July 6, 1965

The PRESIDING OFFICER. Under the unanimous-consent agreement, the Chair lays before the Senate the pending businesS, which the clerk will state.

The LEGISLATIVE CLERK. Report of the committee of conference on the disagreeing votes of the two Houses on the amendment of the House to 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 office.

The Senate resumed the consideration of the report.

The PRESIDING OFFICER. Who yields time?

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

The PRESIDING OFFICER. The Senator will state it.

Mr. BAYH. It is my understanding that under the unanimous-consent agreement adopted by the Senate earlier, the time is to be controlled, 1 hour by the distinguished Senator from Tennessee [Mr. GORE] and 1 hour by me.

The PRESIDING OFFICER. Under the agreement, there is a limitation of 2 hours, 1 hour on each side.

Who yields time?

Mr. BAYH. Mr. President, the Senator from Tennessee [Mr. GoRE] has a prepared speech. I do not desire to engage in colloquy.

I will yield myself just 2 minutes to say that this has been a much discussed subject over the 187 years of our history. The record over the past 187 years is replete with studies by the Congress, the Senate, and individuals concerned.

The purpose of the constitutional amendment, the conference report on which we are now called to approve, is to provide a means which we have devised by which the Vice President will be able to perform the powers and duties of the office of the President if the President is unable to do so. ·

Mr. President, in my estimation, it is impossible to devise a bill or a constitutional amendment which can cover all the contingencies in this particular, complicated field, but this Congress has gone further than any of its predecessors toward meeting the problem.

On the last day of the debate I went into some detail to specify the details of the report. I do not believe it is necessary to do so again today, unless some of my colleagues wish to question me or engage in colloquy.

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

Mr. BAYH. I am glad to yield to the Senator from New York, who has contributed so much to bringing us in the position we now find ourselves.

Mr. JAVITS. I am gratified by the statement of the S"enator. I read the RECORD over the weekend and thought a great deal about the subject over the weekend and thought again about the relatively close questions which the Senator from Tennessee, the Senator from Indiana, I, and other Senators discussed. I had the good fortune to read in one of the New York newspapers, the Herald Tribune, a fine editorial on the subject, which, if the Senator will permit me, I ask unanimous consent to have printed at · this point in the RECORD as a part of my remarks.

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

There being no objection, the editorial was ordered to be printed in the RECORD, as follows:

CLARIFYING THE PRESIDENTIAL SUCCESSION

Hopes that this session of Congress would see the beginning of the end of a very serious hiatus in the present laws governing the succession to the Presidency-what is to be done if a President still lives, but is incapacitated from serving-have been discouraged. The Senate had passed a proposed amendment covering this contingency; the House passed a somewhat different version. A conference committee reconciled the two, and its solution was accepted by the House. Then a sudden uprising by some Democratic Senators (including Our OWn ROBERT KENNEDY) saw flaws in the amendment and obtained a delay in the Senate vote until tomorrow.

It is to be hoped that the Senate will weigh the theoretical objections put forward by the amendment's opponents against the very real dangers that now ex i st. The amendment tries manfully to cover all contingencies, but it obviously cannot prevent a group, infecting both the administration and Congress, from attempting to subvert the spirit of our institutions and affronting the good sense of the American people by seeking to have a sane and healthy President declared incapable of performing his duties. If such a desperate situation should arise, the lack of the proposed amendment would not stop the conspirators. It did not arrest the attempt to oust President Andrew Johnson by impeachment, for example-which failed by only one vote.

But the amendment would foreclose the possibility of another such constitutional nightmare as occurred when President Wilson was felled by a stroke and the countryto all appearances-was governed by his wife. This portion of the amendment is, in other words, about as sound as human forethought can make it. It relies, to some extent, upon the integrity and good sense of the men elected to high office by the American people. But so does everything else in our Constitution.

In other respects, too, the amendment makes needed reforms. It provides for filling a Vice-Presidential vacancy by Presidential appointment, confirmed by Congress. This is a better arrangement than the various succession acts passed by Congress since 1792, and fleshes out the 20th amendment, which deals chiefly with the problems arising between the election of a President and his inauguration. The amendment is good and necessary. It will require months to acquire approval by the necessary two-thirds of the States and should not be further delayed by counsels of impossible perfection nor by fears of what would be, in fact, revolution. Mr. JAVITS. Mr. President, this is a tremendously important measure, a historic development in the field of Presidential succession, and we have spent a great amount of time working it out in detail. Senators who have raised questions about the matter have been statesmenlike about it and have not necessarily said that they would vote against it.

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

Mr. BAYH. I yield 1 minute to the Senator from New York.

Mr. JAVITS. We all know that in many areas of legislation, especially in the field of constitutional amendments, Hill we cannot spell out all the details. If an attempt to do so is made, we get into more trouble than if an effort was not made and we leave it open to further implementation.

What we discussed about the exclusivity of action of a body provided for by Congress would properly be a subject of legislation. If Congress chose not to act, it would be making a choice that the machinery provided for in the amendment should operate.

The argument that not everything is "buttoned down" by the proposed amendment is not, in my judgment, persuasive. We should not "monkey around" with the amendment to provide for something which could be taken care of by legislation by Congress.

There are many occurrences which are tantamount to revolution which could take place to immobilize our Government. Suppose the Senate and the House should refuse to approve any appropriations for the carrying on of the Government. It would immobilize

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

Mr. BAYH. I yield 1 minute to the Senator from New York.

