senator from Tennessee has concocted a situation th a t he thinks might foreseeably exist. I asked him to state a while ago the worst possible thing that could happen, and the worst possible thing is to leave it where it is now. Why tie up Congress to correct a system that has worked for 176 years? We are not looking for delays.

Mr. BASS. It has not worked for 176 years. This amendment passed only 16 years ago. The amendment providing that the Speaker of the House of Representatives shall succeed to the Presidency was adopted only 16 years ago.

Mr. BAYH. That is a provision which goes into effect only when there is a dual tragedy, when both · the President and Vice President have dropped out of the picture.

Mr. BASS. But not at the same time. The Vice President can die 3 years later.

Mr. BAYH. During the same term of office. ·

Mr. BASS. The Senator does not admit that a matter of time is involved, in that case, but he insists that Congress shall act without delaying tactics in the other matter. I see absolutely nothing wrong in providing that Congress shall act upon the nomination without delay. If there is anything wrong in that, I do not see where it is. I do not see anything wrong in providing that the Congress shall act with dispatch on the recommendation of the President, belonging to one party, when the Congress may oppose the recommendation because it is of the opposite party. All the amendment does is add one word-"immediately.''

Mr. BAYH. No, that is not all there is to it. The Senator wants section 2 to read as the Senator from Rhode Island wants section 5 to read.

The PRESIDING OFFICER. All the time of the Senator from Indiana has expired.

Mr. BAYH. Mr. President, I yield 2 minutes on the bill to the Senator from North Carolina [Mr. ERVIN].

Mr. ERVIN. Mr. President, I wish to reply to the Senator from Tennessee. Section 2 of the resolution does not deal with a vacancy in the office of the President; it deals only with a vacancy in the office of the Vice President:

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

There is a President involved in the language which the Senator from Rhode Island wishes to amend. The Senator from Tennessee wants to amend the provision relating to the nomination of the Vice President. , He says he is afraid that, when the Vice President's office is vacant, Members of the House who are anxious to get their Speaker in the Presidency will "sit still" on the no . nomination until the President dies.

God help this Nation if we ever get a House of Representatives, or a Senate, which will wait for a President to die so someone whom they love more than their country will succeed to the Presidency.

That does not apply to this section. It is based on the idea that either the House or the Senate, when there is a vacancy in the Vice-Presidency, is going to pray for the President to die so somebody they love more than they love their country will succeed to the Presidency.

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

Mr. BASS. Mr. President, I have an amendment at the desk. I offer the amendment.

Mr. BAYH. Mr. President, a point of parliamentary inquiry.

The PRESIDING OFFICER. The Senator will state his point of parliamentary inquiry.

Mr. BAYH. There is an amendment pending, which has been thoroughly debated, by the Senator from Rhode Island. I wish to inquire as to what disposition we can make of that.

The PRESIDING OFFICER. The Senator from Tennessee has offered an amendment to the amendment offered by the Senator · from Rhode Island.

Mr. BAYH. Mr. President, may I yield myself 30 seconds to ask a question of the Senator from Tennessee? Because of the complexity of the issue, will the Senator from Tennessee permit us to get one question voted on, and then he can offer his amendment, or as many amendments as he wants to?

Mr. BASS. I am going to resolve the question by offering a substitute amendment.

Mr. BAYH. Very well.

The PRESIDING OFFICER (Mr. MoN­

TOYA in the chair) . The clerk will report the amendment.

The LEGISLATIVE CLERK. In lieu of the language on page 2, line 16, as offered by the Senator from Rhode Island [Mr. PASTORE l, insert the word "immediately.' . '

Mr. BASS. Mr. President--

The PRESIDING OFFICER. The Chair recognizes the Senator from Tennessee.

Mr. BASS. Mr. President, the only change in the joint resolution would be one word. Only one word would be added to the joint resolution. If the Senator from Indiana will check section 2, only one word, the word “immediately,” which is the word he used in his own sectionin section 5-would be added to section 2 . . This would merely mean that if we had a situation · in which there was a vacancy in the office of the Vice President and the President submitted a nomination, Congress would be required to act with some dispatch. There would be no time limit, no given number of days, but we are using the same language as the language in section 2, which the committee itself wrote into section 5.

This would mean that Congress would have to act with some dispatch.

The only thing it does is add one word to the resolution, which means that Congress would act immediately on the recommendation of the President to confirm a new Vice President.

