June 30, 1965 (2)

The Senate resumed the consideration of the 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 VicePresidency and to cases where the President is unable to discharge the powers and duties of his office.

Mr. BAYH and Mr. McCARTHY addressed the Chair.

The PRESIDING OFFICER. The Senator from Minnesota.

Mr. McCARTHY. If it were not for the fact that the amendment provides that the Congress of the United States has a right to designate some body other than the Cabinet to pass upon the question of Presidential disability, I could not support the amendment. The Senator from New York has pointed out the necessity, and I hope that the appropriate committees of the Congress and the Congress will give consideration to some other body's passing upon the question of Presidential disability. If that provision were not in the amendment, I could not support the proposed amendment, and I would urge its rejection. History shows that it is better to have one sane king rather than two who are not, each one of them claiming to be the right king. There is the possibility of a situation in which one man, having been elected President, claims he was I capable of exercising the duties of his office, and the other person, the Vice have President, engages in a letter-writing They contest as to which is the appropriate man. There could be a body other than ate. the Cabinet which should have the ability to make a decision which would have the effect of giving the American public confidence ‘n the person they had ap- RIS proved and a disposition not to accept from the authority of someone who would be from disapproved.

It is my judgment that it would have been better to follow the recommendations made by the Senator from illinois [Mr. DIRKSEN] and not try to be so spe- the cific as provided in the present amendment. I

Mr. KENNEDY of New York. Mr. that President, will the Senator yield?

Mr. McCARTHY. I yield.

Mr. KENNEDY of New York. Let us go back to another situation, which I am sure the Senator from Indiana rec- may ognizes. A Cabinet decides that a President was disabled. The President fires if, the Cabinet. The members of the Cabinet say they did not receive notice that from they were fired until after they had declared the President disabled. The President says he fired them first. If the Congress is in recess, the President appoints another Cabinet, or else he says or the Deputies and Under Secretaries are now the Cabinet. There would be two Presidents and two Cabinets. There would be a conflict as to which ones were the members of the Cabinet and as to whether the members of the first is Cabinet had made the decision before or after they were fired by the President.

It is recognized by the proposed leg- who islation that this is a problem. I do not believe the danger disappears by the adoption of the amendment. I do not think, when we adopt the measure, that ana the problems of our - Executive are gone and that we do not have to worry about it any more. We have to continue to worry about it. Although the legislation was is better than the situation at the pre$- ent time, there will be situations which might cause difficulty.

Mr. McCARTHY. Generally speaking, it is better, but there could be worse situations arising under the amendment than there would have been under the has indeterminate and vague way in which in we could have moved.

The amendment has nothing to say a about whether the executive officers who pass on the disability have been confirmed by the Senate. This is a go point which might well be included in the amendment. I believe that they have to be executive officers confirmed the by the Senate. We would have to work out the making of temporary appoint- e 1g ments. The Senator from New York he said that we could have two Cabinets. This would be something like the old days in Avignon, when there were two the Popes, which created a great deal of trouble, the same kind of trouble which was created for many, many years in England when two Kings claimed the crown. It has meant nothing but trouble.

do not know whether, under this amendment, the executive officers would to be confirmed by the Senate. could be temporary appointees, which could be passed upon by the Sen-

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

The PRESIDING OFFICER (Mr. HarRIs the chair). Does the Senator Minnesota yield to the Senator

Tennessee?

Mr. McCARTHY. I yield.

Mr. GORE. The Senator from Minnesota finds some consolation in the fact that, if I have understood him correctly, amendment provides that Congress could designate another body by law. invite his attention to the possibility this could compound the question, because the amendment reads:

Whenever the Vice President and a majority of either officers of the executive departments or of . such other body as Congress by law provide.

I should like to inquire of the Senator in addition--

Mr. McCARTHY. Ask the Senator

Indiana.

Mr. GORE. There would be a possibility of a contest or controversy between the Cabinet that may or may not have been dismissed, and one which may may not have been confirmed by the Senate. Might there not be the probability of a contest between the two groups which, by the conjunction or, are permitted to perform the same function? Mr. McCARTHY. I believe that there great uncertainty as to whether Congress could act and designate some other group, or define the executive officers were to pass upon this questionofficers who would be approved by Congress. But this is an open question. I should like to ask the Senator from Indiwhether this is an open question, or whether there is some uncertainty.

Mr. BAYH. First, let me go into a brief explanation of why this provision included. This was the result of the consensus meeting with scholars and exAttorneys General whom I shall not bother to enumerate, trying for the first time in congressional history to weld together the 42 different proposals which previously came before Congress. This always been historically a problem, trying to reach agreement and to reconcile the differences in order to obtain two-thirds majority.

