June 30, 1965

Mr. BAYH. Mr. President, I submit a 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. I ask unanimous consent for the present consideration of the report.

· The PRESIDING OFFICER. The report will be read for the information of the Senate.

The legislative clerk read the report. (For conference report, see House proceedings of today.)

The PRESIDING OFFICER. Is there objection to the present consideration of the report? ·

There being no objection, the Senate proceeded to consider the report.

Mr. BAYH. Mr. President, we have before us for final passage Senate . Joint Resolution 1, which is a proposal to amend the Constitution to assure Presidential succession and authority in our Government.

The progress of the bill has ' been the result of the "labors of many persons, particularly the President of the United States, the leadership of this body, the leadership of the House of Representatives, the executives of the American Bar Association, and my colleagues on the Judiciary Committee, with particular emphasis upon those who labored on the Subcommittee on Constitutional Amend­

The measure was introduced by myself on behalf of myself and many other Senators. It has been slightly modified from the form in which it was introduced in December 1963. Since then it has been the subject of two sets of hearing before the Senate Subcommittee on Constitutional Amendments. It has been studied by the full Committees on the Judiciary of both the House and the Senate. It was twice passed in the Senate by unanimous yea and nay votes, and it was overwhelmingly approved by the other body.

Earlier this . year the proposed amendment received the full support of the President of the United States. Earlier it had been endorsed, as was brought out in some detail in the debate which ensued in this body, by such distinguished nongovernmental groups as the American Bar Association.

At long last the Senate and House conferees have completed their studies of the proposed amendment. A short while ago the conference report was approved by the House of Representatives. All that remains is for this body to approve the conference report, and then the measure will be sent to the States for ratification.

If the Senate acts affirmatively, it will be the 11th time in the past 90 years that Congress has submitted a proposed amendment to the Constitution to the several States. Of the last 10 that have been submitted, 9 have been ratified.

We have every reason to believe that the States will look with favor upon the proposed amendment, which is not designed really to alter the Constitution, but rather to fill a void in that great document which has existed for 178 years. As all of us know, the amendment is designed to do three specific · c things. I should like hastily to review the three purposes:

First, the proposed amendment would make forever clear that when the office of President becomes vacant, the Vice President shall become President, not merely Acting President. We would clearly state in the Constitution what has become precedent through the actions of Vice President Tyler following the death of the then President Harrison. Second, if the office of Vice President should become vacant, the proposed amendment would provide a means to fill that office so that we would at all times have a Vice President of the United States.

Third, the proposed amendment would provide a means by which the Vice President may assume the powers and duties of the Chief Executive when the President is unable to do so himself.

The conference report, which has now been approved by the House of Representatives, contains certain changes from the proposal which the Senate approved earlier thiS year by a vote of 72 to 0. I should like to describe those changes and then urge approval of the conference report by this body.

In the Senate version of the measure we prescribed that all declarations concerning the inability of the President or of his ability to perform the powers and duties of . that office, particularly a declaration concerning his readiness to resume the powers and duties of his office made by the President of the United States himself, be transmitted to the Speaker of the House and to the President of the Senate.

The conference committee report proposes that those declarations go to the Speaker and to the President pro tempore _ of the Senate. The reason for the change is, of course, that the Vice President, who is also the President of the Senate, would be participating in making a declaration of presidential inability, and therefore would be unable to transmit his own declaration to himself. In addition, I believe that we would be on better legal ground not to send the declaration to a party in interest. The Vice President, who would be shortly assuming or seeking to assume the powers and duties of the offi.ce, . would indeed be a party in interest.

In the Senate version of the bill we did not specify that if the President were to surrender his powers and duties voluntarily-and I emphasize the word "voluntarily"-he . could resume them immediately upon declaring that his inability no longer existed. We believe that our language clearly implied this. Certainly the intention was made clear in the debate on the question on the floor of the Senate and in the record of our committee hearings, but the Attorney General of the United States requested that we be more specific on this point so as to encourage a President to make a voluntary declaration to the effect that he was unable to perform the powers and duties of the offi.ce, if it was necessary for him to do so.

We made that point clear in the conference committee report.

We . added specific language enabling the President to resume his powers and duties immediately, with no waiting period, if he had given up his powers and duties by voluntary declaration.

That had been the intention of the Senate all along, as I recall the colloquy which took place on the floor of the Senate; and we had no objection to making that intention crystal clear in the wording of the proposed constitutional amendment itself.