I can see nothing wrong with asking Congress to act immediately upon recommendation of the President, because if we were in a situation in which one party 1n power would be stalling and delaying the recommendations of the party in power in the White House, we would be in the same situation in which we are

Mr. HRUSKA. Mr. President, will the Senator from Indiana yield me 2 minutes?

Mr. BAYH. Mr. President, I am glad to yield 2 minutes to the Senator from Nebraska.

The PRESIDING OFFICER. The Senator from Nebraska is recognized for 2 minutes.

Mr. HRUSKA. Mr. President, let me make a brief observation. We did consider the word "immediately" in section 5 in that same context.

What does the word "immediately" mean?

Does it mean that there will be no hearings? Does it mean that there will be no debate? Does it mean that there will be no consideration of any kind to determine what kind of person the nomin~e is?

Those are questions which have already been considered; and I earnestly recommend that the amendment be defeated.

Mr. BAYH. Mr. President, I thank the point? Senator from Nebraska and the Senator from North Carolina who have adequately expressed my views. I have tried earlier to do so. I suggest that the Senate now vote.

Mr. BASS. Mr. President, I yield back the remainder of my time. I am ready to vote.

The PRESIDING OFFICER. The question is on agreeing to the substitute amendment of the Senator from Tennessee [Mr. BASS].

The amendment in the nature of a substitute was rejected.

The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Rhode Island.

Mr. HOLLAND. Mr. President, I ask that the amendment be read.

The PRESIDING OFFICER. The clerk will state the amendment.

The LEGISLATIVE CLERK. On page 2, line 16, and on page 3, line 24, after the word "issue," insert the following: "and no other business shall be transacted until such issue is decided."

The PRESIDING OFFICER. The question is on agreeing to the amendment of the Senator from Rhode Island. The amendment . ent was rejected:

The PRESIDING OFFICER. The joint resolution is open to further amendment.

Mr. BAYH. Mr. President--

The PRESIDING OFFICER. If there are no further amendments, the question is on the engrossment of the amendments and the third reading of the joint resolution.

The amendments were ordered to be engrossed, and the joint resolution to be read a third time.

The joint resolution was read the third time.

Mr. HART. Mr. President--:-

The PRESIDING OFFICER. Who yields time to the Senator from Michigan?

Mr. BAYH. Mr. President--

The PRESIDING . OFFICER. The Chair recognizes the · Senator from In- diana. — ... _ .J

Mr. BAYH. I yield myself such time as I may require from the time on the bill.

The PRESIDING OFFICER.

Senator from Indiana is recognized.

Mr. BAYH. I wish to explain and clarify something which has been brought to my attention by the Senator from New York, which has been discussed at some length previously with the Senator · from Michigan and the Senator from Rhode Island.

Let the RECORD show that as the Senator in charge of the bill, I am fully aware of the complexity of the terms with which we are dealing, and feel that the word "inability" and the word "unable," as used in sections 4 and 5 of this article, which refer to an impairment of the President's faculties, mean that he is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office. I should like for the RECORD to include that as my definition of the words "inability" and "unable."

Mr. PASTORE. Mr; President, will the Senator from Indiana yield at that

Mr. BAYH. I yield.

Mr. PASTORE. The statement was made by the Senator from Indiana, on page 20 of the hearings:

Let me intervene momentarily. I am certain the Senator from Nebraska remembers that the record shows that the intention of this legislation is to deal with any type of inability, whether it is from traveling from one nation to another, a breakdown of communications, capture by the enemy, or anything that is imaginable. The inability to perform the powers and duties of the office, for any reason is inability under the terms that we are discussing.

In other words, what the Senator from Indiana has just stated is a clarification of that statement? · Mr. BAYH. The Senator is correct.

Mr. MANSFIELD. Also an indication of the intention of the Senate in consideration of the joint resolution.

Mr. BAYH. Either unable to make or communicate his decisions as to his own competency to execute the powers and duties of his office.

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

Mr. BAYH. I yield.

Mr. HOLLAND. I am in thorough accord with what is intended by the proposed constitutional amendment. There is one thing about the debate which has disturbed me : The proposed amendment does not specifically replace or specifically amend any part of the present Constitution. It does by implication, it seems to me, amend certain portions of article II, section 1, clause 5.

I have been disturbed by what seems to be the assumption by some Senators that the present statute providing for the succession to the Presidency would still be in force.

Looking at these two matters hurriedly, that is the present provision of the Constitution. What is proposed would be a . new section of the Constitution, and would only by implication change the present provision. It would seem to me that that pa . rt of the present Constitution which allows the Congress by statute to declare what officer shall then act as President in the case of the removal, The death, resignation, or inability both of the President and the Vice President, could apply only in two cases.

