July 6, 1965

Mr. ERVIN. The Senator is correct.

Mr. GORE. Then he could appoint members of the Cabinet of his own choosing, subject to confirmation.

Mr. ERVIN. Yes. But Congress could vacate such action by decision favorable to the President.

Mr. GORE. Suppose that under the proposed amendment, the President, over his signature, were to notify the President pro tempore that he is able to assume the duties of the office of President. Then suppose that the Acting President, in concert either with the Cabinet, or with the other body which Congress would create, were to send a second declaration to the Pres i dent pro tempore of the Senate declaring the disability of the President.

Mr. ERVIN . That could happen under either the construction placed on the amendment by the Senator from Indiana. or that made by the Senator from Tennessee. There would be no difference whatever in that situation, under either construction.

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

Mr. GORE. Mr. President, I should like to conclude this point first.

Mr. President, will the Senator yield further?

Mr. ERVIN. I yield first to the Senator from Tennessee and then to the Senator from Indiana.

Mr. GORE. If that be the case, if the answers which the distinguished and able senior Senator from North Carolina has provided be correct, then I say that it is all the more necessary to provide a procedure certain for the declaration of disability of the President. It illustrates clearly the unwisdom and the danger of creating a situation whereby there may be competing claims and groups as to the disability or ability of the President. We are dealing with a subject which might endanger the very procedures of our Republic.

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

Mr. ERVIN. Mr. President, will the Senator yield me an additional minute?

Mr. BAYH. I yield 1 more minute to the Senator from North Carolina.

The PRESIDING OFFICER. The Senator from North Carolina is recognized for 1 additional minute.

Mr. ERVIN. I should say that every legal and constitutional situation conjured up by the Senator from Tennessee would be possible under either interpretation. There would be absolutely no difference whatever.

Mr. BAYH. Mr. President, I yield 10 minutes to the Senator from Illinois.

The PRESIDING OFFICER. The junior Senator from Illinois is recognized for 10 minutes.

Mr. DIRKSEN. Mr. President, first Houses of Congress. of all, I should like to pay testimony to the distinguished Senator from Indiana for the long and painstaking labor that was involved in the preparation of the proposed amendment. He has been very patient. He has heard the testimony of many witnesses. He has been very patient in the conferences with the House. I pay testimony also to the distinguished jurist, the Senator from North Carolina, for the great service he has rendered. ·

I pay testimony likewise to the Senator from Nebraska [Mr. HRUSKA], good lawyer that he is, who has worked diligently on this matter, knowing its importance and knowing that sooner or later Congress would have to do something in this field.

I presume that the first thing we discover is that language is not absolute. The only word I can think of that is absolute is the word "zero." However, interpretations of all kinds can be placed upon language, and all the diversities of judicial decisions that are presumed since the beginning of the Republic, if placed in a pile, would reach up to the sky. Consequently, in dealing with the language before us, we have the same problem that we had in the subcommittee and in the conference.

Fashioning language to do what we have in mind, particularly when we are subject to the requirement of compression for constitutional amendment purposes, is certainly not an easy undertaking. However, I believe that a reading of the resolution will speak for itself.

Bruce Barton, a great advertising man who served one term in the House of Representatives and wrote that fascinating book, "The Book Nobody Knows," meaning the Bible, once observed to me that there was a penchant to read all the commentaries, but not to read the book itself; I am afraid that too often we fail to read into the RECORD exactly what is present. ·

They have a better custom in the House of Representatives, because when a bill goes to final reading in the Committee of the Whole, it is read a paragraph or section at a time. In the case of legislative measures, they are always read by section. In the case of appropriation bills, they are read by paragraph.

Perhaps it would be rather diverting if we started with section No. 1 of the amendment, which reads:

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

When Lincoln died, there was a quick transition of the Presidency into the hands of Andrew Johnson, and it offered no problem. To my knowledge, there has not been a resignation from the Presidency, and there has been no removal. Only once was an effort made to impeach a President and remove him from office. So this article of the section stands by itself and speaks for itself.

Section 2 provides:

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 When Franklin Roosevelt died, Truman acceded to the Presidency, and there was no Vice President. We then set up a line of succession, and I was in the House of Representatives when it was done. I do not know that our labor was a happy one, because it was beset with some prejudice and some bias. This question should have been taken care of long ago. The question is taken care of through amendment to the Constitution. Who better to nominate the Vice President than the President himself? He is the party responsible. There is the sense of affinity, the capacity of working with somebody. The President should be able to select his working partner. That selection would be confirmed by majority votes of both Houses of Congress. That is about as good as English language can state it. I doubt if we can set it out more clearly.

