Governor's inability definitely influenced and shaped the thinking of the framers of the Constitution in determining what provision should be made in event of Presidential inability. Accordingly we may consider those State constitutional provisions as a guide in interpreting the corresponding succession clause in the Constitution of the United States.

In most of the States at that time, in event of the Governor's "absence" from the State or during his inability, provision was made for the temporary exercise of the Governor's powers by the succeeding officer. The Governor was not ousted; he remained the Governor in those contingencies, resuming the discharge of his functions upon his recovery." So too, today, with very few exceptions, State Constitutions expressly or impliedly provide that where the Governor is unable to exercise the powers and duties of his office, the officer next in line of succession shall discharge them, but only temporarily.22

The inferences to be drawn from this review of State practice and experience relating to gubernatorial disability and its bearing upon the problem of Presidential inability have been summarized forcefully by Professor Joseph E. Kallenbach: 23

"*** State experience reinforces the point observable in national experience that situations of various kinds can and do arise involving inability of the Chief Executive to exercise his powers and which require devolution of these powers for an indefinite period of time upon the officer next in line of succession. It shows that constitutional provisions on this point are, in effect, self-executing. It shows that devolution of power in these circumstances can be brought about by simple acquiescence of the incumbent when he is able to recognize his incapacity. He does not, by so doing, remove himself from office, but merely acquiesces in the

Richard H. Hansen, Executive Disability, 40 Nebr. L. Rev. 697, 701-703 (1961).

22 Kallenbach says that currently 46 States have such provisions. Presidential Inability, House Committee Print, 84th Cong., 2d sess. 40 (Jan. 31, 1956). See also, Richard H. Hansen, The Year We Had No President (to be published soon). A fairly complete survey of provisions of State laws relating to disability of the Chief Executive of the States also appears in Presidential Inability, House Committee Print, ibid. 66 et seq.

23 ibid. 43.

operation of the constitutional rule that permits and requires the succeeding officer to exercise the powers of the chief executiveship. The officer named by the constitution or laws as the one upon whom the authority to act as governor shall devolve has no option but to exercise the powers and duties of that office, even though his doing so does not oust the incumbent from the office of governor permanently. His duty to so act is an ancillary and conditional function of the incumbent in the office next in line in the succession. When and if the cause occasioning the temporary devolution of power has ceased to be operative, there must be a resumption of his constitutional powers and duties by the temporarily displaced Chief Executive. His assertion of his right and capacity to reassume the powers and duties of his office is ordinarly regarded as sufficient to restore them to him." 5. The dictates of reason and established rules of statutory construction.

As between two different interpretations to be given a constitutional provision, it is fundamental that one will be adopted which avoids inconsistencies and results which are harsh or absurd.

Inherent in the position that a succeeding Vice President becomes President upon the latter's inability, is the fact that the President must forfeit his office, if through no fault of his own he suffers inability, however temporary it may be. It is difficult to draw any such conclusion from the language of the Constitution, or to imply one which carries with it such grievous and drastic consequences, particularly where the Constitution expressly declares only one way to remove the President, and that is through impeachment.

The absurdity of such an interpretation is made even more apparent when considered with the language of Article II, section 1, clause 6 authorizing the Congress, in case of disability of both the President and Vice President to determine "what officer shall then act as President." It is claimed by those who assert that the Vice President becomes President in event of Presidential inability, that the limiting clause "until the Disability be removed, or a President shall be elected," refers only to the clause immediately preceding it, under which an officer designated by law acts as President when both the President and Vice President are dis

abled, and that it has no reference to the first portion of the clause where the President alone suffers inability. It is therefore argued that the Vice President under the latter contingency takes office for the remainder of the term free of any limitation.24

This contention, if accepted, would create an inconsistency and disparity in treatment between the President and Vice President most difficult to explain on rational grounds. We would then have the anomalous result that the Constitution discriminates against the President who has been elected and favors one not elected to that office. Such a dubious construction may not be adopted.

As was said in the 1881 debate on the subject: 25 "What principle, what consideration of expediency or policy is it which forbids the President, when relieved of his 'inability,' from reassuming the office to which he was elected, which does not apply with at least as much force to the VicePresident who was not elected to it? I can imagine none."

There is another apparent weakness in this argument. Assume that both the President and the Vice President were disabled. Under the clause providing for joint disability, if the President recovered before the Vice President, he could resume the responsibilities of his office. It obviously makes little sense to say that under the first clause where the President alone is disabled that he forfeits his office permanently, but that under the second clause where both he and the Vice President are disabled simultaneously, the President would not forfeit his office if he recovers first.26 The framers of the Constitution were wise and mature men. Absurd and illogical results, repelled by reason, have no place in the Constitution. Nor should an interpretation involving an anomaly be imported into the Constitution unless the language itself compels it; here, "there is no such compulsion." 27

24 Senator Charles W. Jones, 13 Cong. Rec. 142-143, 191-193 (1881). Senator Richard Coke, 13 Cong. Rec. 141 (1881). See also, William W. Crosskey, Hearings before Special Subcommittee of House Committee on the Judiciary to Study Presidential Inability, 84th Cong., 2d sess. 107 (1956). 20 Crosskey, id. 107.