It was felt that if there was an arbitrary Cabinet that completely refused to along with the fact that the President, who was obviously disabled, was disabled-the condition referred to by Senator from New York-the President might get wind of it and, although h m . ht b e · m ex t reme 1 Y b a d con 1 Ion, might manage to have issued a document firl ·ng the Cabi'net This would not preclude Congress, in its · wisdom, from establishing another panel, perhaps, of majority and minority leaders of both Houses, the Chief Justice of the Supreme Court. We in our wisdom as Members of Congress, would do so because it is wise. This body, in · conjunction with the Vice President, could make its determination.

Mr. McCARTHY. In the meantime, who would control the Army, Navy, and Air Force?

Mr. BAYH. The President of the United States.

Mr. McCARTHY. Whoever he might

Mr. BAYH. Whoever he might be.

Mr. McCARTHY. Which one might

Mr. BAYH. He would be the President until a declaration from the Vice President and a majority of the Cabinet or the other body had been made and received by the Speaker--

Mr. McCARTHY. We do not accept the determination of this body. We are going to set up another body.

Mr. BAYH. That is correct.

Mr. McCARTHY. Congress would have to act quickly to set up another body which might act in such a case.

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

Mr. McCARTHY. I yield.

Mr. GORE. The answer of the Senator from Indiana indicates that he is thinking of the possibility of action by Congress at such time, and after such time as there may be an obstinate, nonexistent, or otherwise inactive Cabinet. As I read the proposed amendment, Congress could, by law, provide now, subsequent to approval of this amendment-- Mr. BAYH. The Senator is correct.

Mr. GORE. For such a body. Or, to add still further to the uncertainty, it could await such time as the Senator has foreseen when, because of uncertainties, or because of uncertainties which are not now unforeseen. Congress could act at that time.

Mr. McCARTHY. I am not sure whether this body could not be a body within the Congress itself.

Mr. GORE. Will the Senator yield once more?

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

Mr. GORE. This is done specifically for the purpose of giving Congress a certain amount of leeway which the Sena tor from Minnesota feels it should have?

Mr. BAYH. I should be glad to respond to that. Any time Congress in its wisdom thought it necessary, if further discussion and deliberation on this issue by Congress led it to believe that another body should be established, it could establish it.

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 d't' 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 wish the REcoRD to be abundantly clear that that is the case. I am glad tl:ie Senator brought up that point. I believe that this colloquy on that point is important and should be added to that already in the RECORD.

The Cabinet, upon enactment of ratification, has the responsibility, unless Congress chooses another body, at which time that other body, and that other body alone, working in conjunction with the Vice President, has the responsibility. Indeed, Congress may choose a third body.

Mr. GORE. Mr. President, w111 the Senator from Minnesota yield?

Mr. McCARTHY. I yield.

Mr. GORE. I suppose it might be possible to read legislative intent into this conjunction, but--

Mr. BAYH. If I may interrupt herelet me read the exact wording: "and «, majority of either the principal officers of the executive departments or-"

Either;or "of such other body as Congress may by law provide."

So when there is an "either/or" solution, it nails it down to one or the other.

Mr. GORE. It seems to me that if it is "either ;or" it places the two on a par--

Mr. BAYH. I do not see how that would be the case at all. The Cabinet has the responsibility. What if Congress by law should provide for another body that it feels should have the responsibility?

Mr. GORE. Then it has . s such a responsibility, too.

Mr. BAYH. Then it has such a responsibility, too.

Mr. McCARTHY. Could we not have both?

Mr. BAYH. If we have one or the other, we do not have both. If I have apples or pears, I do not have both.

Mr. McCARTHY. Under the language of the amendment we could keep the Cabinet and set up another body. We could run it through two or three bodies, and have the Cabinet act and then have the other body act.

Mr. BAYH. Whatever body acts should act quickly.

Mr. McCARTHY. The Vice President would have to act with either body. We might have a Vice President who would be reluctant to take office, and the Government would be paralyzed, unless the Vice President were willing to say, "I believe the President is not able to act." Mr. BAYH. It would be possible to impeach the President and the Vice President.

Mr. McCARTHY. It would not be possible to impeach the Vice President unless he were not willing to preside over the Senate or to vote in the case of a

Mr. BAYH. We cannot put the Vice President in office if he is unwilling to assume the office.