Section 3 states:

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

There is the President, on his own volition and by his own motion, advising the Congress he can no longer discharge his duties. What more natural than that the Vice President should take over, not as President, but as Acting President, because there is always the chance of recovery? It took a long time in the case of Woodrow Wilson. It required . only 90 days in the case of President Garfield when he passed away. But under this proposal the duties go to the Vice President as Acting President. That appears to be the logical way, in the absence of any contrary declaration made by Congress.

Then let us go to 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.

One can make a hundred different assumptions under that language. The President might dismiss the Cabinet. But the President did not create the Cabinet. He appointed those who filled the positions. · But it is the Congress that created the Cabinet, and Congress can always create a Cabinet, if it so desires. This is still the disciplinary branch in the Federal Government. It was no wonder that President Monroe said, "The legislative branch is the core and center of our free Government." There are only a few things that we cannot do. We cannot dismiss the President: We cannot diminish the number on the Supreme Court. We cannot abolish the Supreme Court. But we can do just about everything else. We can reduce their number if we so desire, and, of course, we can abolish every Cabinet post. There is nothing to stop the Congress from doing it.

In the light of that power, I doubt whether we need to be disturbed by the ghosts that have been created in connection with the question, largely on the basis of first one assumption and then another.

So the Vice President becomes the Acting President, and as such he continues until the . disability is removed.

That section goes further.

Thereafter, when the President transmits to the President pro tempore 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 and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within 4 days 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.

One would have to assume a venal Vice President; he would have to assume either a venal or very timid Cabinet, that would not carry out their duties. If they failed so to act, because of an overriding fidelity to the Chief Executive who placed them where they were, that might be a circumstance to be taken into account. But I cannot imagine a member of the Cabinet so wanting in fidelity to the Republic, rather than to the man who placed him in his position, that he would not undertake to . discharge his duty. But if the Congress felt, for any reason, that that was not going to be done, we have made provision in this language for some other body, and the Congress can create that · body. It can consist of civilians, including people representing every walk of life, a goodly component of doctors, and those who have the capacity to pass upon the question of whether the inability still exists or whether the inability has passed.

I cannot imagine intelligent, competent, and patriotic Americans serving as the principal officers in the executive branch, or in any other body which Congress might create, that would not deal in forthright fashion with the power that is there, to determine whether the disability had been removed and whether the elected Chief Executive was capable or not capable of carrying on his duties and responsibilities.

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

Mr. DffiKSEN. I am glad to yield to the Senator from Tennessee.

Mr. GORE. I appreciate the careful and tightly reasoned statement that the able Senator from Illinois is making. Most of us, perhaps, think of the disability of the President in the light of the tragic events of November 1963. I submit that a physical impairment of the President may not be the only condition against which we must most zealously guard. Disability may be phychiatric. It may be mental. It may be a sort on which people would honestly have differing opinions. A President might be physically fit-the picture of health; but to those who work closely with him, there might be a conviction that he had lost his mental balance, that he had psychiatric problems. In such an event, the country could be rent asunder by political passions. The able Senator has referred to the fact that the Acting President would assume the powers of the office of President. I asked the Senator from North Carolina if the Acting President could not dismiss the Cabinet of the previous President and the answer was yes, that of course he could, that he could also dismiss a few, or he could dismiss a part of them, or he could retain the few who agreed with him.

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

Mr. BAYH. Mr. President, I yield 5 additional minutes to the Senator from Illinois.

The PRESIDING OFFICER. The Senator from Illinois is recognized for 5 additional minutes.

Mr. GORE. In that event, it might be crucial, and I believe necessary, that if the man who is to succeed to the office of Acting President is to initiate a declaration-and I believe the Senator will agree that neither the Cabinet nor the other body referred to in the proposed amendment could declare the disability of a President with any effect unless the Vice President concurred in it-if the Vice President, the man to succeed to the power of the office, with the power to select his own Cabinet, or to dismiss all or a part of the Cabinet of the President problem, is to participate in the declaration, the a practical body which must act in concert with him to do. should be certain and beyond doubt. I believe it is most unwise and dangerous Senator to have two groups which might be competing in such a disastrous situation.

Mr. DffiKSEN. I doubt the sub- there may stance of my friend's premise. I should venal or not like to be around to enjoy the furor there may if ever the Vice President undertook, for and venal purposes, or motivations · of his on which own, to pursue that kind of course.

Mr. BAYH. Mr. President, will the within Senator from Illinois yield?

Mr. DIRKSEN. I cannot imagine it, is declared. because, after all, the people of this comes country will have something to say about certainty, that. Where would it lead? They would body he not exactly run him out on a rail, but his whole political future, such as it might time of be, would come to an end at that point. pired.

