inadequate and a change is called for. The committee is satisfied, or ought to be satisfied, that there is now a broad base of support for necessary changes. This is evidenced by resolutions of the American bar and local associations and other organizatinons that this problem must be solved. Americans generally fully support the recognition by this committee and its chairman of the urgency of the matter. We certainly need to do whatever is necessary to strengthen the concept of the continuity of the democratic institutions. Certainly it ought to be clear, and I am sure it is that world conditions are such that we cannot, in any time, under any conditions, suffer a time lag with respect to the continuity of our own institutions.

We have obvious problems, all of which you recognize the legal form, the procedure itself, the language, the legal effect, personalities, and politics-but I conclude with only one admonition which is old homespun philosophy: The time has come to do something, even if it is wrong.

Mr. Chairman, I have a prepared statement, which I request be inserted in the record. Knowing full well of the ability of the members of this committee, I am sure you will work out this problem to the satisfaction of everyone concerned.

Thank you very much.

The CHAIRMAN. You want your prepared statement in the record? Mr. FASCELL. Yes, thank you.

(The full statement of Mr. Fascell follows:)

STATEMENT OF DANTE B. FASCELL

Whenever one of our Presidents becomes ill or dies while in office, there is invariably a flurry of concern about clarifying our laws so that we may be able to deal more effectively with such situations than we have in the past. Thus far, such flurries have not resulted in action.

President Garfield lay unconscious for most of 80 days after he had been struck by an assassin's bullet. During that time, the country was without a President even though the Constitution provides that when the President is unable to carry out his duties the Vice President is to take over. It does not, however, say whether he is to become President or merely act as President. It does not say whether he is to take over until the end of the term or only until the President again becomes able. It does not say who will decide when such a disability begins and ends.

Because there is so much doubt about the law, Garfield's Vice President Chester A. Arthur did nothing. The doubt also dissuaded Vice President Marshall from acting during President Wilson's 18-month illness. The voluntary agreement between President Eisenhower and Vice President Nixon was not worked out until after the President had recovered from his last illness-too late for it to be useful. In any case, there is general agreement that a Vice President acting on the basis of a voluntary agreement cannot have the full confidence of the people. Only an amendment to the Constitution can provide the necessary air of legitimacy.

After each of these incidents, the problem of presidential inability and succession was explored, but not until last year was there any semblance of agreement on a way to solve them. In January of 1964, at the call of the American Bar Association, a dozen of the Nation's leading legal scholars met here in Washington, discussed the possible solutions and, after two days, emerged with a consensus subsequently endorsed by the ABA house of delegates.

Later in January, the Senate Subcommittee on Constitutional Amendments began hearings on presidential inability which continued in February and March. From these hearings and the many executive sessions which followed them, there emerged Senate Joint Resolution 139 of the 88th Congress which the Senate passed by a vote of 65 to 0 shortly before adjournment last year. Chairman

Celler has introduced this legislation in the 89th Congress, House Joint Resolution 1. I have sponsored an identical measure, House Joint Resolution 235. This proposed constitutional amendment would solve two problems. It would solve the problem of vacancies in the office of Vice President, which has existed on 16 different occasions for periods totaling more than 37 years, by directing the President to nominate a Vice President who shall take office upon confirmation by a majority of both Houses of Congress. With the inauguration of Vice President Humphrey on January 20, 1965, we have a Vice President of the United States for the first time in 14 months.

It would also solve the problem of presidential inability by directing the Vice President to discharge the powers and duties of the Presidential office whenever the President declares in writing that he is unable to carry them out or, if the President does not so declare, whenever the Vice President-with a written concurrencce of a majority of the heads of the executive departments or such other body as Congress may by law provide transmits to Congress his written declaration that the President is unable to discharge his duties. In either case, the President shall resume his office whenever he transmits to Congress his written declaration that no inability exists, unless the Vice President, with a written concurrence of a majority of the heads of the executive departments, transmits to Congress, within 2 days, his written declaration that the President is unable to carry out his duties. In such a case, Congress is to decide the issue immediately and unless two-thirds of both Houses decide that the President is unable, the President shall resume the powers and duties of his office.

Thus, the bill provides an orderly procedure whereby the Vice President may act as President in cases of presidential inability and, furthermore, provides the mechanism whereby a President can resume his office after recovery from a disability.

The bill is closely modeled after the recommendations of the American Bar Association proposal of January 1964. The proposed amendment also incorporates the recommendations of the Dade County Bar Association's resolution of March 5, 1964.