One would be a situation in which the President and Vice President were both !killed in a common disaster. The second would be where the death of one should come so quickly following the death of another that there would have been no time permitted for the functioning of Congress under the proposed amendment, if it should become a part of the Constitution.

I am asking the Senator in charge of the joint resolution if that is also his understanding as to the only fields in which Congress would be left with statutory authority to provide for the succession.

Mr. BAYH. The Senator is correct; that is the way I would interpret it.

Mr. HOLLAND. The proposed amendment, if it became a part of the Constitution, would reduce the present power of Congress to the two situations which I have outlined in my question.

Mr. BAYH . As the Senator from Florida well · knows, there is a considerable amount of debate as to whether Congress has power to legislate by stat- . ute in this field at the present time. The original succession statute was passed in 1792; and the Congress which passed that statute contained several members of the Constitutional Convention. Their interpretation of article II, section 1, should be considered in light of the succession statute which they passed, which dealt only with succession. The law would apply only when there were two deaths, as the Senator from Florida [Mr. HoLLAND] has described.

In other words, they must surely have interpreted clause 5, to which the Senator refers, reading "Congress may by law provide for the case of the removal, death, resignation, or inability both of the President and of the Vice President,” to mean that that was a limitation on the Congress and that both of those contingencies had to come to pass before it could enact legislation.

Mr. HOLLAND. But, if I may restate my question, in the event the proposed amendment should be adopted and become a part of the Constitution, would it not confine the statutory authority of Congress to the two cases which I have outlined?

Mr. BAYH. Yes. This does not alter it. The Senator is correct .

Mr. HOLLAND. I beg the Senator's pardon.

Mr. BAYH. The Senator is correct.

Mr. HOLLAND. I thank the Senator.

The PRESIDING OFFICER. Does the Senator yield back his time?

Mr. HART. Mr. President, may I ask a few questions, which may help all of us in understanding this subject?

Mr. BAYH. I yield.

Mr. HART. The Senator has just stated a definition of inability, dealing with the impairment of the President so as not to be able to make or communicate a decision as to his own competency. Is it clear that this means far more than disagreement with respect to a judgment he may make, a decision he may make with respect to incapacity and inability, or must it not be based ~pon a judgment that is very far reaching?

Mr. BAYH. The Senator from Indiana agrees with the Senator from Michigan that we are not dealing with an unpopular decision tha;t must be made in time of trial and which might render the President unpopular. We are talking about a President who is unable to perform the powers and duties of his office.

Mr. HART. This may have been clarified in the report, and I plead guilty to not having read it very carefully. With reference to the heads of the executive departments, is it clear that we are talking about those whom we regard as comprising the Cabinet, as referred to in 5 U.S.C. 1 and 2?

Mr. BAYH. The Senator is correct. I ask unanimous consent that there may be included in the RECORD at this point, to further describe the contents of 5 U.S.C. 2, a report that was given to the junior Senator from Indiana by the Library of Congress, which sets this matter out specifically.

Mr. HART. That would be helpful. There being no objection, the report was ordered to be printed in the REcORD, as follows:

THE LmRARY · OF CONGRESS,

LEGISLATIVE REFERENCE SERVICE, washington, D.O., February 18, 1965.

To: Hon. · BIRCH BAYH, Chairman, Senate Subcommittee on Constitutional Amendments.

From: American Law Division. Subject: Executive departments.

Reference is made to your inquiry of February 17, 1965, requesting, among other things some precedents regarding definition of “executive department."

As we informed you during our telephone conversation of above date, the phrase is defined in 5 U.S.C. 2 which provides: "The word 'department' when used alone in this chapter, and chapters 2-11 of this title, means one of the executive departments enumerated in section 1 of this title."

Section 1 referred to above reads as follows: "The provisions of this title shall apply to the following executive departments:

"First, the Department of State.

"Second, the Department of Defense. "Third, the Department of the Treasury. "Fourth, the Department of Justice. "Fifth, the Post Office Department. "Sixth, the Department of the Interior.

"Seventh, the Department of Agriculture. "Eighth, the Department of Commerce.

"Ninth, the Department of Labor.

'Tenth, the Department of Health, Education, and Welfare."

The phrase also makes an appearance in the constitution. Article 2, section 2, clause 1 reads, in relevant part, as follows: "He [President] may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices."

No relevant annotations appear to the foregoing section.