Let us always remember that we are Mr. BAYH. dealing with human beings and human more motivations, and also with the sense of nois, but fidelity and affection that people bear, tend to one for another, when they are thrown which into a common labor, such as that of a raises. President and Vice President, and the I believe principal executive officers under those plus the circumstances.

Mr. BAYH. Mr. President, will the questions. Senator from Illinois yield?

Mr. DffiKSEN. I Yield.

Mr. BAYH. I thought it might be do my very best. helpful to · ask the Senator from Illinois The if he recalls the discussion in commit- · t- Senator tee on this point. The committee real- additional ized that this danger lurked on the hori- Mr. zon, but that there was an equally severe from danger that we might face a long period ment, but of Presidential disability in which a Senators Cabinet officer might resign, or die. Un- has created less the Vice President were given this could power, he would be precluded from re- President, placing a member whom he needed to The help fill the Cabinet. I believe that the it could Senator from Illinois has hit the nail on the head when he advances the belief when that in a time of national crisis, the another American people would not tolerate an power in act on the part of the Vice President that concert was not in the best interests of the coun- then be

Mr. DIRKSEN. There are some fun- can, by damentals we must remember in dealing the Cabinet with a matter of this kind. The first is stitution that we do not strive for the eternal. Mr I doubt that the English language could · D accomplish that, because that would be inet member absolute. Second, we know that there the will always be change, but in the change, which the Constitution in its interpretation it- Therefore, self indicates that we would take it in which we our stride.

There was once a professor at Johns Senator Hopkins University who had fashioned a some thesis and a postulate that he though like to would stand up under every circumstance. Then he sat down with his fellow them but faculty members to discuss it. When the ask these discussion was ended, his thesis and postulate were torn apart with suppositions posed and other arguments to the point that he O.RD, so gave out a frantic cry, "In God's name, copies is there nothing eternal?"

One of his fellow professors answered, be available, “Yes, one thing, and that is change."

Always there will be change. We have and on not done · an absolute job of solving this served on but I believe that we have done job. That is what we sought Mr. GORE. Mr. President, will the from illinois yield?

Mr. DIRKSEN. I yield. Mr. GORE. Instead of assuming be a Vice President who is diabolical, let us assume that be . one who is perfectly honest sincere concerning circumstances there is a sharp division of opinion both within the Cabinet and Congress, but despite that disagreement, the disability of the President

The Vice President then be­

Acting President. There is no in this amendment, as to which must act in concert with.

The PRESIDING OFFICER. The the Senator from Illinois has ex­

Mr. President, I yield 2 minutes to the Senator from Till­

I would like to say that I inspeak specifically to the point the Senator from Tennessee In my opinion there is no doubt.

that we have sufficient evidence, intentions as reflected in the

· conference committee, to remove all Whether I shall be successful, so far as the Senator from Tennessee is concerned, I do not know, but I shall

PRESIDING OFFICER. The from Illinois is recognized for 2 minutes.

GORE. I am sure the Senator Indiana will present an able arguthere is disagreement among as to whether, after Congress another body, the Cabinet declare, in concert with the Vice the disability of the President.

Senator from Indiana asserts that not do so.

The senator from Indiana says that congress acts to create by law body, the provision which vests the majority of the Cabinet, in with the Vice President, would superseded. I ask the senator, as a lawyer, if he believes that Congress statute, supersede and strip from the power vested by the Conin a majority of that Cabinet?

mKSE c b · N. Congress, I believe, can take away any power that any Cabhas. There is not a line in

Constitution of the United States provides for a Cabinet as such.

they are endowed with powers give to them . .

Mr. BAYH. Let me suggest to the from Tennessee, who has posed perplexing questions, that I should have an opportunity to answer would appreciate it if he would questions on his own time.

I merely wish to have all of the proamendment appear in the REcthat when the 90,000 or 100,000 are sent to the libraries and schools and colleges, the entire text will and also that the names of the managers on the part of the House the part of the Senate, who the conference committee, will be shown. That will complete the RECORD.

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

ARTICLE -

SECTION 1. In case of the removal of the President from office or of his death or resignation, the Vice President shall become President .

SEC. 2 . 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 .

SEC . 3 . Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the V i ce President as Acting President.

SEC . 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 .

There a fter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representat i ves his written declaration that no inability exists , he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days 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 . Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration , or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise , the President shall resume the powers and duties of his office .

And the House agree to the same.

EMANUEL CELLER,

BYRON G. ROGERS,

JAMES C. CORMAN,

WILLIAM M. McCULLOCH,

RICHARD H. PoFF ,

Managers on the Part of the House .