More recently, the Committee for Economic Development has issued a national policy statement on "Presidential Succession and Inability." The principal difference between their recommendations and this measure is that they would permit disagreements between the President and Vice President on disability to be resolved by the Cabinet. The Cabinet decision would stand unless upset by the Congress through the impeachment process.

On one thing there is complete agreement: There is urgent need for immediate action. In these perilous times there can never be a moment's doubt about whose hand is responsible for running this country. This resolution is the best solution. I have yet seen and I urge the committee to act favorably upon it. The CHAIRMAN. The Hon. Charles Bennett.

STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. BENNETT. I congratulate the committee for undertaking this important subject. As a member of the Armed Services Committee for many years, with the background of the full and ever-present knowledge of the fact that the President is Commander in Chief, I would like to underscore what Mr. Fascell said on the need to have somebody ready without any lapse of time to fulfill these responsibilities. That is one of the responsibilities of the Presidency. There are many others which I am sure the committee knows fully.

I want to congratulate the committee for undertaking this.
The CHAIRMAN. Have you got a statement?

Mr. BENNETT. I am submitting a statement. If you don't mind, I will add this to what I have said.

The CHAIRMAN. I accept it; thank you, sir.

(The full statement of Mr. Bennett is as follows:)

STATEMENT OF REPRESENTATIVE CHARLES E. BENNETT

Mr. Chairman, while the framers of the Constitution gave scant attention to the problem of presidential inability and succession, the fact remains that since the Presidency of George Washington the Nation has been without a Vice President 16 times, and has had 3 President's who were so disabled there was grave doubt of their ability to perform their duties as President. We are all familiar with the lengthy periods when Presidents Garfield and Wilson lay close to death, and aware that during the illness of President Wilson, Mrs. Wilson and members of the White House staff conducted affairs of state because Vice President Thomas Marshall feared his acting as President would oust President Wilson from office.

Most recently the heart attacks of President Eisenhower, and the assassination of President Kennedy, again reminded us of the compelling and urgent need for Congress to provide for the orderly and prompt determination of a President's disability, and on the death or disability of the Vice President for the selection of an immediate successor.

Since 1953 I have in every Congress introduced legislation calling for a solution to the problem of presidential disability and succession, and I want to thank this committee and all those gathered here today for their interest and resolve to provide a lasting solution to this problem.

In this Congress I have sponsored House Joint Resolution 33, providing that in cases of death, resignation, and removal, the office of President shall devolve upon the Vice President, and in case of inability the powers and duties shall devolve on the Vice President until the inability is removed. The commencement and termination of any inability shall be determined in whatever manner Congress may provide, and where there is neither a President nor a Vice President Congress may declare who may become President, or in the case of inability who may act as President.

During the Eisenhower and Kennedy administrations an agreement existed between the President and the Vice President on the course to follow in the event of disability, and such an agreement now exists between President Johnson and Vice President Humphrey. But while these agreements may help remove the problem of disability where there is a Vice President, where there is no Vice President they present no solution for the Nation.

Former Vice President Richard Nixon, perhaps one of the most knowledgeable persons in this field, who experienced a period of disability by his Chief Executive, not long ago reminded us of the urgent need for congressional action with the following comment:

"Fifty years ago the country could afford to 'muddle along' until the disabled President got well or died. But today when only the President can make the decision to use atomic weapons in the defense of the Nation, there could be a critical period when 'no finger is on the trigger' because of the illness of the Chief Executive."

Events of recent days make this point crystal clear.

I urge this committee to give careful consideration to my bill (H.J. Res. 33) and to recommend its adoption to the House.

Thank you.

The CHAIRMAN. I understand that Representatives Cohelan and Gonzalez will submit statements which will be inserted in the record. The CHAIRMAN. Senator Bayh, would you care to resume the stand? Mr. Poff was addressing inquiries to you.

Continue.

Mr. POFF. Thank you, Mr. Chairman.

I believe we will take up a new line of questioning now, if the Senator cares to do so.

If your bill became a part of the Constitution, would it meet the situation where the President and the Vice President simultaneously become disabled?

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Senator BAYH. No; it will not.

Congressman Rodino posed that question earlier. This is a matter, quite frankly, which, if we were seeking perfection, should definitely be included. But we felt that we had to confine our efforts to the most vital, necessary problems now facing us.

