duties of the office for either the remainder of the presidential term or until the Senate determines the inability to have ended, whichever occurs first.

Our present President has suffered at least one major heart attack, and President Eisenhower had periods of inability for the same and other reasons.

I realize there are numerous proposals before your committee on this subject and that a matter of this technical and possibly explosive nature deserves the fullest consideration in order to arrive at the most practical solution.

I am confident that this committee will give this matter thorough attention and provide the most constructive solution to the problem.

STATEMENT OF HON. ABRAHAM J. MULTER (DEMOCRAT, OF NEW YORK), IN SUPPORT OF H.R. 836, TO PROVIDE A METHOD FOR DETERMINING PRESIDENTIAL DISABILITY, AND FOR OTHER PURPOSES

Mr. Chairman, I am pleased to share with this distinguished committee my views on the formulation of legislation to secure continuity and stability of executive leadership in the event of presidential disability.

Mr. Chairman, ever since the Philadelphia Convention in 1787, many practitioners and students of government have been concerned about the ambiguity of one word in article II of our Constitution. Article II, section 1, clause 5 states, in part, that, "In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President ***."

The central word of concern in this clause is the word, "inability." The earliest concern about the meaning of the word was expressed at the Constitutional Convention, when Delegate John Dickinson, of Delaware, contending that the word was "too vague," appropriately asked: "What is the extent of the term 'disability' and who is to be the judge of it?" Today-almost 178 years later this committee meets to raise the same question and to attempt to resolve the same fundamental problems which it implies. The only difference is that, today, the urgency for a sound solution is made more manifest by reason of critical events in the American experience.

Let us take a look at some of these events. There are two of an especially "classical" nature. The first event evolved out of the circumstances in the aftermath of the shooting of President James A. Garfield. Garfield was cut down by an assassin's bullet on July 2, 1881, and lay stricken for a period of 80 days before death finally came on September 19. Shortly after Garfield was wounded, many in Government-including some of Garfield's Cabinet-urged Vice President Chester A. Arthur to assume the powers and duties of the Presidency; but these urgings sparked a controversy which centered on the question of whether the assumption of these responsibilities implied also the assumption of the office itself. Some held that if Arthur assumed these powers, he would in fact become President; and that Garfield would be unable to regain office if he subsequently recovered. Because of the allegedly doubtful legality of taking over the functions of the Presidency when the President was alive, plus the fear of creating the impression of being a usurper, Arthur refused to act.

Another event, with somewhat parallel circumstances and implications, took place in 1919-21 with the disability of Woodrow Wilson. During the last 18 months of his second administration, Wilson suffered two strokes and was left generally unable, physically and mentally, to discharge the functions of his office. Vice President Thomas R. Marshall was urged to assume the powers and duties of the office, but troubled by the same doubts that assailed Chester Arthur nearly 40 years before, he refused to act. Once again, the question loomed large: "Is the assumption of the powers and duties of the office of President tantamount to the assumption of the office itself?"

This vexatious question was raised once more in the last decade when President Eisenhower suffered illnesses in 1955, 1956, and 1957. I need not document the circumstances of these occasions, for we can all recall the danger that can be sensed when a President is incapacitated, particularly in the nuclear age, After his last ailment, President Eisenhower and Vice President Nixon made an agreement with respect to presidential disability. This kind of understanding has been repeated in the two succeeding administrations. Such arrangements governing the transfer of power in the event of the unexpected raise serious questions of a constitutional nature which cry out for an answer in this matter of

presidential disability. Article II of the Constitution is unmistakably clear in its intent:

"*** the Congress may by law provide for the case of * * * Inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President should be elected." The Constitution does not tell us how to determine presidential disability; nor does it tell us how to return the powers and duties of the office to the President after his disability. But this great document did make it incumbent upon future lawmakers to grapple with and solve this problem.