BIRCH E. BAYH, Jr., JAMES 0. EASTLAND, SAM J . ERVIN, Jr.

EVERETT M. DIRKSEN,

ROMAN L. HRUSKA,

Managers on the Part of the Senate.

Mr. DffiKSEN. Mr. President, I believe we have done a reasonably worthwhile job insofar as the feeble attributes of the language can accomplish it. I compliment and congratulate the distinguished Senator from Indiana, the chairman of the subcommittee, on the good job he has done. ·

Mr. BAYH. Mr. President, I thank the Senator from Illinois and other Senators who have labored tirelessly to help us get this far down the road.

I yield myself such time as I may require to discuss the points which have been raised by Senators. I have no prepared speech. I have made some notes on one or two points that I wish to discuss. I shall speak with as much ability as I possess and try to clarify the question of intent in the consideration of this subject. However, I emphasize that the Senator from Tennessee and I share one intention, among others, and that is that we seek to clarify any ambiguity which may exist.

Reference has been made to the position of the Attorney General of the United States which was previously inserted in the REcORD and verified his position supporting Senate Joint Resolution 1.

Mr . President, I also quote one sentence from his testimony before the subcommittee . He said:

I _ want to reaffirm my prior position that the only satisfactory method of settling the problem of Presidential inability is by constitutional amendment , as Senate Joint Resolution 1 proposes.

In this position, he was joined by a rather long list of Attorneys General of the United States, going back to Biddle and Brownell. He was also joined by such constitutional experts as Paul Freund. They felt that if there was any doubt, the Congress should propose an amendment to the Constitution.

The question has been raised as to why we have put the Vice President in the position of acting in the capacity he would have under the amendment. I believe that former President Eisenhower dramatically made this point in the presentation he made before the conference of the American Bar Association called by the President last June. President Eisenhower said he felt it was the responsibility of the Vice President to assume the authority of the Presidential office in the event that the President was unable to perform his duties, and that the Vice President could not escape that authority and obligation.

Therefore, I believe that we have done the right thing in placing the Vice PreSident in the position of participating in that determination.

There has been a great deal of discussion about the last section, the most controversial section, of the proposed amendment. I point out, based upon my judgment, that this most controversial part of the amendment rarely if ever would be brought into play.

As the Senator · from [Illinois [Mr. DIRKSEN] has pointed out, the amendment provides for the voluntary declaration of disability by the President. Let us assume, for example, that he is undergoing a serious operation, and that he does not want to take the chance of having the enemy take advantage of the situation.

The amendment also deals with the kind of crisis which President Eisenhower described, such as a President suffering from a heart attack. For example, at the time he might be in an oxygen tent the Russians might begin to move missiles into Cuba. At that moment no person in the United States would have any power to make any decision that had to be made.

The amendment would take care of these points.

Now we get to the point to which the Senator from Tennessee has correctly alluded; namely, the question of a President who, although physically able, is not the man, from a substantive point, who was previously elected to that office. Thus arises the difficult problem of mental disability.

The Senator from Tennessee bases his argument on the fact that changes were made in the conference committee. I point out that in referring to the "either I or" change, the Senator from Tennessee overlooks the fact that several other changes were made in conference. I would not want to mislead anyone into believing that that was the only change that was made. Several others were made, in connection with which we tried to compromise with our friends in the House.

I believe that we have a better amendment now, in most respects, than when it left the Senate. I would have preferred the language which the Senator from Tennessee has suggested. This was not the case. The amendment is the product of our conference. I hope we can at least shed some light on our belief as to the validity of our contention that there is no ambiguity here.

With respect to "either /or", it is clear to me-and I invite the attention of Senators to the definition of this phrase in Black's Legal Dictionary and to most legal cases on the point--that when we talk about "either/or" it is interpreted in the disjunctive. It does not refer to two, but to either one or the other.

Reference was made-not by the Senator from Tennessee, but by another Senator-to the fact that the Vice President could in effect at one time go to either one of these bodies and use them simultaneously. I do not see how it is possible to do that.

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

Mr. BAYH. . I should like to finish my argument. Then I shall be happy to yield. We have some evidence about what the courts have indicated in this respect. Certainly it is the intention of the conference committee and it is my contention, as the floor manager of the joint resolution and as the principal sponsor of it--and I believe I can also say that it is the opinion of a majority of the Judiciary Committee-that Congress should have some flexibility, and that we do not wish to nail down a plan which may not work. It is our intention for the plan, as it is enacted, to have the Vice President and a majority of the Cabinet make the decision, unless Congress, in its wisdom, at some later time, determines by statute to establish some other body to act with the Vice President. It would be rather ridiculous to give that power to Congress and provide at the same time that it may not exercise it within a certain number of years, or could not exercise it at all. We give to Congress, in its wisdom, the power to make the determination as to when another body should act in concert with the Vice President. It is our intention that at that time this other body shall supersede the Cabinet.