We should get these proposals on the books and then seek others. Mr. POFF. May I ask a related question?

Let us suppose the situation in which the office of Vice President becomes vacant and simultaneously the President becomes disabled. In your bill or in the Constitution, what would be the procedure?

Senator BAYH. In other words, the situation we had all of last year and the President would become disabled?

Mr. POFF. I could imagine a different situation.

Suppose the Vice President were killed by an assassin's bullet, instantly, and suppose another bullet from the assassin's gun disabled the President, and suppose that the Celler-Bayh amendment were a part of the Constitution, what would happen?

Senator BAYH. The Vice President certainly could not act and the President would be unable to appoint a successor. This would be an impasse.

Mr. POFF. Isn't this a reasonable possibility?

Senator BAYH. This again falls into the category of a proposal much nearer perfection than the chairman's and my bill is. Perhaps we would want to provide unquestionable authority of the Congress to provide for these contingencies by statute, but we get into a rather lengthy amendment to the Constitution if we incorporate these.

Mr. POFF. Would it complicate matters greatly if the amendment were changed in such a manner as to permit the person next in line of presidential succession to initiate the action which your amendment vests originally with the Vice President?

Senator BAYH. If I may say so, it probably would because of the fact that the Speaker of the House is next in line of succession.

Then you open the whole can of worms of whether he would have to resign his own position as Speaker of the House which is a legislative office, or whether we would have a commingling of powers of legislative and executive.

Would he have to resign his seat as a Congressman? This very greatly complicates the problem.

The CHAIRMAN. Then, of course, if the Speaker becomes active and the disability is removed, then he is out in the cold; he is neither Congressman or Speaker?

Senator BAYH. That is correct. I did not get a chance to add one additional sentence that I want to add to the colloquy I had with the distinguished member of this committee from North Carolina.

The difference between outright succession and disability as far as the Tyler precedent is concerned is that in disability we hope and pray to God that the disability will be removed. With this amendment, the President can reassume his powers and duties, and if he is replaced by the Vice President, that the Vice President can resume the powers and duties of his own office.

Mr. MOORE. Will the gentleman yield?

Mr. POFF. Yes.

Mr. MOORE. Since the gentleman from Virginia has raised this question, I would like to also ask the distinguished Senator this: What if we have a situation in which the President himself refuses to acknowledge his inability or the fact that he is incapable of handling the office and the Vice President for one reason or another, does not initiate, under his own signature, that which is set forth in section 3 of your bill; do you feel it is necessary that something should be done to this motion, in consideration of the case where the President does not take it upon himself to declare his own disability, and with the Vice President refusing to act?

I assume you have had some discussion of this. I would like the Senator's attitude on this.

Senator BAYH. We had considerable discussion. In fact, one small change that we made in the final committee bill which, if you will notice, is a bit different from House and Senate Joint Resolution 1, was to give joint responsibility to the Cabinet and the Vice President to act under section 4. We have another possibility; namely, not only that the President does not declare himself, but the Vice President does not so declare, nor does the Cabinet initiate.

It seems to me that when we are dealing with presidential power that is given by the people, aren't we providing enough contingencies that unless we can get one of these individuals to act, that perhaps the President should be permitted to continue?

Mr. MOORE. Well, we had I believe, if I might say in response, we had a circumstance in the Wilson administration where this is exactly what occurred. It would seem to me this is a contingency that is very real and could conceivably happen.

Senator BAYH. It is.

Mr. MOORE. As I read your section 4 and I may not have before me House Joint Resolution 1 as amended, but it seems to me that your section 4 is conjunctive rather than otherwise, it is "The Vice President and a majority of the principal officers of the executive departments."

Senator BAYH. But either may take the initiative.

Before we had it "The Vice President with the concurrence"

Mr. MOORE. Then you have not amended?

Senator BAYH. No; you read it properly "Whenever the Vice President and a majority of the principal officers," it does not say "The Vice President with the concurrence."

Mr. MOORE. It would seem to me that we are going to have to change it if that is the correct language as amended to carry out the full intent, as the Senator has expressed it here, we are going to have to make a word change there to carry forth your thought.

Right at the present time, as I read it, sir, it would seem to me that "The Vice President and a majority of the principal officers" would have to collectively transmit to the President and Senate and Speaker of the House a written declaration.

Senator BAYH. That is correct; there is no question about that. Either may take the initiative. It was not our intention to remove either the Vice President or the Cabinet to permit circumstances where one could act without the other.