In Brooks v. United. States, 33 F. Supp. 68 (1939) an action brought by an enlistedman in the U.S. Navy to recover reenlistment allowances-the District Court for the Eastern District of New · York examined petitioner's status for purposes of determining whether it was without jurisdiction under the Tucker Act, 28 U.S.C. § 41 (20) (1939). The court stated that the expression "heads of departments" comprehended the members of the President's Cabinet, and did not include a mere bureau head:

"Admittedly, the plaintiff was not appointed by the President or by a court of law and it remains only to consider whether he was appointed by a head of a department. A long line of cases establishes that the term 'Head of a Department' as used in this clause of the Constitution means one of the members of the President's Cabinet. It does not include a mere bureau head. United. States v. Germaine, 99 U.S. 508, 25 L. Ed. 482; Burnap v. United. States, 252 U.S. 512, 40 S. Ct. 374, 64 L. Ed. 692; Steele v. United States No. 2, 267 U.S. 505, 45 S. Ct. 417, 69 L, Ed. 761. Thus in Morrison v. United. States, 40 F. 2d 286, D.C.S.D.N.Y., a petty officer not appointed by the President or a cabinet officer was held not to be an officer of the United States and therefore capable of suing in this court, whereas in Foshay v. United. States, 54 F. 2d 668, D.C.S.D.N.Y., a clerk appointed by the Postmaster General, the head of an executive department, was held to be an officer of the United States and incapable of suing for pay in this court. Oswald. v. United. States, 9 Cir., 96 F. 2d 10, similarly held a court reporter, appointed by the court, under a disability to sue for salary in the district court under the provisions of the Tucker Act. Numerous other cases such as Scully v. United. States, 193 F. 185, 187, C.O.D. Nev., have defined 'officer of the United States' in terms of the constitutional meaning of the records. See, also, United. States v. Van Wert, D.C. Iowa, 195 F. 974; United. States v. Brent, D.C. Iowa, 195 F. 980; McGrath v. United. States, 2 Cir., 275 F. 294."

The holding was reaffirmed in Surowitz v. United. States, 80 F. Supp. 716, 718-:-719 (1948) wherein the court declared:

"This does not mean that the courts have always applied one test of an officer under the criminal law and another under the civil law. The difference resides in the application. The test itself has been fairly uniform; only he is an officer who is an officer in the . constitutional sense, that is (so far as is here involved), a person appointed under authority of law by the head of a department to a post created by law. The head of a department has been authoritatively defined to mean a member of the President's Cabinet. United. States v. Smith, supra; United- States v. Germaine, supra; see Burnap v. United. States, 190, 252 U.S. 512, 515, 40 S. Ct. 374, ~ L.Ed. 692."

In United. States v. Germaine, 99 U.S. 508 ( 1879), the Supreme Court was called upon to determine whether a surgeon appointed by the Commissioner of Pensions was an officer and therefore amenable to prosecution under a criminal statute punishing extortion by an "officer of the United States." The Court held that defendant was not an officer and the Commissioner of Pensions was not the head of a department within the meaning of the Constitution. Portions of the opinion dealing with the later consideration follow: "As the defendant here was not appointed by the President or by a court of law, it remains to inquire if the Commissioner of Pensions, by whom he was appointed, is the head of a department, within the meaning of the constitution, as is argued by the counsel for plaintiffs.

"The instrument was intended to inaugurate a new system of government, and the departments to which it referred were not then in existence. The clause we have cited is to be found in the article relating to the executive, and the word as there used has reference to the subdivision of the power of the executive into departments, for the more convenient exercise of that power. One of the definitions of the word given by Worcester is, 'a part or division of the executive government, as the Department of State, or of the Treasury.' Congress recognized this . in the . act creating these subdivisions of the executive branch by giving to each of them the name of a department. Here we have the Secretary of State, who is by law the head of the Department of State, the Departments of War, Interior, Treasury, and so forth. And by one of the latest of these statutes reorganizing the Attorney General's office and placing it on the basis of the others, it is called . the Department of Justice. The association of the words 'heads of departments' with the President and the courts of law strongly implies that something different is meant from the inferior commissioners and bureau officers, who are themselves the mere aids and subordinates of the heads of the departments. Such, also, has been the practice, for it is very well understood that the appointments of the thousands of clerks in the Departments of the Treasury, Interior, and the others, are made by the heads of those departments, and not by the heads of the bureaus in those departments.