Mr. LAUSCHE. Mr. President, will +,he Senator yield for a brief question?

Mr. BAYH. I should like to yield for only a brief question.

Mr. LAUSCHE. Yes. Was there any discussion among the conferees about putting it in the conjunctive, instead of the disjunctive, having both a majority of the members of the Cabinet and a majority of the members of the body created by Congress act?

Mr. BAYH. This was never considered.

Mr. LAUSCHE. It was never considered?

Mr. BAYH. It was never considered. Since the Senator from Tennessee raised the question I have tried my best to look for cases which might soothe his concern about the ambiguity which he believes exists and which I believe does not exist.

Mr. President, I have uncovered three or four cases dealing with article V of the Constitution. They are Hawke v. Smith, 253 U.S. 221; Dillon v. Gloss, 256 U.S. 368; the National Prohibition cases, 253 U.S. 350; and United States v. Sprague, 282 U.S. 716.

As the Senate knows, article V deals with the means to amend the Constitution itself. Congress is given the authority to use either the means of legislative ratification or State convention ratification. Either one or the other may be used. In dealing with the fifth article, the courts have held in those cases to which I have referred-which are as close to being on the point as any I have been able to find-that Congress has full and plenary power to decide which method should be used, and once the choice is made, the other method is precluded.

These cases substantiate our feelingat least our intention-as to what we desire to ac · accomplish in the wording which has been placed in the conference report. I should like to go one step further. In the debate I do not wish to concede ambiguity. But out of friendship for the Senator from Tennessee [Mr. GoRE], I should like to suppose, for only a moment, that there might be ambiguity in the use of the words "either;or." What then would be the result? In the event of ambiguity there is no question that the Court would then look to the legislative intent. As a result of the insight and the perseverance of the Senator from Tennessee, we have now written a record of legislative intent, as long as our arms, to the effect that we desire only one body to act on the subject. In the event that an ambiguity is construed, I suggest that there is one last safeguard. I am certain that Congress, under the enabling provision which would permit another body to act with the Vice President, would in its wisdom at that time specify that, pursuant to section 4 of the 25th amendment to the Constitution, the other body is designated to supplant and replace the Cabinet and act in concert with the Vice President. So I am not concerned that there might be a vexatious ambiguity present.

I should like to speak on one other point which the Senator from Tennessee raised, and which I believe is a very good point.

Mr. LONG of Louisiana. Mr. President, will the Senator yield at that point?

Mr. BAYH. I yield.

Mr. LONG of Louisiana. It seems to this Senator that in a dangerous time when the inability of the President might be in question, particularly with respect to his mental capacity, Congress should act on the question. As I understand, no matter which body might make the declaration that the President was not able to serve, the question would then be before the Congress and it would have to be decided by a two-thirds vote; otherwise, the man who had been elected to the office of President would continue to serve as President.

Mr. BAYH. The Senator from Louisiana is correct. To remove, for any reason or on any ground, a man who has been elected to the most powerful office in the world, the office of President of the United States, is not an action to be taken lightly. As the Senator has pointed out, and as Senators will observe in other places in the amendment, we have leaned over backward in our effort to protect the President in his office. The decision would have to be made by Congress. A two- thirds vote would be required. That is a greater safeguard than is presently available under the provision for impeachment proceedings. Under that provision a vote of two-thirds of the Senate is needed; under the proposed amendment a vote of two-thirds of both Houses would be required.

There is no need to extend the debate, but I should like to speak to the question which the Senator from Tennessee raised. The Senator said that if there is any doubt, let us wait. We cannot be certain what the Supreme Court of the United States will do. I doubt very much that there have been many pieces of proposed legislation, certainly none related to constitutional amendments, that have passed this body in which there has not been considerable and heated debate as to whether some of the proposed language was right or wrong. Today I am certain that there are some Senators who would say that we cannot tell what the Supreme Court will do tomorrow with a constitutional amendment that is already on our books. The opinions of the Court change with time. I think we have to determine one question: Is the conference report the best piece of proposed legislation we can get and is it needed? As loudly as I can, I say that we must answer the question in the affirmative.

Some Senators might say, "What is the rush? We are not ready to adjourn yet. We can send the measure back to the conference committee and have I reworked."