Mr. McCARTHY. He might be suffer­ the Cabinet? ing from inability himself, even before the President. I believe the amendment should provide that the elected officers of the Government, of the House and Senate, should decide that the President is unable to fulfill the duties of his office, and we ought to be able to move directly.

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

Mr. McCARTHY. I yield.

Mr. COOPER. Mr. President, I should like to direct questions to the distinguished Senator from Indiana, who is managing the conference report. I join with all my colleagues in paying tribute to the Senator for sponsoring the proposed constitutional amendment and for his persistent effort to bring it to final action. I raise these questions with respect to particular phraseology of the amendment. I quote this language:

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 so forth. The language is repeated in the next paragraph.

Is it the intention of Congress, as interpreted by the Senator from Indiana, who is in charge of the conference report, that the Vice President and a majority of the principal officers of the executive departments would transmit the information of the President's inability to perform his duties to Congress, unless Congress had by legislative action provided for the establishment of another body to perform this function?

Mr. BAYH. I should like to answer the Senator's question by setting up a hypothetical example. If the President became disabled, the Vice President would get the Cabinet together and say, "Gentlemen, I think the best interests of the country would be served if I, reluctant as I am, assumed the powers and duties of President."

The Cabinet, let us assume, would refuse to agree.

Congress, in its wisdom, upon studying the situation, and the obvious physical condition of the President, might judge that the Vice President was correct.

At that particular time Congress might by law set up another body. This body, upon agreeing with the Vice President, again might declare that the President was unable to perform his duties. At this time the Vice President would assume the office of Acting President.

Mr. COOPER. Then it is the intention, that this function and duty shall be that of the Vice President and the Cabinet unless the Congress provides that it shall be performed by another body. Is that correct?

Mr. BAYH. The Senator is correct.

Mr. COOPER. The duty would fall on the Vice President and the Cabinet, unless Congress by law provided that it should be the function of some other body created by Congress. Is that correct?

The PRESIDING OFFICER. The Senator is correct.

Mr. COOPER. It is intended that the words "principal officers of the executive departments" mean all the members of

Mr. BAYH. The Senator is correct. It means the official members of the Cabinet.

Mr. COOPER. In case the Cabinet acted and performed this function, the assent of the Vice President would be · required, even though a majority of the Cabinet members were willing to transmit information to the Congress that the President suffered from an inability.

Mr. BAYH. The Vice President must be a party to the decision.

Mr. COOPER. I believe it is well to have an answer to another question. In the event Congress decided to enact legislation to provide that another body, a body other than the Cabinet and the Vice President, should perform this function, would the Vice President be required to concur in the recommendation of such other body?

Mr. BAYH. Yes, he would.

Mr. COOPER. Not unless Congress so provided in legislation that it might enact?

Mr. BAYH. The wording of the amendment would permit two separate agencies, either the Vice President and the Executive Cabinet, or the Vice President and the other body.

Mr. COOPER. As I understood the question . raised by the Senator from Tennessee and the Senator from Minnesota, it was their fear that both the Cabinet and the Vice President, and another body which Congress might establish, might claim the authority to perform this function. The question of the Senator from Tennessee [Mr. GoRE] expressed concern that the words "either" and "or" might give rise to a situation in which the Vice President and a majority of the Cabinet, and a body which Congress might establish, would both claim the authority to exercise the function. Is there any problem about the use of those words that troubles the Senator from Indiana?

Mr. BAYH. That is a good point to clarify for the RECORD. However, in my mind it is perfectly clear that if I said I would go to the office of either the Senator from Kentucky or the Senator from Tennessee, my statement would not reasonably be interpreted to indicate that I would go to both. It would be either one or the other.

Mr. COOPER. Then the intent of the conference committee was that the language meant that unless another body were established by law, the Vice President and the Cabinet would perform the function; but in the event that Congress should establish another body by law, that body alone would have the authority to exercise the function, and in that event, the Vice President and the Cabinet would be without authority to exercise the function.

Mr. BAYH. It would then be exercised by the Vice President and the other body. The Cabinet would be out of the picture at that time. . Mr. COOPER. I raise another question. Would the Vice President have any part to play in the decision in the event that another body were established?

Mr. BAYH. The answer is "Yes." The Vice President must make a separate determination with either the Cabinet or another body.

Mr. COOPER. In either event ~e Vice President must participate?