"So in this same section of the Constitution it is said that the President may require the opinion in writing of the principal officer in each of the executive departments, relating to the duties of their respective offices. "The word 'department,' in both these instances, clearly means the same thing, and the principal officer in the one case is the equivalent of the head of department in the other.

"While it has been the custom of the President to require these opinions from the Secretaries of State, the Treasury, of War, Navy, and so forth, and his consultation with them as members of his Cabinet has been habitual, we are not aware of any instance in which such written opinion has been officially required of the head of any of the bureaus, or of any commissioner or auditor in these departments."

In United States v. Hartwell, 73 U.S. [6 Wall.] 393 (1868), the Supreme Court held that one appointed under an act of Congress authorizing an assistant treasurer, with the approbation of the Secretary of the Treasury, to appoint a specified number of clerks, is appointed by the head of a department within the meaning of article II, § 2 . . Germaine, supra, the Court held that it was being consistent with the Hartwell since "it is clearly stated and relied on that Hartwell's appointment was approved by the Assistant Secretary of the Treasury as acting head of that Department, and he was therefore, an officer of the United States."

In Price v. Abbott, 17 F. 506 (1883) the Court held that appointments made by the Comptroller of the Currency, or receivers of national banks, as provided by acts of Congress, are to be presumed to be made with the concurrence or approval of the Secretary of the Treasury, and are made by the head of the department within the meaning of the Constitution.

In Frelinghuysen v. Baldwin, 12 F. 395 (1882) it was held that a receiver of a national bank appointed by the Comptroller of the Currency, who was the chief officer of a bureau of the Treasury Department charged with the execution of all laws passed by Congress relating to the regulation and the issue of a national currency secured by U.S. bonds, was appointed by the head of a department within the meaning of the Constitution, as the Comptroller performed this, as well as all other duties, under the general direction of the Secretary of the Treasury.

We are sending herewith duplicate ·· copies of the material delivered to you last evening, material requested this morning, and loan copies of the United States Code. See in particular 5 U.S.C. 1, 2, 133z-3, 133z-5; the Executive order (No. 10495) following 5 u.s.c. 6.

RAYMONDJ. CELADA,

Legislative Attorney •

Mr. HART. Mr. President, we are talking now, not about th e usual 1 - tion but one which we hope will never occur. The language is clear, but I am afraid that there is no conversation, in terms O f an exchange, even with the manager of the bill, to show that we can avoid what all of us want to avoid; namely, a usurping Vice President w:ho consolidates his position by firmg the Cabinet.

Is there any way in which we can, ~n this exchange on the floor, help to avoid that situation, or make · very clear that this is not the grant that we make?

Mr. BAYH. The Senator from Michigan knows full well the advice and consent authority of the Senate so far as any Cabinet members are concerned.

Mr. HART. · Yes; I do.

Mr. BAYH. He also knows of the twothirds provision, which would be required to sustain the position of the Vice President and his new Cabinet if he were to take this most unfortunate step.

The committee in its hearings discussed this subject at some length, because we must tread a very narrow line, on one side of which we do not want a usurping Vice President to fire the Cabinet, while on the other side we do not want a Vice President who is acting in good cause, say, for example, in a 3- year term of office, being unable to reappoint Cabinet members who may have died or resigned. '

Mr. HART. What about interim appointments to the Cabinet? Is there not some place short of tying the hands of a 3-year incumbent Vice President Pres . President and leaving wide open ~~s possibility? Is it not our responsibility at least to establish the check that a Vice President who becomes President temporarily at least should not be able to appoint a Cabinet majority through interim appointments?

Mr. BAYH. I reiterate what I said ~e- fore. Before the position of the. VIce President could be sustained even m an interim position, the President would have the opportunity, under the provision of section 5, to take this to Congress. Unless the Vice President could be sustained by a two-thirds vote, he would be

Mr. HART. I believe I have voiced the apprehension, which perhaps now more broadly is established than when we were discussing the subject in committee. I believe it is essentially our responsibility in this situation, where we talk about Cabinet appointees over whom ~e have some authority to suggest against interim appointees. Ought we not at least to go that far?

Mr. HRUSKA. I yield myself 3 minutes

That question was considered in committee. we discussed the possibility of the Vice President dispensing with the members of the Cabinet and appointing a Cabinet of his own choosing. Does not the real protection against that kind of situation lie in the good judgment of Congress? If there were an overreach- ate? ing by him which would be that transparent the good judgment of the House and of the Senate would assert itself. congress would say, "We will have no part with that kind of usurpation and 1 s·tua grasping for power."