Mr. JAVITS. That would immobilize us as much as would be the case if, contrary to acting in good faith, Congress chose not to legislate in the utilization of the amendment.

So, after further deep consideration of the matter, I have come to the conclusion that notwithstanding the questions I expressed, which were in the form of exploratory questions, we have come as far as Congress can go, as the saying is, and I shall vote to approve the conference report.

Mr. BAYH. I thank the Senator. I believe that the colloquy that we had, I, being in charge of the conference report, was helpful in the last discussion.

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

Mr. GORE. Mr. President, I ask unanimous consent that I may suggest the absence of a quorum, and that the time be equally divided.

Mr. BAYH. Mr. President, I think this is unnecessary. If the Senator wishes to take it out of his own time--

Mr. GORE. Mr. President, I withdraw the request.

Mr. President, I suggest the absence of a quorum, and ask unanimous consent that the time be not charged to either side.

The PRESIDING OFFICER. Without objection, it is so ordered, and the clerk will call the roll . .

The legislative clerk called the roll, and the following Senators answered to their names:

[No. 163 Leg.]

Allott Inouye Muskie Anderson Jackson Pearson Bass Javits Pell Bayh Jordan, Idaho Proxmire Boggs Kennedy, N.Y. Ribicoff Burdick Long, La. Robertson Church McCarthy Smith Clark McGovern Sparkman Dirksen McNamara Stennis Ervin Metcalf Symington Gore Monroney Talmadge Harris Morton Young, N.Dak.

Moss

Holland Mundt

The PRESIDING OFFICER. A quorum is not present.

Mr. LONG of Louisiana. I announce that the Senator from Nevada [Mr. BIBLE], the Senator from Louisiana [Mr. ELLENDER], the Senator from Nevada [Mr. CANNON], the Senator from Arkansas [Mr. FuLBRIGHT], the Senator from North Carolina [Mr. JORDAN], the Senator from Missouri [Mr. LONG J, the Senator from Washington [Mr. MAGNUSON], the Senator from Montana [Mr. FIELD], the Senator from New Mexico [Mr. MONTOYA], the Senator from Oregon [Mrs. NEUBERGER], the Senator from West Virginia [Mr. RANDOLPH] and the Senator from Oregon [Mr. MoRSE] are absent on official business.

I also announce that the Senator from Alaska. [Mr. BARTLETT], the Senator from Virginia. [Mr. BYRD], the Senator from Mississippi [Mr. EASTLAND], and the Senator from Indiana [Mr. HARTKE] are absent on official business.

Mr. KUCHEL. I announce that the Senator from Vermont [Mr. AIKEN], the Senator from Colorado [Mr. DOMINICK], the Senator from Nebraska [Mr. HRUSKA], and the Senator from California [Mr. MURPHY] are absent on official business. .

The Senator from Utah [Mr. BENNETT], the Senator from Kansas [Mr. CARLSoN], the Senator from New Hampshire [Mr. CoTTON], the Senator from Hawaii [Mr. FoNGl, the Senator from Massachusetts [Mr. SALTONSTALL], and the Senator from Wyoming [Mr. SIMPSON] are necessarily absent.

Mr. BAYH. Mr. President, I move that the Sergeant at Arms be directed to request the attendance of absent Senators.

The PRESIDING OFFICER. The question is on agreeing to the motion of the Senator from Indiana.

The motion was agreed to.

The PRESIDING OFFICER. The Sergeant at Arms will execute the order of the Senate.

After a little delay Mr. BREWSTER, Mr. BYRD of West Virginia, Mr. CASE, Mr. COOPER, Mr. CURTIS, Mr. DODD, Mr. DOUGLAS, Mr. FANNIN, Mr. GRUENING, Mr. HART, Mr. HAYDEN, Mr. HICKENLOOPER, Mr. KENNEDY of Massachusetts, Mr. KUCHEL, Mr. LAUSCHE, Mr. McCLELLAN, Mr. McGEE, Mr. MciNTYRE, Mr. MILLER, Mr. MONDALE, Mr. NELSON, Mr. PASTORE, Mr. PROUTY, Mr. RUSSELL of South Carolina, Mr. RUSSELL of Georgia, Mr. SCOTT, Mr. SMATHERS, Mr. THURMOND, Mr. TOWER, Mr. TYDINGS, Mr. WILLIAMS of New Jersey, Mr. WILLIAMS of Delaware, Mr. YARBOROUGH, and Mr. YOUNG of Ohio entered the Chamber and answered to their names.

The PRESIDING OFFICER (Mr. KENNEDY of Massachusetts in the chair). A quorum is present.

Who yields time?

Mr. GORE. Mr. President, I yield 15 minutes to the senior Senator from Minnesota.

Mr. McCARTHY. Mr. President, I believe that the Senate acted wisely in putting off action on the conference report for a few days so · that we could carefully examine the language in the proposed amendment and so that all Senators, rather than the four or five who participated in the discussion last week, might be fully aware and informed as to the committee interpretation and what would then be the congressional interpretation of what the proposed amendment to the Constitution would actually mean.

I note again that we are not enacting a statute, something which we could change in this Congress or in any subsequent Congress. We are acting on a constitutional amendment which would establish the procedure for the indefinite future.

I have serious reservations about more than the language of the amendment. I have very serious reservations about the substance of the amendment itself. It was my view when the question of presidential disability and vice-presidential succession was raised that there was sufficient authority in the Constitution to permit Congress to proceed by statute. · Paragraph 6, section 1, of article II of the Constitution gives Congress power to legislate in the area of presidential disability and of succession of a Vice President. This section of the Constitution reads:

In case of the removal or' the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

It is my judgment that we could act by statute to meet both the problem of succession and disability. There are constitutional authorities who feel that we have power to act in case of a vacancy in the vice-presidency. However, there is some question as to our ability to act in case of disability.