To those who are students of history I do not have to document again and again the fact that we have labored for 187 years as a country and we have not yet been able to get sufficient support for any type of proposed legislation in this area. In 38 of those years we had no Vice President. We have had three serious presidential disabilities. Wilson was disabled for 16 months. Garfield was disabled for 80 days, and during that period there was no Executive running the country. Can Senators imagine what would happen to the United States and the world today if the United States were without a President? For all intents and purposes, we would be involved in world chaos from which we could not recover.

For more than 18 months the Senate has studied the proposed legislation. Two sets of hearings have been held. I appreciate the support that Senators have given us in this effort.

In the last session of Congress, the Senate passed the proposed legislation by a vote of 65 to 0; in the present session · of the Congress, the Senate passed the measure by a vote of 72 to 0.

This measure is not something which we have arrived at on the spur of the moment. We have had controversy and differences of opinion over individual words. I should like to remind Senators that during the past few _ years we have received over 100 different proposals. Since I have been chairman of the Subcommittee on Constitutional Amendments, during the past few months 26 different proposals have been submitted. I point out that if those who had the foresight to introduce proposed legislation on the subject-the Senator from North Carolina [Mr. ERVIN], the Senator from Illinois, the Senator from Kentucky [Mr. CooPER], Senator from Idaho [Mr. CHURCH], and others-had not been willing to agree and had not been willing to try to reach a consensus, and if .it had not been for the guiding hand of the American Bar Association to try to get those with differing views together, we would not be so far as we are now. I do not believe that we should let two words separate us.

Mr. LONG of Louisiana. Mr. President, will the Senator yield?

Mr. BAYH. I yield.

Mr. LONG of Louisiana. If I had had my way, there are two or three changes I can think of immediately that I should like to have made. I suggested some of them to both the leadership and also to the executive branch-for the measure vitally affects the executive branchwhen the subject was being considered previously. The adv i ce that I received at that time was, "Please don't muddy the water. The amendment has been needed since the establishment of our country. If we start all over again, not only will the junior Senator from Louisiana have two or three additional suggestions that he would like to urge, but other Senators will also have suggestions to make, and we shall be another 100 years getting to the point which we now have reached."

Mr. BAYH. I thank the Senator from Louisiana. He is exactly correct.

Mr. ERVIN. Mr. President, wi11 the Senator yield?

Mr. BAYH. I yield.

Mr. ERVIN. When we started to con- . sider the proposal, the Senator from Indiana and I had a discussion. We . were concerned with the · old adage that too many cooks would spoil the broth. We had more cooks with more zeal concerned with preparing this "broth" than any piece of proposed legislation I have ever seen in the time I have been in the Senate. If it had not been for the perseverance, the patience, and the willingness to compromise which was manifested on a multitude of occasions by the junior Senator from Indiana, we would never have gotten · the resolution out of the subcommittee, much less through the full Judiciary Committee and then through the conference with the House. I am of the opinion that the conference report which the Senator from Indiana is seeking to have approved would submit to the States the very best possible resolution on the subject obtainable in the Congress of the United States as it is now constituted. The Senator from Indiana deserves the thanks of the American people for the fact that he was willing to change the ingredients of the broth in order to appease a multitude of different cooks who had different recipes for it, including myself.

Mr. BAYH. I thank the Senator from North Carolina. I have said, and I say again, that we are greatly indebted to him for his "seasoning" and his willingness to compromise. Although there were many cooks, we had a paddle large enough so that we could all get our hands on it and stir. The conference report is the composite of the efforts of many different people.

I should like to conclude with one last thought. We know that over the great Archives Building downtown there is a statement engraved in stone. I do not know whether it is Indiana limestone, but standing out in bold letters is the statement: "What is past is prolog."

I cannot help but feel that history has been trying to tell us something.

There was a time in the . history of this great Nation when carrier pigeons were the fastest means of communication and the Army was rolling on horsedrawn caissons. Perhaps it did not make any difference then whether the Nation had a President who was not able at all times to fulfill all the duties and powers of his office. But today, with the awesome power at our disposal, when armies can be moved half way around the world in a matter of hours, and when it is possible actually to destroy civilization in a matter of minutes, it is high time that we listened to history and make absolutely certain that there will be a President of the United States at all times, a President who has complete control and will be able to perform all the powers time. and duties of his office.

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

Mr. BA YH. I yield.

Mr. JAVITS. The Senator has made an excellent argument and the right argument, concerning the effect the amendment will have in a situation of preparation for the use of executive utes. power.

Is it not true that, with the greatest respect for the opponents of what the Senator is trying to do, it is assumed that the people will do their duty by approving the amendment through their State legislatures, but that we will · not implement it in such a way as to indicate that we are not the approving power? It is one thing to say that some Vice President or President may misuse power. But we are passing the amendment. Is it not logical for us to count on ourselves to implement it effectively? We can resolve every doubt. We have complete power to resolve every doubt by legislation that will give exclusive power to the Cabinet or to the other body.