On the contrary, if by a two-thirds vote Congress agreed with him, a would be the democ:ratic process in action. That is the fashion in which it should be done. The real, ultimate protection is in the good judgment of the Members of Congress, by a two-thirds majority.

Mr. HART. I should like to make one further comment on that.

The PRESIDING OFFICER. Does the Senator from Indiana yield to the Senator from Michigan?

Mr. BAYH. I yield.

Mr. HART. Is it the understanding of the senate, in taking this action, that the Under Secretary, in the event of a vacancy in the office of Secretary, shall be empowered as would the Secretary himself in participating in the decision with respect to ability or disability?

Mr. BAYH. It is the opinion of the junior Senator from Indiana that it is

Mr. HART. This would reduce it by as many Under Secretaries as may be involved in the situation with respect to those who would participate in the Cabinet decision. Is that correct?

Mr. BAYH. I ask the Senator from Michigan—and I know he is asking penetrating questions which are very valuable in making this record clear, and I also know that a scintilla of doubt will remain-but I ask the Senator to look at . the history, in which the role of the Vice President has been quite to the contrary. He has been reluctant to move, al- though urged to do so, particularly in the case of the Garfield situation, when all of his Cabinet urged him. He is a human being, with a conscience and a heart and a soul, and, as the Senator from :North Carolina has said, his political future would be ruined if he attempted to usurp the office.

Mr. MANSFIELD. Mr. President, I ask for the yeas and nays on the passage of the joint resolution.

The yeas and nays were ordered.

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

Mr. BAYH. I yield.

Mr. LAUSCHE. Am I correct in my understanding that there are two situations in which there would be a change in the Executive Office of the Nation: First, whenever the President on his own transmits to the Speaker of the House and the President of the .senate his writ- ten declaration that he 1s unable to discharge his office. I~ that . correct?

Mr. BAYH. That 1s one.

Mr. LAUSCHE. The second is when- ever the Vice President and a majority of the principal officers of the executive departments transmit to the President of the Senate and the Speaker of the House o! Representatives. their written declaration that the President 1s unable to discharge his duties.

Mr. BAYH. The Senator is correct.

Mr. LAUSCHE. That must be confirmed by a two-thirds vote in the SenMr. BAYH. The President would bring the issue and Congress would decide it. The President would have to say "You are wrong."

Mr. LAUSCHE. I have a final question, and I ask it to elucidate . te what the Senator from Michigan has been ask. ing. an instance in which the incapacity of the President would be announced by the Cabinet and the Vice President, is it or is it not a fact that the President would continue in office with full power to veto until such time as the Cabinet, the Vice President, and a two-thirds vote of the Congress had established that the President was incapable of performing his job? ·

Mr. BAYH. No, that is not correct. That question got us into the very touchy question as to who should act during the questionable period, the President or the Vice President. It was the judgment of the committee-and I concur in that judgment--that whenever the Vice President and a majority of the Cabinet, which would have been appointed by the President himself, should become sufficiently concerned that, in the glare of the publicity which would be attendant upon something of the nature that we are discussing, they would make the declaration that there was sufficient doubt, the Vice President would assume the powers and duties of the office while the issue was being tried.

Another reason for the proposal was that we desired to try to prevent a backand-forth ping-pong · sort of situation in which the Vice President and the Cabinet would make a declaration. The President might be out and the Vice President would be in. Then the issue would go to · Congress and Congress might make a declaration that the Vice President should be out and the President in. Under the proposal there would be fewer transfers of power and more continuity, which I feel should be basic.

Mr. LAUSCHE. I should like to ask another question. Suppose that the Vice President should declare that the President is incapacitated, a minority of the members of the Cabinet should say that he is incapacitated, and a majority should say that he is not. Under the joint resolution Congress would proceed to establish its views and would either confirm or reject the findings of the Cabinet and the Vice President. Would the President whose incapacity had been charged have the right to a veto?

Mr. BAYH. Yes, the other body, as Congress may by law prescribe.

Mr. LAUSCHE. That is, if and when Congress should feel that it should step in under the language which provides that such other body as Congress by law · may provide, the Vice President would not act, but the President would continue to act, although he had been charged by the Congress and charged by the Vice President with being incapacitated.

Mr. BAYH. That is correct; and the number of votes prescribed would override the veto, or the same number that would support the Vice President.

Mr. ALLOTT. Mr. President, I am fully aware of the lateness of the hour, but I do not believe the questions asked by the distinguished Senator from Ohio included one that I would like to ask. Section 4 contains a provision that the Vice President shall assume the powers and duties of the office as Acting President under certain conditions.