Mr. BAYH. I think it is wise to bring out this point. I wish the RECORD to show that we do not desire two bodies to make the decision with the Vice President. If in its wisdom the Congress should decide that another body should make the determination, in the public interest of the country, as the Senator from New York and the Senator from Minnesota feel would be the case, and the Congress should go to the trouble of passing proposed legislation appointing such another body, at that time the newly created body and not the Cabinet would act with the Vice President.

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

Mr. BAYH. I yield.

Mr. GORE. I should like to submit a question to the distinguished senior Senator from Kentucky, who has been a distinguished judge. · Suppose in consequence of the amendment, Congress should proceed by law to create such a body as has been referred to. Then suppose at some foreseeable period a Vice President should appear before such a body, or with such a body, and that body should decline to act. Would there be any reason why, under the constitutional amendment, the Vice President and a majority of the principal officers of the executive departments could not then

Mr. COOPER. That is one of the questions which the Senator from Tennessee originally posed, and it is a question to which I have directed questions to the Senator from Indiana, [Mr. BAYH]. It is easy for one who was not a member of the conference committee and one who · is not on the Subcommittee on Constitutional Amendments and did not par · participate in its work, and one who has not worked on the question as has the distinguished Senator from Indiana and the distinguished Senator from Nebraska [Mr. HRUSKA], to raise questions. I admit it, but I think it important that questions be asked on such an important matter. It is easy also, with hindsight, to think of better language. But I must say, that I believe the language could be clearer. The answers of the Senator from Indiana have been directed to the intent of the committee respecting the language. The courts pay attention, but not all, to such declarations of intent.

Mr. GORE. If that is what the conferees mean, I suggest that the amendment should so provide. We are not passing on conversations held between the conferees. The Congress is asked to adopt language which provides thatWhenever 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.

That is what is before the Senate. Undoubtedly there have been many conferences and colloquies, but the language should be explicit when it becomes a part of the U.S. Constitution.

Mr. COOPER. The reason I directed questions to the Senator from Indiana [Mr. BAYH], was that his answers as the Senator in charge of the bill are important in the interpretation of the amendment.

Mr. BAYH. The language to which the Senator has referred has not been changed one iota from the specific language which was passed by this body. The conference report does not alter that language. Any interpretation of the Constitution, as the Senator knows, includes reference to the record of the debate, the record of the hearings, and specific interpretations placed upon the measure by the Senator in charge of the bill. Those who have been in particular intimate touch with it are those whose statements are considered in an interpretation of the measure. The Senator has made a considerable contribution to the debate by raising that point at the present time.

Mr. COOPER. The statements of the Senator from Indiana are more important than our statements.

Mr. BAYH. I would not go along with the Senator from Kentucky on that.

Mr. COOPER. From a legal standpoint, that is correct, for the Senator from Indiana is the Senator in charge of the bill. The Senator's statements bear upon the intent of the Senate to a greater degree than our statements would.

Mr. BAYH. I have made as crystal clear as I know how that the Vice President must make a determination, and he would make that determination with the Cabinet unless the Congress--

Mr. GORE. But the word "unless" is not in the amendment.

Mr. BAYH. If the Senator from Tennessee would like to listen to my thoughts on the point, I should be glad to state them for the RECORD.

Mr. GORE. But the Senator has used a word that is not in the proposed amendment.

Mr. BAYH. I should be glad to change the word I have used if that would help the Senator. I have not been able to make the interpretation clear by using another word; I thought I would try a little different approach.

Mr. GORE. I can understand the difficulty of making the point clear by using the language of the amendment, because the language of the amendment, in my opinion, does not support the interpretation which the able Senator has given to it. I would be glad, however, to listen to his interpretation.

Mr. BAYH. I really have nothing to offer that I have not already offeredperhaps insufficiently-to the Senator from Tennessee. The Vice President would make the determination with one of two bodies or three bodies. The choice would not necessarily be limited to one other body. The Congress might, in its wisdom 100 years from now, decide to choose the third body. One of those bodies would be the body with which the Vice President would act. Let the REcORD so state. That is what the committee feels. That is what I, as the original sponsor of the measure, feel. That is what the conferees believe. I do not know how we can get into the REcoRD a stronger interpretation than that which has been brought out by the penetrating questioning of the Senator from Tennessee.

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

Mr. BAYH. I am happy to yield.

Mr. GORE. If that 1s the clear intent of the authors of the amendment and the conferees, why cannot the conferees return to their labors and prepare language that is explicit?