In the Senate version we prescribed that the President, having been divested of his powers and duties by declaration of the Vice President and a majority of the Cabinet, or such other body as Congress by law may provide, could resume the powers and duties of the offi.ce of President upon his declaration that no inability existed, unless within , 7 days the Vice President and a majority of the Cabinet or the other body issued a declaration challenging the President's intention. The House version prescribed that the ' waiting period be 2 days. The conference compromised on 4 days, and I urge the Senate to accept that as a reasonable · compromise between the time limits imposed by the two bodies. not

Furthermore, we have clarified language, at the request of the Senate con- their ferees, to make crystal clear that the the Vice President must be a party to any lieve action declaring the President unable to perform his powers and duties. is

I remember well the words of Presi- The dent Eisenhower before the American In Bar Association conference, when he be said that it is a constitutional obligation of the Vice President to help make these decisions. We in the Senate felt that to had be the case, and thus changed the Ian- . might guage a bit to make it specifically clear.

That , I am sure, had been the inten- that tion of both the Senate and the House, but we felt that the language was not the specific enough, so we clarified it on that either point.

The Senate conferees accepted a House amendment requiring the Con- form gress to convene within 48 hours, if they obtain were not then in session, and if the Vice ity President and a majority of the Cabinet or the other body were to challenge the other President's declaration that he, the Chief Executive, were not disabled or, would once again, able to perform the powers dent. and duties of his office. •

We feel that the requirement would thirds encourage speedy disposition of the be question by the Congress, and I urge its . the acceptance by the Senate.

Finally, the Senate version imposed office. longtime limitations upon the Congress to settle a dispute as to whether the President or the Vice President could it perform the powers and duties of the ment office of President. Senators know the question would come to the Congress HRUSKA]. only if the Vice President, who would I then be acting as President, were to of challenge, in conjunction with a major- be ity of the Cabinet, the President's decla- from ration that no inability existed. The vice House version imposed a 1 0-day time limitation. The Senate conferees were tures. willing to have a time limitation as a further safeguard to the President, but the we were unanimous in agreeing that 10 days was too short a period in which to decide on that grave a question.

The conferees finally agreed to a 21- fine day time limitation after which if the ate Vice President had failed to ~in the early support of two-thirds of both the Houses 43 of Congress, the President would auto- of matically return to the powers arid duties of his office. I urge the Senate to accept that change.

I should like to specify one thing these further about this particular point since tion, I feel it is the main point of contention should between the House and the Senate, and one upon which I was happy to see we could find some agreement.

First, including a time limitation in the Constitution of the United States would impose upon those who come after us in this great body a limitation on their shown discussion and deliberation when sur- time, rounded by contingencies which we can- from not foresee. The · Senate conferees felt that a 10-day time limitation was too short a period. ·

Our feeling in the Senate, as represented by the views of the conferees, was that we should go slowly in imposing a then maximum time limitation if we could foresee the contingencies that might confront those who were forced to make determination as to who would be

President of the United States. I be­

21 days is a reasonable time. I emphasize that it is our feeling that this not necessarily an absolute period. 21 days need not always be used.

my estimation, most decisions would made in a shorter time. But if the Nation were involved in a war or other international crisis, and the President suffered an illness whose diagnosis be difficult, a longer time might be needed, and the maximum of 21 days was agreed upon might be required. It should be made clear that if during 21-day limit one House of Congress, the Senate or the House of Representatives, voted on the issue as to whether the President was unable to perhis powers and duties, but failed to the necessary two-thirds majority sustain the position of the Vice President and the Cabinet, or whatever body Congress in its wisdom might prescribe at some future date, the issue be decided in favor of the President. other words, if one House voted but failed to get the necessary twomajority, the other House would precluded from using the 21 days and

President would immediately reassume the powers and duties of his I feel that further remarks are unnecessary. I thank all who have made possible for us to bring the amendment this stage, especially the distinguished Senator from Nebraska [Mr. observe in the Chamber the father the last constitutional amendment to adopted, the distinguished Senator

Florida [Mr. HoLLAND], whose advice shall be seeking with respect to the method of approaching State legislatures. HOLLAND. Mr. President, will

Senator yield? Mr. BAYH. !yield. Mr. HOLLAND. I compliment the Senator from Indiana warmly on the service he has rendered to the Senate the Nation. I hope he will have success in obtaining action by the State legislatures whose ratification the amendment is necessary before it becomes a part of the Constitution. I believe he will receive that kind of action , because the Nation realizes that in perilous times this difficult queswhich has been pending for so long, have this method of solution available at all times, and as speedily as possible.

I wish I could help the Senator from Indiana in relation to his contacts with Governors and State legislatures. But judging by the fine ability that he has in consulting others up to this he certainly needs no suggestions me or from anyone else.

May I ask the distinguished Senator a question?