I am willing to abide by the judgment of those who thought we needed a constitutional amendment. It was my opinion that the amendment should be a simple one and should make clear the right and authority of Congress to act by statute.

This was the opinion of Deputy Attorney General Katzenbach when he testified before the committee in 1963 and in his statement submitted to the committee in 1964. He asked for a simple constitutional amendment; and, following that, for action on the part of Congress to spell out the procedures by which inability might be determined and also by which the commencement and termination of any inability would be determined.

This is not the issue involved today. Congressional committees, in both the Senate and House, have considered, I am sure, the possibility of a simple amendment to leave the way open to proceed under statute but they have not approved this method.

At this time, we are preparing to take what will probably be final action or, at least, the last chance to review the proposed amendment.

It has been argued that State legislatures would give a thorough review to the matter. We were informed last week that one State legislature was holding up action until after Congress had acted on the matter so that it would be the first State legislature to ratify the measure. It may be that the State legislature studied the matter and is fully informed as to the amendment. However, I have very grave doubts that this is so. I believe that after Congress acts on the matter, ratification by the States will be almost routine.

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

Mr. McCARTHY. I yield.

Mr. GORE. Mr. President, I wonder if the able Senator believes that the members of the legislature which was awaiting the adoption of the conference report by the Senate in order to be the first State to ratify the amendment could have had an opportunity to read the conference report and determine that the conferees had added certain words to the language. Two of the words were "pro tempore." Another was "either," and the other word was "of."

The conference report did relate that minor changes in language had been made. However, I wonder if the Senator believes that the insertion of the word "either" in the Constitution of the United States, having to do with two bodies, either of which, under the terms of the pending amendment, would play a part in the declaration of presidential disability is a minor matter, and if the State legislature to which the Senator referred was aware of this fact.

Mr. McCARTHY. Mr. President, I believe that it could very well be a most serious matter. Certainly, the language of the amendment as sent to conference would be preferable to this language.

I know that the Senator from Tennessee has given much study to the meaning of the words and the application of the disjunctive alternative of ''either/or" in this case.

The Senator will speak on that at some length later today. I should say that we are writing new meaning into the word "either," and that if we were to approve the draft which is before us from the conferees, we would be ignoring every treatise of grammar in which it is pointed out that if we use the word ''either/or," we are providing a choice. They are alternatives. One does not include the other. We ought to use words in their logical meaning when we write them into the Constitution of the United States.

I had hoped that Senators who were handling the matter would agree to return to conference. I believe that the matter could have been cleared up in a 4- or 5-minute conference with Representatives of the House. The word "either" appears to have been dropped into the amendment almost by inadvertence. It was not used as a result of carefully considered judgment. It is not a word that was weighed or was subject to any prolonged discussion in conference.

I hope that the Senate will give consideration to the possibility of what I think might create great confusion when and if this amendment is ever put to the test. If such an occasion should arise, it could be at a time when the entire constitutional structure of the United States would be subject to its most severe test in history.

The question of having two Presidents, each of . whom desires to perform the duties of office, and the question of having two cabinets or of trying to deter­ ceive. mine when the functions of one Cabinet came to an end, might be impossible of solution. The President could end the term of office of the members of the Cabinet with a mere declaration. There would be no way to determine whether they could participate in the making of the judgment provided in the proposed amendment.

It is my opinion that the Vice President should have been excluded in any case. This question has been considered by the committee. The committee has decided that the Vice President should be the key man.

No one, under this amendment, can take action with reference to the inability or disability of the President unless such action has the concurrence of the Vice President. The procedure which is provided by the Constitution for impeachment provides for action by the House of Representatives and the Senate. I believe that, as elective officials of the country, Congress should be willing to assume its full responsibility.

I had hoped that the conferees might have gone back and at least cleared up the point raised by the Senator from Tennessee, although, as I have said, my preference would be for an amendment giving Congress the clear authority to act by statute. This was evidently the position concurred in by Attorney General Katzenbach in his original testimony before the committee, and also by several other members who said that the amendment is not what they would have written had they been free to write it. I had hoped that these more substantive matters would have been considered--

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

Mr. McCARTHY. I yield.

Mr. BAYH. Mr. President, I do not want the record to be incorrect in expressing the present position of the Attorney General. Is the senior Senator from Minnesota aware of the testimony given by the Attorney General before the tion 1. committee in 1965?

Mr. McCARTHY. I knew the Attorney General was supporting the amendment.

Mr. BAYH. I thank the Chair.

Mr. McCARTHY. I was referring to what was his preferred position when as Deputy Attorney General he testified on the constitutional amendment dealing with Presidential inability. I believe his original position was sound, although, as in the case of many other people, he is willing to support the proposed amendment because of the urgency of the situa-. tion.

Mr. BAYH. But the Attorney General did say, before the Subcommittee on Constitutional Amendments of the Committee on the Judiciary, that he believed the proposed amendment was the best alternative that has been conceived.

Mr. McCARTHY. I do not know whether he said it was the best alternative that has been conceived. He said it was the only possible course of action rather than no action at all, not that it was better than any alternative that was ever conceived. He conceived one which he thought was the best he could con­

Mr. BAYH. It might be well to have in the RECORD at this point the Attorney General's letter which was placed in the RECORD on the date of the debate when the Senate passed this measure 72 to nothing, if the Senator from Minnesota and the Senator from Tennessee have no objection.