Mr. BAYH. The Senator from Tennessee has been in the halls of this great body much longer than has the junior Senator from Indiana. I do not believe that it is necessary for his extremely junior colleague to point out that we have been 178 years getting a measure on this subject even voted upon in either House of Congress. I do not need to point out that · it has been 18 months and more the subject of deliberation by both Houses of Congress to get it thus far. It took us almost 2 months in the conference committee alone. I would seriously doubt the wisdom of going back to the conferees to risk undoing everything that has been done-the House already adopted the conference report this afternoon at a quarter after twelve-­ on the premise that we cannot understand what is in the measure. The Senator from Indiana, with all respect, feels that we have written a very good record as to what that language means, if, indeed, there is any doubt of its proper interpretation. The Senator from Tennessee is a student of law and has expressed doubt. For that reason, we have gone to some length to explain what the interpretation of the language is.

Mr. GORE. If I understand the rule of construction as to legislative intent and the interpretation of that intent is looked to only when there is doubt as to the exact and precise meaning of a statute or constitutional provision.

The able Senator has given us what he regards as the legislative intent. I do not doubt that what he has stated is the legislative intent. · But why will the legislative intent be searched out and interpreted to ascertain the meaning of language which states clearly that the Vice President, acting either with a majority of the Cabinet or with a majority of a body created by Congress can certify the disability of the President? Can this mean that Congress could by statute eliminate the function of the Cabinet though it could strip such power from a majority of the Cabinet even though such powers would have been vested by the proposed constitutional amendment? It seems to me that that is an unreasonable assumption. It is regrettable that for so long a time this constitutional need has not been met. It is to be regretted that 18 months have passed in which this problem has not been dealt with satisfactorily. But I doubt whether that is any excuse to proceed in one afternoon, on the floor of the Senate, to adopt a conference report containing an ambiguous provision, when the author of the amendment himself and the conferees themselves say it does not mean what it says.

Mr. BAYH. The Senator from Indiana does not agree with the Senator from Tennessee that the amendment does not mean what it says. I differ with the interpretation of the Senator from Tennessee. The RECORD will show that the Senate spent almost 7 hours debating the subject earlier in this session, and that the Senator from Tennessee participated in the debate.

I am not saying that reasonable men cannot disagree, but I am saying that, in my estimation, the interpretation is clear. I am further saying that if I am any judge of what Congress might do when confronted with situations provided for in this measure-and the Senator from Tennessee is probably a better judge than I of what this body might do, because he has served considerably longer and with much greater distinction-! presume that our successors on a later scene in this body, if confronted with a situation that they believed the Cabinet could deal with-it might be tomorrow-would, in the enactment of a law specifying another body, be astute enough to use enough words to satisfy themselves that such a body would in fact replace the Cabinet, pursuant to constitutional authority.

The Senator from Tennessee knows that it is much easier to be specific and to provide much greater detail in a statute than in a constitutional amendment. I believe we would have been in error to have written all this language into the Constitution. I believe we have been specific enough to have · covered the intent.

Mr. GORE. Is it the Senator's interpretation that the language should read somewhat as follows: ·

Whenever the Vice President and a majority of either the principal officers of the executive departments or, in the event Congress creates another body pursuant to law, then the Vice President and a majority of such other body as Congress by law shall create--

Mr. BAYH. I see no objection to that interpretation of what is written in the amendment.

Mr. GORE. If that is what is intended, why could not the conferees write it into the amendment? I do not believe the amendment is subject to that kind of interpretation, though, as the Senator says, that is the legislative intent.

Mr. BAYH. I feel, with all due respect to the Senator from Tennessee, that the interpretation is clear that if Congress specifies another body, it will not do so as a lark; it will do so because it wants another body to replace the Cabinet, which would have the primary responsibility until Congress precribed another body.

The Senator from Tennessee knows that if there were to be a conference for every little misinterpretation that might be involved among 100 Senators, we would never obtain a conference report. The Senator from Tennessee is more aware of this than I, because he was serving on conference committees before I was out of knee pants.

Mr. GORE. I appreciate all the nice compliments, but I doubt if that is a compliment.

Mr. BA YH. The Senator from Indiana intended it to be a compliment, because . the Senator from Tennessee knows how much respect the Senator from Indiana hasforhim.

Mr. GORE. I appreciate the respect; but do not put too much longevity on me.

Mr. J A VITS. Mr. President, will the Senator yield?

Mr. BAYH. I yield.

Mr. JAVITS. I have joined the distinguished Senator from Indiana for a long time in the endeavor to . solve the problem and am a cosponsor of Senate Joint Resolution 1. I should now like to propound a series of questions to him, in an endeavor to pinpoint what he has said in the answers he has given to other Senators.