Let us therefore act with dispatch in this session of Congress. Let us act for two reasons: (1) so that there will be no question as to the exact nature of the transfer of power; and (2) so that the decision regarding this transfer will be judicious and circumspect.

I was delighted to see that the President, in a recent message to Congress, urged action in this matter of presidential disability by calling for a constitutional amendment. In this message, he stressed that, while "we are prepared for the possibility of a President's death, we are all but defenseless against the probability of a President's incapacity by injury, illness, senility, or other affliction." I could not agree more with this observation. Reacting in the same way to this deficiency in our system of Government, I introduced on January 4 of this :session a bill-H.R. 836-to remedy this problem. I submit that this bill would give effect to the goals enunciated in the President's message, and I, therefore, urge its consideration.

Basically, H.R. 836 provides a method for determining presidential inability. First, a simple majority of the House of Representatives would request the Senate, in the form of a resolution, to determine whether the President is unable to discharge his responsibilities. Upon adoption, the resolution would be forwarded to the Chief Justice of the Supreme Court, who would immediately convene the Senate in special session for the purpose of determining whether the President was disabled.

Second, if two-thirds of the Senators present and voting determine that the President is unable to discharge his responsibilities, the Senate would, by a resolution of two-thirds of those present and voting, direct the Vice President to serve as Acting President for the duration of the period that the President is disabled.

Implicit in this method of determination is the idea that the Vice President would act as President during the disability period; he would not be President. We could thus eliminate the problem faced by Vice Presidents Chester Arthur and Thomas Marshall, who feared that discharging the powers and duties of the Presidency implied irrevocable assumption of the office.

This bill also provides a solution to another question that has long been asked: How does the President go about regaining his office once he has recovered from his disability?

First, a majority of those present and voting in either House of Congress would adopt a resolution directing the Chief Justice of the Supreme Court to convene a special session of the Senate. The purpose of this Senate session would be to consider revoking its previous determination of presidential disability.

Second, if two-thirds of the Senators present and voting determine that the President is able to discharge his responsibilities, the Senate would declare, by a resolution adopted by two-thirds of those present and voting, that the powers and duties of the office of the President are restored to the President.

Mr. Chairman, when an amendment to the Constitution is under discussion, utmost caution must be exercised with respect to its language and intent. This responsibility demands insight and foresight of a nature possessed by those who met in Philadelphia to draw up the law of the land many years ago.

I urge that the proposed amendment under consideration anticipate the needs of future generations. For this reason, I should like to point to another facet of H.R. 836, specifically that portion which deals with the disability of the Vice President, or any other individual acting as President.

Certainly, the Vice President is just as mortal a man as is the President. He is generally subject to the same illnesses which could afflict a President. Appropriate steps should therefore be taken to protect this Nation in the event of the disability of a Vice President, or any other individual who acts as

President. In H.R. 836, I suggest that the methods of determining this disability and restoring the powers and duties of the Presidency be the same as those applying to the President.

Let us not be incomplete in our efforts to assure proper presidential leader-ship. History warns us that since 1841 a total of eight Vice Presidents have had to assume the powers and duties of the Presidency after the death of the President. I strongly urge that we include in any constitutional amendment a provision governing the transfer of power to another who would act as President in the event that a Vice President becomes disabled while discharging the duties of the office.

The objective of H.R. 836 is unquestionably in accord with that enunciated in the President's recent message. Above all, however, I strongly recommend that pertinent and realistic improvements be made in this matter of disability. Without improvements we are a horse-and-buggy government in the jet age. (Whereupon, at 2:20 p.m., the committee adjourned, to reconvene at 10 a.m., Tuesday, February 16, 1965.)

PRESIDENTIAL INABILITY

TUESDAY, FEBRUARY 16, 1965

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, D.C. The committee met at 10 a.m., pursuant to adjournment, in room 346, Cannon Building, Hon. Frank Chelf presiding.