Mr. McCARTHY. I have no objection. I know the Attorney General is supporting the amendment. I know what his opinion as stated publicly was. I know what his private opinion was. I know what the opinion which he gave to the Judiciary Committee was.

Mr. BAYH. May I ask that the letter may be made a part of the RECORD at this point, so that subsequent scholars may have the advantage of it?

Mr. McCARTHY. Yes.

Mr. BAYH. Mr. President, I ask Unanimous consent that the letter to which I have referred be printed at this point in the RECORD.

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. BircH BAYH, U.S. Senate, Washington, D.C.

DEAR SENATOR BAYH: I understand that recent newspaper reports have raised some question 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 enact appropriate legislation for determining when inability commences and when it terminates. Obviously, more than one acceptable solution to the problem of Presidentialinab111ty 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 con­ ident. sensus 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 ResoluMy views on the particular question here involved were stated on January 29 · , 1965, before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, 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 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." ·

I reaffirmed these 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. GORE. Mr. President--

The PRESIDING OFFICER. How much time does the Senator from Tennessee yield to himself?

l'.rr. GORE. Such time as I may desire.

This is the last opportunity for any group of men in any body politic to revise or clarify the language of the proposed amendment. The House has already adopted the conference report. Should the Senate adopt the conference report in its present form, the proposed amendment would then go to the States for ratification. If the a · amendment is ratified by three-fourths of the State legislatures, it will then become a part of the U.S. Constitution.

The States will have no choice except to ratify or reject the amendment in the form submitted. That is why I say this is an important action on the part of the Senate.

The charter of our Republic is a precious document. Amendment of it should be approached with the greatest gravity.

In the beginning of our Republic the candidate for President who received the second largest vote became Vice President. The country's experience under that provision soon led to trouble, so much so that in 1804, I believe, the Constitution was amended so that the Vice President would be elected to a separate office by separate vote. Thus, it was sought to minimize the possibility con­ of flict between a President and a Vice President. July 1965 the U.S. Senate is again undertaking to deal with the question of the President and the Vice President of the United States.

On last Wednesday, when the conference report on Senate Joint Resolution 1 was before the Senate, I was one of those who urged that the vote on the conference report be delayed to permit additional time for Senators to examine the language of the proposed constitutional amendment before taking the final congressional action on what would be one of the more important amendments ever adopted to our Constitution.

I wish to make it clear that I did not then, nor do I now, seek either to block action on or otherwise defeat an amendment which would fill an existing procedural void in the area of presidential succession and presidential disability. The tragic events of November 1963 have served to call to · the attention of the American people that failure to act on this matter might, at some time in the future, pose serious consequences to our Republic. Indeed, we should regard ourselves as most fortunate that we have not already, at some time in our history, experienced a grave constitutional crisis for want of a procedure for determining with certainty the fact of presidential disability. Clarity and certainty are the essential characteristics of any constitutional provision dealing with the subject.

The basic objective of an amendment such as we now consider should be the provision of a procedure certain for the declaration of disability of a President of the United States, but I submit that the provision now before the Senate provides an uncertain procedure.

In my opinion, the language of section 4 of the proposed amendment, which deals with the determination of the fact of Presidential disability by means other than the voluntary act of the President himself, lacks the degree of clarity and certainty required if the objective of this section of the amendment is to be achieved. If the fact of Presidential disability should ever become a matter uPon which a President and other authorities designated in the amendment are in disagreement, the most essential requirement is that the procedure for making the determination be clear and precise, with the identity of those charged with responsibility for making the determination beyond question. Should the procedure not be clearly and precisely defined, or if the identity of the determining authority should be subject to conflicting interpretations, this Nation could undergo the potentially disastrous spectacle of competing claims to the power of the Presidency of the United States. This is precisely the risk which this section of the amendment is designed to avoid, but which, Mr. President, may be the result if this amendment should be adopted in its present form.

In my opinion, the language of section 4, if unchanged, is subject to conflicting interpretation-to say the leastand might create a situation in which a serious question could arise as to whether Presidential disability had been constitutionally determined.

I invite attention to the report of the Senate Judiciary Committee, on page 11 : We must not gamble with the constitutional legitimacy of our Nation's executive branch. When a President or a Vice President of the United States assumes office, the entire Nation and the world must know without doubt that he does so as a matter of right.

I submit that under the proposed amendment one might assume or claim the power of the Presidency, not without doubt but under a cloud of doubt.

Let me read the first sentence of section 4:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

I invite attention to four words in the above sentence--all four of which were added in conference. This is not the same language as that upon which the Senate previously voted. The words added in conference are " either," "of," and "pro tempore."

These words do not appear in the section as it was approved unanimously by the Senate. The addition of the words "pro tempore" effected a change in the Senate version to conform to the language of the House version so as to provide that a declaration of presidential disability should be transmitted to the President pro tempore of the Senate rather than the "President of the SenI raise no question about that.

The statement filed by the managers on the part of the House, referring to the addition of the words "either" and "of", states that "minor change in language was made for purposes of clarification." The addition of these two words was, in my opinion, more than a minor change in language. This is a change in language which is proposed to be written into the Constitution dealing with one of the most sensitive events of our Republic; namely, the possible declaration of disability . of a President of the · United States.