Mr. BA YH. Yes.

Mr. HOLLAND. Is it the Senator's intention to ask for a quorum call and to ask for the yeas and nays? ·

Mr. BAYH. That is not my intention. Inasmuch as the Senate has voted on much the same proposal by a substantial margin on two occasions; inasmuch as the House, when it concurred in the conference report, did not take a yea-andnay vote; and inasmuch as some Senators are not present at this time, I · believe it is really unnecessary to have a yea-and-nay vote.

Mr. HOLLAND. I shall defer, of course, to the views of the distinguished Senator, who is the principal author and cosponsor of the measure, and to the views of the majority leader and the acting minority leader, who are in the Chamber.

I believe it would be impressive-and this is the only comment I shall have to make-when action is taken by the States if more than one or two Senators had affirmatively espoused a particular version of an amendment which had reached State legislatures. But I shall gladly defer to the judgment of the Senator from Indiana and the majority leader and acting minority leader.

Mr. HRUSKA. Mr. President, I join the Senator from Indiana in urging the adoption of the conference report.

The proposed constitutional amendment is a correction of a long-exposed defect in the organization of our National Government. The amendment provides for a solution of the disastrous but inevitable situation that would confront the Nation in the event of a fallen leader of the Nation, either because of violence, illness, or disability. It has been a troublesome problem, one which has provided many uneasy moments to the people of the Nation from time to time during our history.

In the course of examining the problem, we have found that there is an infinity of contingencies which could be raised in any number of hypothetical situations. If we ever tried to provide for all of them or for any substantial number of them, it would require an infinite number of days or months, or perhaps years, to continue the debate on this subject. So we had to fill the vacuum by agreeing upon the joint resolution which is before us as the resolute action of this body and the other body and of the conference committee.

I believe the solution is sound. It would restrict the role of Congress considerably. Under the amendment Congress would act only as an appellate body in the event there were a difference of opinion between the President, on the one hand, as to his ability to return to his office, and the judgment of the Vice President and a majority of the Cabinet, or some other body that might be constituted by law ; which might have an opinion to the contrary.

Congress by itself would have no power to initiate a challenge of the President's ability or inability in this regard.

I wish to comment upon the role of the junior Senator from Indiana in the preparation of the joint resolution, not only with respect to sponsoring it, but also in so consistently pursuing the background and foundational material.

That material was gathered in conferences with, for example, representatives of the House of Delegates of the American Bar Association and with the house of delegates itself. That effort was followed by many discussions with professors and scholars learned in the law, in addition to the committee hearings themselves.

An effort was made to follow the established procedures of Congress in both bodies for the implementation of the amendment. That was not found to be possible with respect to the time limitation in section 3 which provides for the event of the issue of disability being joined between the President, on the one hand, and the Vice President and a majority of the Cabinet, on the other.

In deciding upon a period of 21 days, I believe we have provided a reasonable time in which the issue can be canvassed and acted upon intelligently.

A new duty has been placed upon Congress. It is a duty that lies upon men and women of good purpose in responding to the needs of their Nation in a time of crisis. It is my hope that the amendment will be consistently unneeded. Nevertheless, such tln agreement, as provided in this fashion, is wise, indeed.

So I join the Senator from Indiana in urging the Senate to adopt the conference report and to do whatever any of us can do toward urging the legislatures of the several States to ratify the amendment to our organic law, so that it may be duly promulgated and given force and effect.

Mr. BAYH. I thank the Senator from Nebraska for his thoughtful words, but more particularly for the dedicated effort, the long, tiresome hours of hearings and conference work, and the constant writing and rewriting that were necessary to reach the end of the tortuous journey we have been making.

Mr. KENNEDY of New York. Mr. President, I congratulate the junior Senator from Indiana [Mr. BAYH] on the outstanding job he has done in shepherding Senate Joint Resolution 1 from the realm of abstract proposal to its realization today. Along the way he consulted with a great number of people about this problem, and he heard a considerable variety of ideas on how it should be solved. It is to his credit that he was able, with patience and diplomacy, to resolve these differences.

I call to the Senate's attention a most important aspect of Senate Joint Resolution 1 which has not received as much notice as it should have. That is the provision, m section 4, which gives Congress authority to provide by law for a body other than the Cabinet to determine the inability of the President to exercise the powers and duties of his office when he is unwilling to make the declaration of inability himself.

