As to the second change concerning filling a vacancy in the Vice-Presidency, the committee agrees that this is desirable and endorses it fully. At a time such as the present, it is highly desirable to fill immediately the vacancy left when a Vice President dies or steps into the Presidency. The second highest office in the land should not be left vacant for any extended period of time.

In the opinion of the committee it is essential that there be a clearly defined procedure and line of succession in the case of the incapacity of a President. The committee also believes that a constitutional amendment is necessary in this regard so that the validity of the procedure may not be called in question at a time of crisis. The United States has been fortunate in the past, but in the present day of instant communication and constant tension we cannot afford a situation in which we would be without a Chief Executive. The committee urges that this matter be resolved with all due speed. The Committee on Law Reform therefore, as an acceptable alternative, supports the plan recommended by the American Bar Association. It is assumed that any ambiguity in the proposal will be corrected in its ultimate implementation, and the form of such implementation will make abundantly clear that the Vice President becomes President in case of death, or resignation of the President.

The committee, therefore, recommends the adoption by the chamber of the following resolutions:

"Resolved, That the New York Chamber of Commerce recommends that the present provisions of the Constitution of the United States relating to the death, resignation, and removal, or inability of a President, be amended to provide:

"(1) that the Vice President, in case of the inability of the President, shall succeed to the powers and duties of the office of the President, but not to the office itself;

"(2) that any determination of the commencement and termination of such presidential inability shall be as the Congress, by law, shall provide;

“(3) when a vacancy occurs in the office of the Vice President the President shall nominate a person who, upon approval by a majority of the elected Members of Congress meeting in joint session, shall then become Vice President for the unexpired term.

"Further resolved, That the New York Chamber of Commerce recommends that as an alternative to the above proposal the Constitution of the United States be amended to effect in principle the proposals of the American Bar Association; and

"Further resolved, That interim legislation of the nature recommended by the American Bar Association in 1962 be enacted pending adoption of the proposed constitutional changes."

Respectfully submitted,

Attest:

Churchill Rodgers, Chairman, C. Jay Parkinson, H. I. Romnes, H. B. Farr, Jr., Orison S. Marden, Arthur B. Langlie, Thomas C. Lawrence, Wilkie Bushby, Harold J. Gallagher, Whitney North Seymour, Committee on Law Reform; New York Chamber of Commerce, George Champion, President.

JOHN T. GWYNNE, Secretary. (The above report was adopted by the chamber at its regular meeting on April 16, 1964.)

THE PROBLEM OF PRESIDENTIAL INABILITY

New York Chamber of Commerce, New York, N.Y.

In at least one respect the Constitution of the United States is inadequate in that it does not clearly provide for the orderly transfer of the powers of the President in the event of the inability of a President to exercise the responsibilities of his office.

This problem has been the subject of concern on several occasions in our country's history. It was brought to the fore in 1881 because of the disability of President Garfield. It was the subject of discussion, and hearings, in 1919 and 1920 as a result of the illness of President Wilson.

More recently, the illnesses of President Eisenhower focused attention on the possibility that a President may become incapacitated for some length of time, and that there was no clear and specific procedure in the Constitution, or in law,

for the determination of presidential inability, or for the temporary assumption of the presidential powers and duties by the Vice President, or for determining when a President's inability had ended.

During the past several years a number of resolutions have been introduced in the Congress aimed at establishing a procedure for the orderly transfers of presidential power in the event of his inability. Congressional committees have studied the problem, and public hearings have been held.

To this date, however, there have been no concrete results. Perhaps this can best be explained as a reflection of the reluctance of Congress to pursue the matter during the term of a President, and in the absence of a specific crisis demanding action.

Yet the issue remains, and it becomes increasingly serious because of the growing importance of the Presidency and also, perhaps, because of the greater hazards to which a President is now exposed.

It is quite imperative that the United States have a clearly defined pattern of succession to the powers of the President so that, in the event of the inability of a President, this Nation is not without duly elected leadership. We should avoid the possibility of having to decide important constitutional issues at the time of some future crisis. This is an opportune time for the Congress, and the people, to resolve the question.

THE BASIC PROBLEM

The present constitutional provisions relating to succession to the Presidency are found in section 1 of article II which states:

"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, and the Congress may by law provide for the Case of Removal, Death, Resignation or 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 shall be elected."