Section 5 states:

Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the principal officers of the executive department or such other body as Congress may by law provide, transmits within 2 days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office.

There would be a legal aeting President.

Mr. BAYH. That is correct.

Mr. ALLOTT. The President would then send to Congress his written declaration. Who would be President during the 7 days?

Mr. BAYH. The Vice President, the Acting President. I thank the Senator from Nebraska for his suggestion. lt makes a considerable difference. As I explained, we wrote in that language for two basic reasons. First, whenever the Vice President and a majority of the Cabinet of the President who is about to be deposed feel that there is sufficient cause that, in the great heat attendant publicitywise, · they would make such a declaration, there would be a serious enough doubt about the mental capacity-and usually it would be the mental capacity of the President-that the decision would be made, the Vice President would assume the powers and duties as Acting President while the decision was being made by Congress.

Such a provision would cut down the number of times the power of the Presidency would change. We desire to keep it to a minimum. The President would leave the office · ce and the Vice President would take over, and then the Vice President would leave and the President might resume his office, and that would go on down the line.

Mr. ALLOTT. To get to the question in another way, so the issue will be clear, if a Vice President had assumed the duties of acting President, and the elected President then decided that he wished to state that there is no inability any longer, it would be 7 days before he could possibly resume the office of President.

Mr. BAYH. That is correct.

Mr. ALLOTT. There is no question about that. That is the intent.

Mr. BAYH. That is the intent. I should like to clarify the record on one point. The question which the Senator from Colorado has posed about requiring a mandatory 7 days would only apply if there should be a contest under section 5. The provision would not prevent the Vice President and the President agreeing to a lesser period of time.

Mr. HRUSKA. Mr. President, agree- . ments devised by the President and his Vice President in past administrations to cope with an inability crisis are not satisfactory solutions. Recent history has also made us very much aware of the need for filling the office of Vice President when a vacancy arises.

It is abundantly clear that, rather than continue these informal agreements, the only sound approach is the adoption of a constitutional amendment.

The hearings, which have been held on this important subject in recent years and in which this Senator has had the opportunity to participate, have led me to prefer a different approach than the present one. As in other legislative matters, the finished product requires the refinement of individual preferences. In the spirit of this simple reality, I shall support the proposed amendment. It is my earnest hope that the Congress and the State legislatures will approve and ratify it promptly.

There are two major reasons for my acceptance of the proposed amendment. The first is the urgent need for a solution. Differences of opinion in Congress have deprived us of a solution for far too long. It is time that these constitutional shortcomings be met.

Secondly, the proposed language approaches the product which would have resulted under the proposal which I had urged, so that this amendment is acceptable as proposed and amended.

The refinements that have been made on the original language of Senate Joint Resolution 1 will clarify the detailed procedure to be followed in a case of disability.

The role of Congress is narrow. It is as an appeal open to the President from the decision of the Vice President and the members of the Cabinet. It will be brought into the matter only in those limited circumstances where the Vice President, with a majority of the principal officers of the executive departments, and the President disagree on the question of restored ability. It is important to note that Congress will not have the power to initiate a challenge of the President's ability.

The procedure by which Congress shall act is properly left to later determination within rules of each branch thereof. A point of possible conflict is resolved in the understanding that Congress shall act as separate bodies and within their respective rules.

The language that "Congress shall immediately proceed to decide the issue" leaves to Congress the determination of what, in light of the circumstances then existing, must be examined in deciding the issue. Thus, the matter will be examined on the evidence available. It is desirable that the matter be examined with a sympathetic eye toward the President who, after all, is the choice of the electorate.

It is apparent that Senate Joint Resolution 1 does have aspects which alleviate the dangers attendant to a crisis in presidential inability. Nevertheless, it is felt by this member of the committee that caution and restraint will be demanded should this inability measure be called into application. ·

A time does arrive, however, when we must fill the vacuum. The points which I have emphasized and Previously insisted upon are important; but having a solution at this point is more than important, it is urgent. For this reason, I support Senate Joint Resolution 1 and urge its passage. I hope that it will be given expeditious approval by the other body and early ratification by the required number of States.

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

Mr. HRUSKA. I yield back the remainder of my time.

' The PRESIDING OFFICER. All time having been yielded back, the question is, Shall the joint resolution pass?