27 id.

6. The great weight of constitutional authority.

In the face of these arguments, it is not surprising that almost every student of the Constitution who was recently canvassed to express an opinion, agreed that in case of temporary Presidential inability, the Vice President succeeds only to the powers and duties of the office as the acting President, and not to the office itself; 28 and in event of a seemingly permanent disability, the large majority of these scholars concluded the result would be the same because it is always possible that the disability may be removed.20 Both of my immediate predecessors, former Attorneys General Herbert Brownell and William P. Rogers 31 concurred in the majority view. This view, in my opinion, is clearly right.

80

31

As against the arguments supporting this array of opinion, there are arguments on the other side expounded by relatively few scholars.

A major contention already noted is that the immediate antecedent of the words "the Same" in Article II, section 1, clause 6 of the Constitution is "said Office," and, therefore, a reasonable interpretation is that it is the Presidential office,

Included in this group of distinguished scholars of the Constitution were: Stephen K. Bailey, Princeton University; Everett S. Brown, University of Michigan; Edward S. Corwin, Princeton, N.J.; William W. Crosskey, University of Chicago Law School; Charles Fairman, Law School of Harvard University; David Fellman, University of Wisconsin; Thomas K. Finletter, Esq., New York, N.Y.; James Hart, University of Virginia; Arthur N. Holcombe, Harvard University; Mark DeW. Howe, Law School of Harvard University; Richard G. Huber, Tulane University; Joseph E. Kallenbach, University of Michigan; Jack W. Peltason, University of Illinois; J. Roland Pennock, Swarthmore College; C. Herman Pritchett, University of Chicago; John H. Romani, the Brookings Institution, and Arthur E. Sutherland, Law School of Harvard University. Presidential Inability, House Committee Print, 85th Cong., 1st sess. 49–52 (1957).

id. 52-54.

30 Herbert Brownell, Jr., Presidential Inability: The Need for a Constitutional Amendment, 68 Yale L.J. 189, 192-193, 203-205 (1958); Hearing before the Special Subcommittee of the House Committee on the Judiciary on Problem of Presidential Inability, 85th Cong., 1st sess., 4, 10 (1957).

& Presidential Inability, Hearings before the Subcommittee on Constitutional Amendments of the Senate Judiciary Committee, 147, 148-149 (1958). On the other hand, former Attorney General Wayne MacVeagh would probably have supported the minority view. During Garfield's illness, MacVeagh, although agreed on the desirability of having Vice President Arthur act as President, felt that "Arthur's exercise of presidential power would be equivalent to Garfield's abdication." Silva, Presidential Succession, op. cit. supra note 11, 56. Unfortunately, we are not favored by any exposition on the subject by MacVeagh.

not merely the President's powers and duties, which devolve upon the Vice President.32

Arguments to the contrary resting on established principles of statutory construction have been made in detail above and need not be repeated. Suffice it to say, Article II does not provide that the Vice President shall become President upon the latter's inability. Since it is a contradiction in terms to have at one moment two Presidents the one disabled, the other in office-and for the other reasons mentioned, the contention that "the Same" means "said Office" must be rejected as lacking in merit.

Another argument made in support of the theory that it is the office of President which devolves, is that the Constitution vests executive power in the President, knows a single Executive, and by implication bars any one from exercising it other than one actually President. It is claimed that in recognition of this principle, the courts have denied any one the right to discharge powers and duties of the President which under the Constitution the Constitution require his personal

judgment.33

But when the Constitution is viewed as a whole such an interpretation of the vesting clause is completely consistent with a construction which permits the Vice President to act as President while the latter is unable to perform the duties of his office. Thus it has been pointed out: 84

"*** The restrictions laid down by the courts apply to the delegation of executive power by the President to his subordinates, and should not by analogy be extended to the devolution of this power in such a way as to defeat the purpose of the succession clause. The records of the Federal Convention give no indication that the framers of the vesting clause would preclude the possibility of an acting President in case of vacancy or inability in the Presidency. Their sole purpose in writing the vesting clause appears to have been the establishment of a single, as contrasted with a plural,

Theodore W. Dwight, Presidential Inability, Vol. 133 No. Am. Rev. 436, 443 (November 1881); Representative Henry A. Wise and Senator Robert J. Walker, Cong. Globe, 27th Cong., 1st sess. 4-5 (1841); Senator Charles W. Jones, 13 Cong. Rec. 142 (1881), 14 id. 918 (1883).

33 Brown and Silva, Presidential Inability, House Committee Print, supra note 22, 12.

id. 12-13. See also, Silva, op. cit. supra note 11, 78–77.