In the absence of implementing action by Congress, it is clear that a declaration of presidential disability may be transmitted to the Congress by the Vice President acting in concert with a majority of "the principal officers of the executive departments." Hereafter I shall refer to the principal officers of the executive departments as members of the Cabinet. To me, it also seems clear, under the language of the provision, that if Congress should "by law provide" some "other body," the Vice President might then be authorized to act in concert with either the Cabinet or such other body.

How can any other meaning be read into the words “either” and "or"?

Let us reverse the sentence. The Senator from Indiana says that the Cabinet would have the primary responsibility. The amendment does not so provide. In reversing the sentence, let us see how it would read and whether it would be changed in any way .

First, I read the sentence as it now appears:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congre s s may by l a w provide, transmit to the President pro tempore of the Senate and the Spe a ker of the House of Representatives their written declaration that the President is unable to disch a rge the powers and duties of his office , the Vice President shall immediately assume the powers and duties of the office as Acting President.

Now, Mr. President, I read the sentence in a revised form, and ask whether it would change the meaning in any respect:

Whenever the Vice President and a majority either of such other body as Congress may by law create or a majority of the principal officers of the executive departments transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

If one changes the sequence in which the Cabinet and some other body created by Congress appear in the sentence, one still will have "either" and "or." It would be in the alternative. I do not know how "either" and "or" would give primary responsibility to one and secondary responsibility to the other.

I do not know how the words "either" and "or" can be interpreted to mean that one part has priority, or how it could be read to mean that if the other body is created, the first body has no responsibility and no power to act.

If I understand anything about the English language, if either the Senator or I is privileged to act, then either of us can act or both of us can act. Therefore, I insist that when the conferees added these words, they did more than make a minor change of language for purposes of clarification . I believe that I . know why it was added-at least I have been so advised-to make it clear that the Vice President would participate in the declaration of disability with a body created by law if such were done.

But in adding the words, they established the possibility of two coequal bodies--coequal in responsibility under the Constitution--coequal in authority to act in concert with the Vice President to declare the disability of a President of the United States.

I do not believe this effect can be eliminated by a statement of legislative intent.

If my interpretation of the language is correct-and it seems to me that is what the words used clearly say-the Vice President would be free to choose to ally himself with either of the groups, depending upon which included individuals sympathetic with his view of the then current situation. And it is entirely possible that there might be differing views among members of the Cabinet appointed by the President, on the one hand, and members of a group designated by the Congress, on the other hand, on the question of whether a President suffers "disability."

Under the above interpretation-which is my interpretation-a Vice President would be in a position to "shop around" for support of his view that the President is not able to discharge the duties of his office. When the constitutional requirements have been met, it is the Vice President upon whom the duties and powers of the Presidency would devolve.

I should not like to indulge in the assumption that at any future time some diabolical person would be Vice President of the United States. However, the Constitution is the charter for our Republic. Rights must be safeguarded; so must constitutional procedure.

Let me repeat that we seek by this proposed amendment to provide a procedure certain for a declaration of disability of the President of the United States. I submit that the language of the conference report creates uncertainty, rather than certainty. This uncertainty cannot be eliminated by a statement of legislative intent, particularly so when the stated intent is not supported by the precise language of the amendment.

I should like to suggest, although it does not involve any assumption that we shall ever have a diabolical person as Vice President, that where there is a way we must guard against possibility of the will, and beware of the old adage that where there is a will there is a way.

Questions have been raised about the approach taken by this section of the amendment." In my view there is some validity to these questions. Whether the Vice President, who would become Acting President, should have any part in making a determination of presidential disability is, to say the least, debatable.

Were I privileged to reconsider the whole matter, I should want to think about this one point a long time. However I do not press this point now. I recognize that it is perhaps not possible to devise a procedure which would meet with unanimous approval. Members of the Judiciary Committee who have worked long and diligently on this matter state that this is an approach upon which it is possible to reach agreement. I accept their statement in this regard. I know it is difficult. We have been considering this subject for months. However, is that justification for adopting an amendment on which Senators are in disagreement as to its meaning? Does not this invite a controversy that would have to be resolved by the Supreme · Court of the United States at a possibly critical hour in the history of our country? If Senators cannot agree upon the meaning of the language of the amendment, how do we expect the State legislatures to have a clear and precise understanding?

I do not seek to defeat the proposed amendment, but I ask for rejection of the conference report, which changed the language of this provision, not in a minor manner, but in a major way and, I think, in a dangerous way. I ask that the conference report be rejected and that a further conference with the House be requested. Why should there not be an attempt to clarify the meaning or to refine the language of the amendment? If it is the intent that the Cabinet have the primary responsibility, the amendment should so state. If it is the legislative intent that once Congress had created another body the Cabinet would no longer have any responsibility, the amendment should so provide. If that is what we mean, let us say what we mean. Otherwise, how can the legislatures of our respective States act with a clear understanding of what an amendment to the Constitution of the United States in this delicate field means?

If the Vice President is to participate in the disability determination procedure, there should be no question whatever about the identity of the group which would jointly exercise the responsibility with him. Under my interpretation of the language used, a Vice President would be able to act in concert with either of the two groups--and I say again that the word "either" was added in conference-assuming that Congress had acted to create the second group. This would be the language of the Constitution upon ratification of the amendment as now drafted.