Present: Representatives Celler, Chelf, St. Onge, Hungate, Tenzer, Conyers, Grider, Gilbert, Poff, Moore, Lindsay, MacGregor, Mathias, Hutchinson, and McClory.

Also present: William R. Foley, general counsel; and William H. Copenhaver, associate counsel.

Mr. CHELF (presiding). We are a little late, so I guess we had better get with it.

The first witness scheduled this morning is the Honorable Robert T. Stafford, Representative from Vermont, then the Honorable Don Fuqua, of Florida.

STATEMENT OF HON. DON FUQUA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. FUQUA. Mr. Chairman and members of the committee, I want to thank you for the opportunity to appear before the Committee on the Judiciary this morning in behalf of the resolution that I have introduced, House Joint Resolution 250, which is a companion measure to those introduced by the chairman of this committee and others proposing an amendment to the Constitution of the United States relating to the succession of the Presidency and Vice-Presidency in the case where the President is unable to discharge the powers and duties of his office.

The Constitution of the United States has left unsolved the problem of how the presidential duties and powers are transferred in the event a President becomes incapable of administering the duties of his office. This is particularly true in the event that the President does not understand and realize he has become incapacitated. Study of the problem indicates that there has long been an awareness of the lack of clarification by the Constitution, but, as of this time, it is a matter left unresolved.

Most recently, the assassination of President Kennedy saddened us deeply and also emphasized the importance and the need of a Vice President being in a position to quickly and assuredly take hold of the reins of Government as they fall from the hands of a faltering President.

There is a great urgency at such a time, but it could very well be just as pressing in the event of a President's incapacity to execute the powers and duties of his office. Our country has been most fortunate to never have experienced national chaos caused by the uncertainty and anxiety of the Nation being without responsible and capable leadership. Not that I would even anticipate there ever being such circumstances, I feel very strongly that there is a great need for clarification in the Constitution of the question at hand. This is so very true in our day when time is of essence to a degree greater than ever before since only the pressing of a mere button can result in hostile conflict that did take days to come about in years gone by..

Our Nation has a unique concentration of power and responsibilities in the office of the President since in most nations these are shared by two or even three officials. The President's active leadership is: most essential to the effective operation of the Government in every respect-domestic affairs, military leadership, foreign affairs, and even a leadership for Congress to perform its own role properly. Therefore, in this light, every effort toward bringing about the smoothest type of transition with as little uninterrupted exercise as possible of presidential powers and duties is most desirable and greatly needed. In the effort to amend the Constitution for clarification of the provisions relating to succession to the Presidency and delegation of the responsibilities of that office, I introduced House Joint Resolution 250 and humbly request that you give it and the provisions set forth in it favorable consideration.

In giving my support to such an amendment to our Constitution, I feel it is most important to emphasize my belief that in instances where the Vice President would have to carry out the provisions of the proposed amendment, it is most important that congressional approval serve as a check and symbolize popular participation and for establishment of legitimacy of the actions taken. This country has been blessed to not have the overzealous men we have seen in other nations who usurp the rightful leadership of their governments. However, it is always our desire to protect our Nation and its citizens from any actions which would result in a deterioration of the excellent and fine Government established by the forefathers of the Nation.

It is for this reason that I so strongly recommend that whatever resolution is approved by the committee that it provide for this "check and balance" system we know is important to the proper administration of our Government for the good of all concerned.

Mr. CHELF. Thank you very much, Congressman. We very much appreciate your interest not only in your bill, but in the other bills that have been introduced.

Are there any questions, gentlemen?

Mr. Poff?

Mr. POFF. Do I understand that your bill is identical to House Joint Resolution 1?

Mr. FrOUA. Yes; that is my understanding.

Mr. PoFF. Now, as I understand the fifth section of House Joint Resolution 1, when the President believes that his disability has ceased, he may resume the Presidency upon transmittal to Congress of a written declaration to that effect, and he will resume the Presi