First, would the Vice President, under section 4, have to act with a majority of the principal officers of the executive departments or of the other · body that Congress would provide by law, or would he act in and of himself, sending to Congress whatever notices he wished?

Mr. BAYH. It has to be joint action. Mr. JAVITS. Both have to act; but it does not have to be joint action in the sense that he is presiding over any body.

Mr.BAYH. No.

Mr. JAVITS. He sends his notice and the executive body sends its notice.

Mr. BAYH. Either way; or they could act together.

Mr. JAVITS. But they could act separately.

Mr. BAYH. Yes.

Mr. JAVITS. If they were hostile, they could act separately.

Mr. BAYH. Yes.

Mr. JAVITS. The action must be taken by a majority vote?

Mr. BAYH. Majority vote.

Mr. JAVITS. Suppose they did not like each other. If they separately noti­ . fied Congress, would that satisfy the amendment?

Mr. BAYH. I think that would satisfy the qualification.

Mr. JAVITS. Congress may, by law, provide for another body. May it provide that that other body shall be the Cabinet?

Mr. BAYH. Yes.

Mr. JAVITS. It may provide at the same time that it shall be the Cabinet only if it is composed of officers whose nominations have been confirmed by the Senate, not temporary appointees.

Mr. BAYH. The Senator from New York brings out a good point.

Mr. JAVITS. So we could do that ourselves by law?

Mr. BAYH. That is correct.

Mr. JAVITS. We could make them the body.

Mr. BAYH. Yes.

Mr. JAVITS. Could we also, by law, say that when we create the body, we settle the question of "either"; that is, that only one can take action; that whatever body we create, it is exclusive?

Mr. BAYH. That is what I was trying to point out.

Mr. JAVITS. Let us point it out now and nail it down.

Mr. BAYH. Congress in its wisdom could, in the enactment of the law, specify that the body should take the place of the Cabinet, and a new Cabinet could be created.

Mr. JAVITS. The body created by Congress is exclusive?

Mr. BAYH. Yes.

Mr. JAVITS. Whether Congress would or would not specify that the body should take the place of the Cabinet neither the Senator from Indiana nor I know. But the point is that Congress could.

Mr. BAYH. That would depend upon the wisdom of those who follow us.

Mr. JAVITS. Congress could make the body it created exclusive?

Mr. BAYH. Yes.

Mr. JAVITS. Twenty-one days are provided in which the Congress must act on determination of Presidential disability. Congress has provided, implicitly under the 21-day limitation, restrictions on a filibuster, a precedent for which is contained in the Reorganization Act.

Mr. BAYH. At the end of the 21-day period, nothing would prevent Congress from continuing to discuss the situation; but at the end of 21 days, the President would resume his office.

Mr. JAVITS. Nonetheless, Congress could protect itself against filibusters by writing an antifilibuster rule into the statute that would be passed to implement the amendment, could it not?

Mr. BAYH. That is correct.

Mr. JAVITS. Congress has done that under the Reorganization Act. The Senator may take my word for that. ·

Mr. BAYH. Of course. I was trying to tie it in with this particular issue. There would be nothing to preclude Congress from establishing rules as to how to use the 21 days. Congress could incorporate any rule it desired.

Mr. JAVITS. So inaction would restore the President to office.

Mr. BAYH. Yes. We are trying to place a safeguard around the · President.

Mr. JAVITS. Why is there not ageneric clause providing that Congress shall have power to pass legislation to implement the amendment, as, for example, was done with respect to section 2 of the 14th amendm.ent? I have tried, by the questions and answers that have been propounded and given, to show that there is ample opportunity and ample authority for Congress to act. Will the Senator now tell us whether there was any reason for not having a boilerplate implementing clause with respect to Congress?

Mr. BAYH. Yes; that is a good point. The Senator may recall that we discussed it at some length. When the distinguished Senator from Illinois and the distinguished Senator from Minnesota attempted to remove most, if not all, of the provisions from the bill, sections 3, 4, 5, and 6, as they were before, were incorporated. They do not constitute merely permissive legislation on the part of Congress.

There is considerable discussion among constitutional scholars, the present Attorney General, Attorney General Brownell, and three or four previous Attorneys General who feel doubt as to whether a statute would be constitutional. They say, “Let us not wait until we are · confronted with a crisis concerning the disability of the President to have it tested. Let us put it in the bedrock law of the land and eliminate doubt as to whether it is constitutional."