In the course of the debate last Wednesday, the manager of the bill, the distinguished junior Senator from Indiana [Mr. BAYH] and the distinguished senior Senator from New York [Mr. JAVITsl disagreed with my interpretation of the language used. It was their view that, if and when the Congress acted to provide by a law a body other than the Cabinet to share the responsibility with the Vice President, the Cabinet would thereafter be removed from the picture altogether. How? The amendment does not so provide. The amendment, once it becomes a part of the Constitution of the United States, will vest in the Vice President and a majority of the Cabinet the power to declare the disability of the President. ·

My friend the distiguished junior Senator from Indiana and the senior Senator from New York maintained that, after another body was created by law, only the Vice President and the body created by act of Congress could make a declaration of disability. Does the amendment so provide? I ask my colleagues in the Senate to read it. It does not. It provides that a majority of either one or the other could act in concert with the Vice President to declare the disability of the President.

The Senator from New York contended that the Congress, in the act creating "such other body," might undertake to eliminate the Cabinet, and that the courts in applying a rule of "exclusivity" would rule that since the Congress had acted, the body designated by Congress would possess the authority exclusively. The Senator from Indiana appeared to adopt this view.

The amendment does not so provide. I know of no rule of exclusivity which provides or could provide that a legislative enactment would take precedence over an express provision of the U.S. Constitution, which this amendment, if adopted, would become.

I do not subscribe to the view that Congress, even should it affirmatively undertake to do so, could by statute deny authority and responsibility conferred upon the Cabinet by what would then be an express and integral provision of the Constitution.

I should like to read again the language proposed:

Whenever the Vice President and a majority of either the principal officers of the executive departments--

Let us leave out the words "either" and "or." I should like to read it in this Whenever the Vice President and a majority of the principal officers of the departments transmit to the Pres-ident pro tempore of the Senate a statement of the declaration of disability of the President.

That is a part of the amendment. I submit that we cannot take that language out of the Constitution by statute once we write it in. A further am.endment to the Constitution would be required.

But without pressing the subject of the final judicial outcome of such a question, I submit that we cannot here decide with certainty what the Supreme Court might finally rule. It is even more certain that we on the floor of the Senate cannot eliminate the possibility that the Court might someday of necessity have to rule upon the question. And it is entirely conceivable that while the courts are in the process of making a final determination there might be two individuals each claiming the power of the Presidency.

Mr. ERVIN. Mr. President, will the Senator yield for a question at that point?

Mr. GORE . . I yield.

Mr. ERVIN. I ask the Senator from Tennessee if the proposed amendment would not make the question of whether or not the President is capable of performing the duties of his office a political question? In my view it would be a political question and for that reason the Court would not be called upon to pass upon it. In other words, the question posed by the Senator's interpretation would be the same question which would be raised by the interpretation of the Senator from Indiana; namely, Is the President incapable of performing the duties of his office?

The amendment provides that, if the President claims he is competent, the question shall be determined by the Congress. · Therefore, would not the amendment make it purely a politic · al question as distinguished from a judicial question, since under the terms of the amendment Congress would be the sole arbiter or determiner of the question?

Mr. GORE. I submit to my distinguished friend, the able senior Senator from North Carolina, that I do not find any provision in the amendment that Congress shall be the sole arbiter. I find that the amendment would vest in the Vice President, acting in concert with the majority of the Cabinet, authority to declare the disability of a President of the United States. If that language is not in the amendment, then I simply do not understand the English language.

Mr. ERVIN. Does not the Senator from Tennessee agree with the Senator from North Carolina that the resolution represents an attempt to establish a constitutional method of determining whether the President is disabled to perform the duties of his office?

Mr. GORE. I agree; but it provides two ways in which the determination could be made. That is the difficulty I have with it.

Mr. ERVIN. What is the harm in providing alternatives in making the determination? Would that not improve the amendment? It would make it more flexible. If the Senator from Tennessee is correct in his interpretation-and he is making a very fine argument-that the Vice President, either acting with the majority of the Cabinet or acting with the majority of an alternative body established by Congress, could declare a President to be disabled, would that not be an advantage? I feel that it would, in that it provides some flexibility instead of only one inflexible procedure.

Mr. GORE. The Senator in charge of the bill has said that that is not the correct interpretation. But to answer the Senator's question, I believe the existence of an alternate procedure would be harmful, and could be the cause of much mischief. The Senator has asked me a question. I should like very much to cite an example in which the language might even prove to be disastrous.

Let us suppose that the Congress has acted to create by law some other body to act in such cases with the Vice President. Let us suppose further that the individuals making up that body, or a majority of them, felt that the President was fully capable of discharging the duties of his office. But suppose the Vice President held a different view. And suppose further that, for one reason or another, a majority of the Cabinet shared the view of the Vice President. In such a situation if the Vice President and a majority of the Cabinet transmitted the necessary declaration to the Congress, who, then, exercises Presidential power? Will there be time for the courts to make a determination of competing claims without disaster? We all hope devoutly that such a situation never arises. But, in my opinion, it could arise, under the language contained in section 4 and under the hypothesis on which the Senator has based his question.

Mr. ERVIN. Does not the Senator from Tennessee contemplate the possibility that the members of the Cabinet might have such an overpowering sense of loyalty to the President that they would be unwilling to take such action? In such a case, in my view, it would be desirable to have an alternative body that could take the action rather than run the risk of having as President of the United States a person who conceivably might be a victim of insanity.

Mr. GORE. If the answer to the Senator's question is "Yes," then clearly and beyond question only one group should be empowered to act at one time.