This provision was wisely added by the framers of Senate Joint Resolution 1 because of the doubts which some people voiced as to the workability of using the Cabinet as the body to determine the President's inability. Now that we are finally enacting Senate Joint Resolution 1, we must not cease · thinking about this aspect of the inability problem. We must keep in mind that we have given Congress the power to provide a different body to determine Presidential inability, and we should engage in a continuing study of whether there is some better way to handle this very difficult matter. The need to engage in continuing reexamination of whether the Cabinet is the best a vail able body to determine Presidential inability is demonstrated by certain historical evidence which I call to the Senate's attention today.

I refer to the facts surrounding the resignation of Robert Lansing as President Wilson's Secretary of State. These facts were brought to my attention by Mr. Allen Dulles, who has served the Government for many years in many capacities . Secretary Lansing was his uncle, and Mr. Dulles has made available certain relevant correspondence and memorandums, which are now on deposit at Princeton University and are not yet available to the public.

Together with Secretary Lansing's correspondence with President Wilson at the time of the resignation-which is a matter of public record-these documents are interesting and revealing.

President Wilson fell ill during the latter months of 1919. Mr. Lansing, after consultation with other members of the Cabinet, decided that it was necessary for the Cabinet to meet and carry on the affairs of Government as best it · could. About 25 meetings had taken place, over a period of some 4 months, when Wilson wrote to Lansing, charged him with usurpation of Presidential powers because of the Cabinet meetings, and asked for his resignation. After an exchange of letters, Lansing did resign. · There were other reasons for friction between Lansing and Wilson. They were at odds over the negotiation of the Treaty of Versailles and subsequent congressional consideration of the treaty. Nevertheless, Wilson's inference that the Presidential Cabinet had usurped power demonstrates the wisdom of the framers of this amendment in leaving open to further consideration the question of who should decide when the President is disabled.

For the point of the Wilson incident is that, even though no procedure there existed for declaring a President to be disabled and even though there was no evidence of any overt attempt to usurp the powers of the President, the ailing President nevertheless decided to dispose of any Cabinet member who seemed to present a threat. More serious conflict might follow, in a comparable situation, now that a procedure for determining disability is established. Indeed, a President might fire his entire Cabinet. This is a matter concerning which I have had numerous conversations with the Senator from Indiana.

It is true that the committee reports and other legislative history make it quite clear that, for purposes of Senate Joint Resolution 1, the Deputies or Under Secretaries in the various departments would, when there clearly are vacancies in the Cabinet, become acting heads of the departments until new principal officers were confirmed, or, if Congress were not in session, until recess appointments were made. I believe this legislative history is extremely important, but if the President did become involved in this kind of dispute with his Cabinet the situation would nonetheless be most difficult and disruptive, especially in a period of crisis for the United States either domestically or with other countries around the world.

What could ensue is a conflict as to who is actually acting as President at a particular time.

The question that might arise is whether the President had, in fact, fired the Cabinet at the time they had met and decided to put in a new President. What we could end up with, in effect, would be the spectacle of having two Presidents both claiming the right to exercise the powers and duties of the Presidency, and perhaps two sets of Cabinet officers both claiming the right to act.

Thus there are dangers in the amendment, with all due respect to the Senator from Indiana. Nevertheless, I believe we should go forward, since the dangers involved in not enacting Senate Joint Resolution 1 are greater still and we do not know whether a procedure better than Cabinet determination can be found. Certainly if one were now possible, I believe the Senator from Indiana would have found it.

The Senator has wisely left open the way to further improvement. I urge that the Congress follow his lead, and move directly to continued examination of alternate procedures, to be enacted by the Congress, for determining when a President is unable to discharge the duties of his office.

Mr. BAYH. Mr. President, first of all, I am indebted to the Senator from New York, and so is the Senate, not only for his present statement, but also for the discussion which he stimulated on the :floor when we were considering the measure for passage earlier this year. The Senator points · out very correctly that there is a degree of :flexibility in this measure.

I am not so bold as to suggest that this is a perfect amendment. I believe that its perfection is based upon the ability of the men living at the time when the measure must be used to cope successfully with the problems and contingencies with which they are confronted. For that reason, we believed that the Cabinet, as we see it now, is the best body to · serve as a check. However, we might be wrong. Why close the door? Why not leave us a degree of leeway so that when Congress is confronted with different circumstances than we presently foresee, it could designate a different body and give it authority to act.

Mr. KENNEDY of New York. Mr. President, as I said to the Senator from Indiana, I have strong reservations about the use of the Cabinet in this matter. I believe that the Senator from Indiana has considered my suggestions and every other suggestion and recommendation which he has received.

I praise the Senator for coming forward with this legislation, for which he is more responsible than anyone else. I should like to ask a series of questions of the Senator from Indiana on another aspect of the proposed constitutional amendment. I think this would help in clarifying another important issue.