On this question 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 J, the Senator from Nevada [Mr. BIBLE], the Senator from Pennsylvania [Mr. CLARK], the Senator from Arkansas [Mr. FULBRIGHT], the Senator from Tennessee [Mr. GoRE], the Senator from Alaska [Mr. GRUENING], the Senator from Utah [Mr. Moss], the Senator from Oregon [Mrs. NEUBERGER], the Senator from Wisconsin [Mr. PROXMIREJ, the Senator from Florida [Mr. SMATHERS], and 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 illness.

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 Senator from Minnesota [Mr. MoNDALE], the Senator from Maine [Mr. MusKIEJ, the Senator from Wisconsin [Mr. NELSON], the Senator from Connecticut [Mr. RIBICOFF], and the Senator from Missouri [Mr. SYMINGTON] are necessarily absent.

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 Arkansas [Mr. FULBRIGHT], the Senator from Tennessee [Mr. GoRE], the Senator from Alaska [Mr. GRUENING], the Senator from South Carolina [Mr. JoHNSTON], the Senator from North Carolina [Mr. JoRDAN], the Senator from Massachusetts [Mr. KENNEDY], the Senator from Minnesota [Mr. MoNDALE], the Senator from Utah [Mr. Moss], the Senator from Maine [Mr. MusKIE], the Senator from Wisconsin [Mr. NELSON], the Senator from Oregon [Mrs. NEUBERGER], the Senator from Wisconsin · [Mr. PRoxMIRE], the Senator from Connecticut [Mr. RIBICOFF], the Senator from Georgia [Mr. RussELL], the Senator from Florida [Mr. SMATHERS], the Senator from Missouri [Mr. SYMINGTON], and the Senator from New Jersey [Mr. WILLIAMS] would each vote "yea."

Mr. DIRKSEN. I announce that the Senators from Kentucky [Mr. CooPER and Mr. MORTON], the Senator from New York [Mr. JAVITS], the Senator from Idaho [Mr. JoRDAN] and the Senator from Iowa [Mr. MILLER] are necessarily absent.

The Senator from California [Mr. KucHEL] is absent on ofHcial . business. The Senator from Colorado [Mr. DoMINICK] and the Senator from California [Mr. MURPHY] ' are detained on official business.

If present and voting, the Senator from Kentucky [Mr. CooPER], the Senator from Colorado [Mr. DoMINICK], the Senator from New York [Mr. JAVITS], the Senator from Idaho [Mr. JoRDAN], the Senator from California [Mr. KucHELJ, the Senator from Iowa [Mr. MILLER], the Senator from Kentucky [Mr. MoRTON] and the Senator from California [Mr. MuRPHY] would each vote "yea."

The yeas and nays resulted-yeas 72, nays 0, as follows:

[No. 24 Leg.)

YEAS-72

Aiken Fong Monroney All ott Harris Montoya Bartlett Hart Morse Bass Hartke Mundt Bayh Hayden Pastore Bennett Hickenlooper Pearson Boggs Hlll Pell Brewster Holland Prouty Burdick Hruska Randolph Byrd, Va. Inouye Robertson Byrd, W.Va. Jackson Saltonstall Cannon Kennedy, N.Y. Scott Carlson Lausche Simpson Case Long, Mo. Smith Church Long, La. Sparkman Cotton Magnuson Stenn1s Curtis Mansfield Talmadge Dirksen McCarthy Thurmond Dodd McClellan Tower Douglas McGee Tydings Eastland McGovern Williams, Del. Ellender Mcintyre Yarborough Ervin McNamara Young, N.Dak. Fannin Metcalf Young, Ohio

NAY8-0 NOT VOTING-28

Anderson Jordan, N.C. Nelson Bible Jordan, Idaho Neuberger Clark Kennedy, Mass. Proxmire Cooper Kuchel Ribicoff Dominick Miller Russell Fulbright Mondale Smathers Gore Morton Symington Gruening Moss Williams, N.J. Javits Murphy Johnston Muskie

The PRESIDING OFFICER (Mr. MoN­

TOYA in the chair). Two-thirds of the Senators present having voted in the affirmative, the joint resolution (S.J. Res. 1) is passed.

Mr. BAYH. Mr. President, I move that the Senate reconsider the vote by which the joint resolution was passed.

Mr. HRUSKA. I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. MAGNUSON. Mr. President, earlier I had asked the Senator from Indiana to yield for 10 seconds, but I did not pursue my request because I wanted to have the joint resolution passed promptly. But I believe it is apropos now, after all the discussion today, that the Senate should wish the President and Vice President good luck and good health.