Let me go further. I am not at all sure that it would be wise to set up an alternative procedure. Our basic objective should be to provide a procedure certain for the declaration of the disability of the President. I should like to recall to Senators that there is now one procedure under the Constitution for the removal of a President from office, namely, impeachment. It is now proposed to provide a second means by which a President could be removed and separated from the power of that office, the most powerful office in the world. If we are to take this step-and I would like to take such a step-we should do so with clear understanding and with certain procedure, not procedure which could invite a court contest at a critical hour in our Republic.

Mr. ERVIN. That is where the Senator from North Carolina reaches a point of disagreement with the Senator from . Tennessee. I do not understand how there would be a court contest, because the amendment provides that the Vice President acting with either the Cabinet or another body established by Congress would raise the question. They would make a temporary decision, and that temporary decision would be immediately transmitted to the Congress for its decision.

Mr. GORE. Where in the proposed amendment is there a provision for a temporary decision?

Mr. ERVIN. The proposed Constitutional amendment provides that the Vice President could not take over the office of President unless he had given immediate notice to the President pro tempore of the Senate and the Speaker of the House. It also provides if Congress is not already in session, it must be called immediately into session and must make a decision on the issue within 21 days; Congress would decide the question before it would ever reach the courts.

Mr. GORE. Mr. President, I would like to debate further. I am advised that I have about exhausted my time. Will the Senator from North Carolina ask consent that the time used in our colloquy thus far be equally divided or charged to his side?

Mr. ERVIN. Mr. President, I ask unanimous consent that I may have 2 minutes of my own time in which to thank the Senator for yielding, and to say if the interpretation of the senior Senator from Tennessee is correct, that it would improve, instead of hurt, the amendment by making it more flexible.

Mr. GORE. Mr. President, an anomalous situation has just been revealed. The distinguished senior Senator from North Carolina, formerly a justice of the Supreme Court of North Carolina, has agreed with my interpretation and has said that the language improves the amendment. The distinguished Senator from Indiana disagrees with my interpretation.

I submit that when there is a disagreement as to interpretation between two of the authors of an amendment, this is the time to restudy, to redefine, and to clarify, before we submit the constitutional amendment to the States for their ratification or rejection. We are about to write into the Constitution of the United States an amendment that could be the most important amendment ever written.

Mr. ERVIN. Mr. President, I ask unanimous consent for 1 minute.

Mr. GORE. Mr. President, I do not now yield to the Senator.

Mr. ERVIN. I have merely assumed the Senator's interpretation to be correct.

The PRESIDING OFFICER. The Senator from Tennessee declines to yield.

Mr. GORE. I have only 4 minutes remaining.

In a situation involving the passing of the power of the Presidency from the hands of one individual to another it is equally important that the law be certain as that it be just or wise. Admittedly, we cannot anticipate and guard against every conceivable contingency. But in this case, we now have an opportunity to eliminate uncertainty, and to provide with certainty exactly who shall make the determination-not a temporary decision, but a determination of the disability of the President of the United States; and upon such a determination the power of the Presidency would pass to the hands of the Vice President, who could then fire the Cabinet, or part of it, and then make another declaration within 4 days of a contrary declaration by the President.

If we adopt the conference report in its present form, the matter will pass from the hands of Congress, and there will be no opportunity to change the language. There can be no language changes during the ratification process. I am also concerned about remarks made by the junior Senator from Indiana during the debate last Wednesday which left me, at least, in doubt about the time at which it is intended by the authors of the amendment that the Congress would act to create "such other body."' I had rather supposed that it was intended that the Congress would, reasonably promptly after ratification of the proposed amendment, proceed to consider this matter at a time when there was no question whatever that the then President was fully able to discharge his duties. But there is no guarantee that Congress would in fact act at a time when this question could be given dispassionate consideration. I think it should. If the amendment is adopted, it seems to me that Congress should proceed forthwith to write a law in this regard, creating such a body. However, some of the remarks of the Senator from Indiana seemed to reflect a view that Congress might well not act until a question had been raised about disability on the part of the President. Is it the view of the authors of the amendment that Congress should not act until a situation arose--such as described by the senior Senator from North Carolina [Mr. ERVIN]-in which the prevailing view of Members of Congress was that the President was in fact disabled but a majority of the Cabinet was disinclined to so declare?

If that is the assumption, let us look at the other side of the coin. Suppose that instead of a Cabinet being reluctant, the body created by Congress is reluctant. Then there would be the possibility of one or the other acting, not as anticipated by the authors of the amendment, but in contrast therewith. Could Congress act wisely under such circumstances? It might not be able to act at all, if we waited until such time as Congress believed the President was disabled and thought the Cabinet was reluctant to act.

If a President should be resisting a determination of disability he might veto any bill passed, thus requiring a vote of two-thirds of both Houses of Congress to override the veto. Again, we all hope that there will never be an occasion for Presidential disability to be declared, either by the President himself or by anyone else. But if the need ever arises for such action other than by voluntary act of the President, it would likely have to be done in circumstances in which the President would not concur. If the approach followed in the proposed amendment is to be followed, I would hope that any action taken by Congress would be taken at a time and under circumstances free of constitutional crisis.

Moreover, Mr. President, I feel strongly that if Congress by law provides for some "other body" to act jointly with the Vice President in making a declaration of Presidential disability, it ought to be clear beyond all doubt that only that "body" may participate with the Vice President in making such a declaration. I do not believe it improves the a amendment to provide that two bodies may act. If either of two groups possess such authority the possibility of confusion and conflicting claims is much magnified.