Second-and I believe it is more signif- . icant-is the fact that we · have tried to provide the President of the · United States with the kind of safeguards that he needs when he must make unpopular decisions which are necessary for the safety of our ' country. For that reason, we have required that the approval of two-thirds of the Senate shall be necessary before the President can be removed from office by impeachment. Thus, a hostile Congress · cannot . remove a President who is unpopular at the time because of decisions which he has made. Once he is elected President, he serves for 4 years.

If we were to take the statutory means, although it would still require two-thirds of the Senate to remove a President from office under impeachment proceedings, a majority of 51 Senators could remove a President for disability and thus get around the two-thirds safety clause contained in our present impeachment statute. Thus we feel that if we were to have a provision placed 1ri the Constitution requiring the approval of twothirds of both Houses of the Congress, we would have given the President much more safety than a mere act of Congress, which is the original case, providing that two- thirds of the House and Senate would be required to declare a President disabled rather than a simple majority. This could be changed at any time in our history. · I believe that this is important enough so that we should demand that the approval of two-thirds of the Cong:·ess be required before a President could be removed from office.

Mr. JAVITS. Mr. President, the Senator, however, affirms to us that Congress has full latitude to pass the necessary enabling legislation under the authority of what is meant by "such other body as Congress may by law :'rovide."

Mr. BAYH. The Senator is correct. Mr. JAVITS. Congress has the right to provide for the exclusivity of that body in exercising this authority, as well as the way in which the body shall exercise that authority, and other pertinent details necessary to the creation of such a body, its continuance, its way of meeting, the rules of the procedure, and the way in which it shall exercise its power.

Mr. BAYH. The Senator is correct.

Mr. GORE. Mr. President, what was the beginning of that question?

Mr. JAVITS. The Senator in charge of the bill affirms to us that Congress, under this amendment, would have full authority to enact a law, not only creating this body, but also giving it exclusivity in respect of its action under this particular amendment, and determining its procedure, how it shall be formed, and so forth.

Mr. GORE . This would not be by terms of the amendment itself, but would be by way of legislative intent?

Mr. JAVITS. No. I should say that it is by the express terms of the amendment itself, by the following words, "such other body as Congress may by law provide."

I believe that the words "by law pro­ . vide" is what the Senator in charge of the bill is implementing now in his statement . concerning what the law which creates this body can cover.

Mr. GORE. Congress could not enact a law which would be superior to a provision of the Constitution.

Mr. JAVITS. Certainly not.

Mr. GORE. This would then be a provision of the U.S. Constitution, let me . remind the Senator, which would provide, in explicit language that "Either a majority of the principal officers of the executive department, or such body as the Congress may by law create."

I doubt that the fact that Congress is authorized to create by law another body could reasonably be interpreted as conveying authority and power to deny to a majority of the Cabinet powers that the Constitution would then by this amendment vest.

Mr. JAVITS. Mr. President, I can only give the Senator my view-and I do this with great humility-and my opinion as a lawYer.

Mr. GORE. I am not as learned as the distinguished Senator, but I believe that my interpretation is reasonable.

Mr. JAVITS. I do not believe so, and I shall explain to the Senator my view. In a situation in which the Congress has conferred, and enacted legislation providing for a new body, and it would be my judgment, if I were a judge sitting on a case involving the constitutionality of that legislation that if that power of Congress were exercised, it was exercised to give exclusivity to the other body. I believe that the court would construe this amendment to most feasibly accomplish the purpose of Congress. As the purpose of Congress is to settle this kind of issue, rather than leave it in a great area of uncertainty and controversy, would it not be completely contrary to the purpose of Congress to create two bodies which could compete with one another?

I believe that · the construction which the courts would give to what we are doing is that if the Congress were to exercise the authority that the amendment would give, the courts would hold that that body has exclusivity as to its action. That is my opinion as a lawyer, and I have submitted my reasons to the Senator.

Mr. GORE. The Senator speaks quite ably, and whether he is a judge, a citizen, a Senator, or a practicing attorney, I respect his opinion. .

The points that I raise concern the justification for throwing this ambiguous question into the courts.

The time to be explicit is when we write an amendment into the Constitution. I say quite frankly to the Senator that I am unprepared to see this amendment approved in this uncertain way, with only a few Senators on the floor. I should like to see the proposal examined further, to my own possible satisfaction, to determine the exclusivity to which the Senator refers. I am not sure that comports with the rules of construction.

Mr. JAVITS. I should welcome the Senator's researching the matter. I have no quarrel whatever with the desire of the Senator to examine into the question carefully.