The basic questions which the Constitution leaves unanswered are these:

1. Who, or what body, is to decide that a President is unable to discharge the powers and duties of his office?

2. What is the proper procedure for declaring that a President's inability has been terminated?

3. Does the Vice President assume the office of the Presidency in the event of presidential inability; or does he become Acting President, assuming only the powers and duties of the office?

4. Does the problem of succession in the case of disability require constitutional amendment, or can it be resolved by legislation?

PRESIDENT EISENHOWER'S PROGRAM

Following his serious illness, and in the absence of a formal, legal procedure for the devolution of presidential power, President Eisenhower announced that, in the event of his permanent disability, he would resign as President, and the Vice President would then assume the powers and duties of the office.

To cover other instances of possible temporary inability, the President and the Vice President concluded a memorandum of understanding in March 1958, which provided that, in the event of his inability, the President would, if possible, so inform the Vice President and he, in turn, would serve as Acting President until the inability had ended. If however, the disability was such as to preclude the communication of the fact of inability by the President, the Vice President himself, after such consultation as seemed to him appropriate under the circumstances, would decide upon the devolution of the powers and duties, and he would serve as Acting President. In either case the President would determine when the inability had ended, and when he would assume the full exercise of the powers and duties of his office.

This memorandum of understanding was intended to apply only to the terms of office of President Eisenhower and Vice President Nixon. The President directed the Attorney General to study the problem further, and to recommend a permanent solution.

THE PROPOSAL OF THE ATTORNEY GENERAL

In this report to the President, which the President approved and transmitted to the Congress, the Attorney General recommended amendment of the Constitution to provide

1. That, in case of the removal, the death, or the resignation of the President, the Vice President shall become President for the remainder of the term.

2. That, when a President declares in writing that he is unable to perform the duties of his office, those duties shall be assumed for the period of the disability by the Vice President, who shall have the title of Acting President. 3. That, if a President does not make such a declaration, and the Vice President is satisfied as to the disability of the President, the Vice President, with the approval in writing of a majority of the Cabinet, will become Acting President.

4. That the Vice President step out of the office, and the President takes over, when the President declares in writing that he is able to resume his duties.

This administration program, as well as other proposals which had been offered, failed of enactment in the Congress. Principal points in dispute were whether a constitutional amendment was required, or whether the issue could be resolved by legislation; and over the determination of which individual or body should have the final power to determine if a President were disabled and unable to perform his duties, and, conversely, when, after disability, a President is again able to assume his office.

ACTIONS OF THE BAR ASSOCIATIONS

Expressing great concern that there is a defect in the Constitution relating to presidential succession, particularly in these times when a possible presidential inability might result in profoundly serious consequences, the Committee on Federal Legislation of the Association of the Bar of the City of New York, the Committee on the Federal Constitution of the New York State Bar Association, and the Committee on Jurisprudence and Law Reform of the American Bar Association have all undertaken studies of the problem and have published reports in which similar conclusions are preesnted.

The associations have all recommended that article II of the Constitution be amended to provide—

1. In case of the inability of the President, that the Vice President should succeed only to the powers and duties of the office, and not to the Presidency itself; and

2. That the commencement and termination of any inability should be determined by such method as Congress shall by law provide.

These recommendations seek to remove the constitutional ambiguity presently existing as to the status of the Vice President; and to provide that the procedures for determining the commencement and termination of inability shall be established by legislation, thus retaining the broad character and flexibility of the Constitution.

The committee of the State bar association endorsed as "second best" the proposed constitutional amendment, Senate Joint Resolution 40, which would specify in detail the procedures for determining inability, or termination of inability. The city bar association similarly endorsed the procedures outlined in this measure, but it believes that these should be spelled out in a statutory enactment. The bar association presented a proposed bill which would, by legislation, provide a method for determining the commencement and termination of presidential inability.

In essence, the method suggested provides that, if the President is unable to declare in writing that he is disabled, and the Vice President is satisfied that the President is unable to discharge the powers and duties of his office, he shall, with the written approval of a majority of the heads of the executive departments, assume the powers and duties of the office as Acting President.

Subsequently, the President would be able to resume his office if he makes a public announcement in writing that his inability has terminated. However, if the Vice President is not satisfied that the President's disability has terminated, he may, with the written approval of a majority of the heads of the executive departments, transmit this declaration to the Congress which shall then make the determination. If by concurrent resolution, approved by two-thirds of the Members present in each House, the Congress upholds the Vice President, he shall then continue to serve as Acting President until he proclaims the President's inability to be ended; or the Congress, by concurrent resolution, determines that the President's inability has ended; or the President's term ends.