As I have stated, it is my opinion that the language now before the Senate would authorize either of two groups to join with the Vice President in declaring Presidential disability. · At the very least there is doubt about the matter. And a doubt or a question is all that it takes to require a Supreme Court decision, with the possibility of constitutional chaos during the period of judiCial proceedings. Mr. President, we need not take that risk. The proposed amendment is still before Congress.

If two-thirds of the Senate vote "yea," the amendment will no longer be before the Senate. There will no longer be any opportunity to clarify or define the language. It should not be overly difficult to devise language to clarify this one question-and it is an important one.

Unfortunately, under the existing parliamentary situation, there is no way in which language revision can be considered other than by rejection of the conference report. Once this step has been taken, a further conference with the House can be requested-that is what I propose-and the conferees would then have an opportunity to present language free of uncertainty. We should establish a procedure with certainty for the caust. declaration of the disability of the President of the United States. I say that this uncertainty, instead of improving the amendment, condemns it to uncertainty and unwisdom.

Should the conference report, with its present language , be approved, doubt and uncertainty w ill , upon ratification, become embedded in the Constitution. For the reason I ha v e stated, I urge Senators to vote to reject the conference report and give to the conferees an opportunity to bring to us an amendment having precise, clear meaning.

Mr. President, I reserve the remainder of my time.

Mr. BAYH. Mr. President, I yield 10 minutes to the distinguished Senator from North Carolina.

Mr. ERVIN. Mr. President, the able and distinguished junior Senator from Indiana [Mr. BAYH] interprets the joint resolution to provide that 1f Congress does not create a substitute body as authorized by the amendment, then the Vice President, acting with the consent of the majority of the Cabinet, can declare the disability of the President, subject to congressional reversal. The Senator from Indiana also interprets the proposed amendment to mean that if Congress does create a substitute body to act, such substitute body supplants the Cabinet, and the Vice President, acting with the majority of such substitute body, can initially declare the disability of the President. The able and distinguished senior Senator from Tennessee says, on the contrary, that the Vice President may elect to use either the Cabinet or the body. I do not know what ultimate decision or construction will be placed on the amendment, but I say that good argument can be made for either interpretation. However, I shall support the joint resolution.

The Senator from Indiana, the Senator from Tennessee, and I could have drawn a better resolution if we had had uncontrolled authority to do so. I have worked on this problem. If I were allowed to draft a resolution by myself, I think I could draw · a be , better one. As a matter of fact, I drew what I believe to be a better one.

I did not believe the Vice President should be involved in the matter. My resolution put the matter in the hands of Congress alone. However, the measure before us reflects an amalgamation of views. As such, it represents a consensus which may not satisfy any of its proponents entirely. It may not be perfect. Indeed, in my view it is not perfect but I feel that it is the best resolution that is attainable.

I had to withdraw many of my opinions in order to obtain a resolution that would be approved by the Committee on the Judiciary and the conference committee. I am not at all disturbed by the interpretation which my good friend, the Senator from Tennessee, places on the document. If it is a correct interpretation it would make the resolution better. This is a dangerous period in which we live, a period in which the President of the United States has his finger on the button that can start an atomic holoMany provisions of law provide alternative means . For example, in virtually every State of the Union, a prosecution for a felony can be started either by an individual in the court of a justice of the peace or by the indictment of a grand jury. However, before anybody can be convicted of a felony, he must be convicted by the same type of petit jury in a trial on the merits.

It is quite possible that in the future we may have a President who would be suffering from a mental disease, and the members of the Cabinet, appointed by the President, would be so loyal to him that they would be blind, to some extent, to his weaknesses and would not be amenable to declaring him disabled.

It would be well in a case such as that to have a body set up by Congress with the power to act. I believe that the interpretation given by the Senator from Tennessee, instead of inJuring the r e solution, would make it better. After all, the Vice President could not take over the office without the approval of a majority of either the Cabinet or the body established by Con g ress. I presume that all of the members of either the Cabinet or the body set up by Congress would be patriotic . Americans. Even in that case, before the Vice President could take over, the Pres i dent pro tempore of the Senate and the Speaker of the House of Representatives would have to be notified. Congress would then have to assemble, if it were not already in session, within · 43 hours. Furthermore, it would have to make a decision within 21 days. If Congress did not make a decision adverse to the Preisdent by two-thirds vote in each House within 21 days, the executive powers would automatically return to the President.

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

Mr. ERVIN. I yield.

Mr. GORE. Mr. President, I apologize to the Senator for my reluctance to yield further during the colloquy in which we engaged.

Mr. ERVIN. I understand, The Senator was most generous.

Mr. GORE. Mr. President, let us suppose that the Vice President and a majority of either body provided for in the proposed amendment were to transfer to the President pro tempore of the Senate and the Speaker of the House a declaration of the disability the of President of the United States. Upon whom would the power of the Presidency then devolve?

Mr. ERVIN. The power would devolve upon the Vice President temporarily, until Congress could act, and then the decision would be made by Congress.

Mr. GORE. Mr. President, who would then have the power to appoint Cabinet members?

Mr. ERVIN. I do not believe that this amendment deals with that question. I believe that the Vice President could do so temporarily. However, I do not believe that Congress would confirm his appointees at a time when they were considering the question of whether he should be permitted to remain in the Office of President.

Mr. GORE. If the Vice President becomes Acting President?

Mr. ERVIN. That question was raised in committee. . ee. · The question was also raised concerning whether the amendment should provide for succession to the Presidency in the case of the death of the President and Vice President simultaneously or in a common disaster.

Mr. GORE _. The Acting President could dismiss his predecessor ' s Cabinet.