I am satisfied that this is what the proposal would do. I am speaking only for myself. I have great respect and regard for the Senator. I would stand aside to enable the Senator to satisfy himself by appropriate research to determine whether this is the way in which it should be handled.

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

Mr. JAVITS. I yield.

Mr. COOPER. Mr. President, a few moments ago when I addressed questions to the Senator from Indiana, my purpose was the same as that of the Senator from New York, to ascertain that if the first procedure . were followed-which concerns the Cabinet and the Vice President, whether it would possess exclusivity in its authority to act; and to ascertain if Congress were to create another body, such a body would have the exclusivity to which the Senator has referred.

I agree wholeheartedly, with the position of the Senator from New York, and also with his view that the courts would consider the purpose of the proposed amendment and not do an exercise in futility.

I believe that it would be unreasonable to follow any other position.

I ask the Senator if in his good judgment he believes that the language which proposes the alternative procedure is ambiguous of such ambiguity as to create a situation in which it would be unclear as to whether the Vice President and the Cabinet or the Vice President and the body established by the Congress would have authority to act. Such a situation would be the last thing that we would desire.

Mr. JAVITS. I do not believe it is so ambiguous as to make it unclear. It is not the optimum nor the most precise language. Every Senator and lawyer may have his opinion, and my colleague from Kentucky, in my judgment, yields to no other Sena.tor in his distinction as a lawyer but to me it is not so ambiguous as to be unclear. It is not the optimum language that I or the Senator from Tennessee or the Senator from Kentucky or other Senators might have sought, but I feel that I could vote for it in good conscience.

I agree with what the Senator has said. I do not see any earth-shaking necessity for not having a delay of a few days to look it over; but if I had to vote this afternoon, I would feel in good conscience that I could vote "yea."

Mr. GORE. Mr. President, if the Senator will yield, is there any necessity to vote this afternoon?

Mr. JAVITS. That has not been determined. But, as I have said, if I had to, I would vote for it.

Mr. GORE . The Senator from New York has raised a serious question. The Senator from Minnesota has raised a serious question. The Senator from Kentucky and the Senator from Ten- . nessee have expressed doubts. It seems to me we could give this matter a little more consideration than I admit I have given it. Perhaps I have been derelict in my duty in not studying it more before now, but, as I listened to questions ] raised by the . senator from New York and the Senator from Minnesota and began to read and study the conference report, I detected language that seemed to me to be uncertain, 1f not ambiguous.

Mr. BAYH. Of course, the Senate of is so ordered. the United States is the world's greatest deliberative body. if my colleagues feel it should be debated more, I believe we should do so. I have tried, and will continue, to listen to every argument. However, I have studied this measure enough to know-and I say this from the bottom of my heart-that if we ever expect to have a constitutional amendment on this important question, the most complicated and intricate issue that we have ever tried to put into the Constitution, because of all the medical ramifications and power struggles that might exist--if we ever intend to get a measure with respect to which there will not be a scintilla of controversy, with very specific wording, we might as well terminate the debate and throw this year and a half's work in the ashcan, because we are not going to do it.

I have never pretended to the Senate or to my colleagues that this measure is noncontroversial or that it would cover every possible, conceivable contingency that the mind of man could contrive. I have suggested that it is the best thing we have been able to come up with, and it is so much better than anything we have ever had before-namely, nothingthat I dislike to see us, by delay, jeopardize the great protection we would get by this constitutional amendment.

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

Mr. BAYH. I am glad to yield.

Mr. GORE. I would not expect an amendment to be drafted to meet the imagination of all. The point I raise here is that the able Senator brings to us the intent of the amendment which, in my view, is not supported by the language of the amendment.

If this is the intention of the House and Senate and the conferees representing those two bodies, surely the language can be explicit.

I have previously referred to the language as being ambiguous. I may have used the wrong term. It seems to me it is rather plainly stated that either the Cabinet or the body to be created by Congress could perform this official function.

There may be some way that the courts could find that exclusivity ran to the body created by law, but if that is the intent, why leave the decision to a court under some possibly tragic circumstance that might arise? Surely, a few days of delay and a few days of further consideration should not be interpreted as being antagonistic to an amendment. On the contrary, it is suggested as a means of permitting more careful consideration.

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

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

The PRESIDING OFFICER. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

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

The PRESIDING OFFICER (Mr. MuR­

PHY in the chair). Without obJection, it

Mr. MANSFIELD. Mr. President, I ask unanimous consent that the pending business, the conference report on presidential succession, be laid aside temporarily, pending conferences, and that the Senate resume the consideration of the Export Control Act.

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