Mr. BAYH. I agree with the Senator from New York. The main authority behind the entire legislation-in fact, behind the enactment of any legislation-is the ability of men and women in Congress and in the executive branch to act with reason. If a time comes in the history of our Nation when Senators and Representatives and Presidents are despots, our entire democratic system will be in jeopardy. I, for one, am willing to place in my successors the faith that has been placed in us today. Can we doubt that future Senators and Representatives will fulfill the responsibility that inheres in the holding of high trust and office?

Mr. JAVITS. If Congress were to soldier on the people in any such way as some might fear, we could sit on our hands with respect to appropriations; we would not have to declare war; there would be plenty of ways in which to sabotage the United States.

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

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

The PRESIDING OFFICER. Who yields time?

Mr. GORE. I yield 1 minute to the Senator from Kentucky.

Mr. COOPER. I do not wish to haggle over the meaning of the amendment, but the Sen a tor from Tennessee asked one question which I think has not been answered.

We want to establish this body, because if we did not think it necessary and did not believe that at some point the Cabinet might not declare the President disabled, when he actually was disabled, there would not be any point in wishing to establish a second body.

The Senator from Tennessee asked the question: Assuming that Congress establishes this body, and Congress says it has exclusive jurisdiction--

The PRESIDING OFFICER. The time of the Senator from Kentucky has expired. Who yields time?

Mr. BAYH. I shall be glad to yield

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

Mr. GORE. I have only 3 minutes remaining. I wanted to close; however, I ask unanimous consent that the Senator from Kentucky have 5 minutes to discuss this question.

Mr. COOPER. I do not need 5 min­

Mr. GORE. I yield 1 minute of my remaining time to the Senator from Kentucky.

Mr. COOPER. The Senator from Tennessee made the point that since this is a constitutional amendment, Congress cannot take away the power given to the Cabinet by legislative enactment. He asks: If Congress should establish this body and give it exclusivity, would that have any force against the amendment itself, which provides that the power shall lie either in the Cabinet or in the body . itself?

Mr. JAVITS. It is my considered judgment-and I am the one who debated this point-that Congress, having the power to establish the body, can give it exclusivity which will stand up as a matter of constitutional law.

The PRESIDING OFFICER. The time yielded by the Senator from Tennessee to the Senator from Kentucky has expired. The Senator from Tennessee has 2 minutes remaining.

Mr. BAYH. We have made the record abundantly clear.

Mr. GORE. The distinguished Senator from Kentucky has just said that a question I raised has not been answered. The distinguished Senator from Ohio asked if this question was raised in conference. The answer was that it was not. It was not raised on the floor of either House.

Mr. BAYH. That was not the question.

Mr. GORE. The Senator from Ohio asked a question, about use of the disjunctive.

I say that the proposed amendment creates grave doubt. I should like to read from the record of the debate of last Wednesday, June 30:

Mr. GoRE. Do I correctly understand the able Senator to say that Congress coUld, immediately upon adoption of this constitutional amendment, provide by law for such a body as herein specified and that, then, either a majority of this body created by law or a majority of the Cabinet could perform this function?

Mr. BAYH. No. The Cabinet has the primary responsibility. If it is replaced by Congress with another body, the Cabinet loses the responsibility, and it rests solely in the other body.

Mr. GoRE. But the amendment does not so provide.

Mr. BAYH. Yes, it does. It states-­

Mr. GoRE. The word is "or."

Mr. BAYH. It says "or." It does not say "both." "Or such other body as Congress may by law prescribe."

I suggest, Mr. President, that we have time to correct this doubt. Let us return the report to conference; let it be clarified.

The PRESIDING OFFICER (Mr. HAR­

RIS in the · chair) . All time has expired. The question is on agreeing to the conference report. [Putting the question.]

Mr. GORE. The majority leader announced that there would be a yea-andnay vote.

Mr. BAYH. I ask for the yeas and nays. .

The yeas and nays were ordered.

Mr. ERVIN. Mr. President, a parliamentary inquiry.

The PRESIDING OFFICER. The Senator from North Carolina will state

Mr. ERVIN. What is the question before the Senate?

The PRESIDING OFFICER. The question is on agreeing to the conference report on Senate Joint Resolution 1.

Mr. DIRKSEN. Mr. President, a parliamentary inquiry.

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

Mr. DIRKSEN. Do I correctly understand that notwithstanding that the vote is on the conference report, a twothirds majority is required for its adoption?