I go back to the colloquy which took place on the floor of the Senate when the matter was considered a month or so ago. Is it not true that the inability to which we are referring in the proposed amendment is total inability to exercise the powers and duties of the office?

Mr. BAYH. The inability that we deal with here is described several times in the amendment itself as the inability of the President to perform the powers and duties of his office.

It is conceivable that a President might be able to walk, for example, and thus, by the definition of some people, might be physically able, but at the same time he might not possess the mental capacity to make a decision and perform the powers and duties of his office. We are talking about inability to perform the constitutional duties of the office of President.

Mr. KENNEDY of New York. And that has to be total disability to perform the powers and duties of office.

Mr. BAYH. The Senator is correct. We are not getting into a position, through the pending measure, in which, when a President makes an unpopular decision, he would imme . immediately be rendered unable to perform the duties of his office.

Mr. KENNEDY of New York. Is it limited to mental inability to make or communicate his decision regarding his capacity and mental inability to perform the powers and duties prescribed by law?

Mr. BAYH. I do not believe that we should limit it to mental disability. It is conceivable that the President might fall into the hands of the enemy, for example.

Mr. KENNEDY of New York. It involves physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office.

Mr. BAYH. The Senator is correct. That is very important. I would refer · the Senator back to the definition which I read into the RECORD at the time the Senate passed this measure earlier this year.

Mr. KENNEDY of New York. It was that definition which I was seeking to reemphasize. May I ask one other question? Is it not true that the inability referred to must be expected to be of long duration, or at least one whose duration is uncertain and might persist?

Mr. BAYH. Here again I think one of the advantages of this particular amendment is the leeway it gives us. We are not talking about the kind of inability in which the President went to the dentist and was under anesthesia. It is not that type of inability we are talking about, but the Cabinet, as well as the Vice President and Congress, are going to have to judge the severity of the disability and the problems that face our country.

Perhaps the Senator from New York would like to rephrase the question.

Mr. KENNEDY of New York. Is it not true that what we are talking about here, as far as inability is concerned, is not a brief or temporary inability?

Mr. BAYH. We are talking about one that would seriously impair the President's ability to perform the powers and duties of his office.

Mr. KENNEDY of New York. Could a President have such inability for a short period of time?

Mr. BAYH. A President who was unconscious for 30 minutes when missiles were flying toward this country might only be disabled temporarily, but it would be of severe consequence when viewed in the light of the problems facing the country.

So at that time, even for that short duration, someone would have to make a decision. But r.. disability which has persisted for only a short time would ordinarily be excluded. If a President were unable to make an Executive decision which might have severe consequences for the country, I think we would be better off under the conditions of the amendment. .

Mr. KENNEDY of New York. The Senator realizes the complications for the people of this country and the world under those circumstances.

Mr. BAYH. I do, indeed. I also recognize our difficulty if we had no amendment at all. The Senator from New York realizes the consequences in that case. The Senator is aware of the time limitations which give the President a certain amount of leeway now. If herecovers from the illness within the time limitations, he would have protection under the amendment.

Mr. KENNEDY at the beginning, I believe there should be a continuing study of the problem. Based on my own personal experience and on what was brought out in the hearings, I believe that members of the Cabinet could be subjected to political strains of one kind or another under certain circumstances of danger which might arise for the United States. They might be impelled to challenge the President's ability and capacity for the wrong reasons. And when we think of the great crisis in 1919 with President Wilson and Mr. Lansing, it is apparent that under the procedure set out in section 4 of Senate Joint Resolution 1 there could actually be a question as to who was acting as President of the United States at a particular time. That is why this subject should receive continuing study by this body to determine whether an alternative to the Cabinet's acting could be evolved.

What if the President of the United States made a decision which was very unpopular with members of his Cabinet? I think back to the time of Abraham Lincoln in 1863. I think back to the time of President Andrew Johnson, and recall how unpopular he was with all the members of his Cabinet. They could have taken action, under the slightest pretext, to have him removed. Even with all the protections provided, I say the situation is dangerous. We would be deluding ourselves in thinking that by adopting the amendment the danger to our · people and the people around the world would disappear, because a danger would still exist. The subject deserves our continuing effort and attention.

Mr. BAYH. I agree. There is leeway with respect to Congress and the committees and the Cabinet.

In discussing dangers to the people, think of the danger after President Garfield had been felled by a bullet and we . had no President for 80 days. The danger of such a situation in this day and age is considerably more than the danger that could arise if the provisions of this amendment were invoked.

Mr. KENNEDY of New York. That is why I intend to support this amendment.

Mr. BAYH. I appreciate the Senator's comments.