The PRESIDING OFFICER. The Senator from Illinois is correct. 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. "yea." ANDERSON], the Senator from Nevada [Mr. BIBLE], the Senator from Nevada [Mr. CANNON], the Senator from Louisiana [Mr. ELLENDER], the Senator from Arkansas [Mr. FuLBRIGHT], the Senator from North Carolina [Mr. JORDAN], the Senator from Missouri [Mr. LoNG], the Senator from Washington [Mr. MAGNUSON], the Senator from Montana [Mr. MANSFmLD], the Senator from New Mexico [Mr. MoNTOYA], the Senator from Oregon [Mr. MoRSE], the Senator from West Virginia [Mr. RANDOLPH], and the Senator from Oregon [Mrs. NEUBERGER] are absent on official business.

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

I further announce that, if present and voting, the Senator from Nevada [Mr. BIBLE], the Senator from North Carolina [Mr. JoRDAN], the Senator from Oregon [Mr. MoRSE], and the Senator from West Virginia [Mr. · RANDOLPH] would each vote"yea."

On this vote, the Senator from Mississippi [Mr. EASTLAND] and the Senator from Nebraska [Mr. HRUSKA] are paired H1ll with the Senator from New Mexico [Mr. ANDERSON]. If present and voting, the Senator from Mississippi would vote "yea," the Senator from Nebraska would vote "yea," and the Senator from New Mexico would vote "nay."

On this vote, the Senator from Nevada [Mr. CANNON] and the Senator from Louisiana [Mr. ELLENDER] are paired with the Senator from Washington [Mr. Cannon MAGNUSON]. If present and voting, the Senator from Nevada would vote "yea," and the Senator from Louisiana would vote "yea," and the Senator from Washington would vote “nay.”

On this vote, the Senator from Indiana [Mr. HARTKE] and the Senator from Montana [Mr. MANsFmLD] are paired with the Senator from New Mexico [Mr. MoNTOYA]. If present and voting, the Senator from Indiana would vote "yea," the Senator from Montana would vote "yea," and the Senator from New Mexico would vote "nay."

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. FoNG], the Senator from Massachusetts [Mr. SALTONSTALL], and the Senator from Wyoming [Mr. SIMPSON] are necessarily absent.

If present and voting, the Senator from Vermont [Mr. AIKEN], the Senator from Utah [Mr. BENNETT], the Senator from Colorado [Mr. DoMINICK], the Senator from Hawaii [Mr. FoNG], the Senator from California [Mr. MURPHY], the Senator from Massachusetts [Mr. SALTONSTALL], and the Senator from Wyoming [Mr. SIMPSON] would each vote On this vote, the Senator from Nebraska [Mr. HRUSKA] and the Senator from Mississippi [Mr. EASTLAND] are paired with the Senator from · New Mexico [Mr. ANDERSON]. If present and voting, the Senator from Nebraska and the Senator from Mississippi would each vote "yea," and the Senator from New Mexico would vote “nay.”

The yeas and nays resulted-yeas 68, nays 5, as follows:

(No. 164 Leg.)

YEAS-68

Allott Holland Pearson Bass Inouye Pell Bayh Jackson Prouty Boggs Javits Proxmire Brewster Jordan, Idaho Ribicotr

Kennedy, Mass. Robertson

Byrd, W.Va. Kennedy, N.Y. Russell, S.C. Case Kuchel Russell, Ga. Church Long, La. Scott Clark McClellan Smathers Cooper McGee Smith Curtis McGovern Sparkman Dirksen Mcintyre Stennis Dodd McNamara Symington Douglas Metcalf Talmadge Ervin Miller Thurmond Fannin Monroney Tydings Gruening Morton Williams . N.J. Harris Moss Williams, Del. Hart Mundt Yarborough Hayden Muskie Young, N.Dak. Hickenlooper Nelson Young, Ohio

Pastore

NAY&-5

Gore McCarthy Tower La usc he Mondale

NOT VOTIN~27

Aiken Dominick Magnuson Anderson Eastland Mansfield Bartlett Ellender Montoya Bennett Fong Morse Bible Fulbright Murphy Byrd, Va. Hartke Neuberger

Hruska Randolph

Carlson Jordan, N . C. Saltonstall Cotton Long, Mo. Simpson

The PRESIDING OFFICER. On this vote, the yeas are 68, the nays 5. Twothirds of the Senators present and voting having voted in the affirmative, the conference report is agreed to.

Mr. BAYH. Mr. President, I move to reconsider the vote by which the conference report was agreed to.

Mr. KUCHEL. Mr. President, I move to lay that motion on the table.

The motion to lay on the table was agreed to.