RECOMMENDATION OF THE COMMITTEE ON LAW REFORM

The office of the President is unquestionably the most important office in the United States, and, perhaps, in the world today. This has been increasingly apparent in recent years, particularly in the area of foreign policy where the President, in his person and in his actions, has assumed such critical and public importance.

In the opinion of the committee on law reform, it is essential that the United States have a clearly defined pattern of succession to the office of President so that, in the event of the inability of the President to perform his duties, this Nation will not be without duly elected leadership. This will require clarification of now vague consitutional provisions.

The recommendation of the committee is designed explicitly to provide that the Vice President, in the case of presidential inability, becomes Acting President, assuming only the powers and duties of the Presidency. He does not succeed to the office of President, in which case the devolution of the office would be permanent for the remainder of the term. The recommendation would clearly define in the Constitution the status of the Vice President and would guarantee that there will be no question concerning the resumption of power by the President at the termination of his inability. The present language of the Constitution leaves grave doubts on this matter.

The committee on law reform believes that it is desirable that these constitutional questions be resolved at the earliest possible date. The committee suggests, moreover, that this is a most appropriate moment for the Congress to initiate such a resolution by way of a proposed constitutional amendment, inasmuch as a new administration is about to take office.

The committee therefore recommends the following:
Now, therefore, be it

Resolved, That the New York Chamber of Commerce recommends that the present provisions of the Constitution of the United States relating to the death, resignation, removal or inability of the President, be amended to provide (1) that the Vice President, in case of the inability of the President, shall succeed to the powers and duties of the office of the President, but not to the office itself; and (2) that the determination, commencement and termination of such presidential inability be by such method as the Congress, by law, shall provide. Respectfully submitted.

Attest:

JOHN T. GWYNNE, Secretary

NEW YORK, N.Y., December 14, 1960.

COMMITTEE ON LAW REFORM,
RALPH T. REED, President.

The above report was adopted by the chamber at its regular meeting on January 11, 1961.

STATEMENT BY HON. JEFFREY COHELAN, OF CALIFORNIA, IN SUPPORT OF A CONSTITUTIONAL AMENDMENT REGARDING PRESIDENTIAL DISABILITY AND SUCCESSION

Mr. Chairman, the problems of presidential succession and presidential disability have long needed constitutional clarification and I appreciate this opportunity to testify in support of the constitutional amendment which I have joined you in sponsoring.

The facts themselves speak persuasively to the need for soundly based but immediate action.

Eight of our thirty-five President have died in office. On 16 different occasions, totaling more than 38 years in the brief history of our country, we have been without a Vice President. Eight Vice Presidents succeeded to the Presidency, while seven died during their terms of office, and one resigned.

Of the four Presidents who served the United States from 1932 through November 1963, two (Franklin D. Roosevelt and John F. Kennedy) did not live out their terms; one (Dwight D. Eisenhower) suffered a serious heart attack; and one (Harry S. Truman) was the object of an attempted assassination.

In past years the office of Vice President has been subject to more ridicule than respect. But such is not the case today. The Vice President is not only the everpossible successor to the Nation's highest office, he has become a highly important ambassador, traveling thousands of miles on behalf of the President. He is a member of the Cabinet and of the National Security Council. He is Chairman

of the National Aeronautics and Space Council, and he has major responsibilities in our wars on poverty and discrimination.

There is ample evidence that the United States needs a Vice President at all times; that this person must be fully acquainted with both foreign and domestic policy and prepared to assume the Presidency on a moment's notice. Yet there is no provision in our Constitution for filling this office when there is a vacancy. The problem of presidential disability poses potentially greater and more difficult problems.

On two occasions, either as a result of tragic accident or illness, we have had Presidents unable to carry out their duties for prolonged periods of time.

President Garfield lingered between life and death for 80 days after he was shot by a disgruntled officeholder. During this period he performed only one official act-the signing of an extradition paper. There was a crisis in foreign affairs, but only routine business was transacted.

President Wilson's serious illness of nearly 2 years presented the country with even more serious problems. Following his stroke in 1919, some 28 bills became law without his signature. The Cabinet met unofficially from time to time on the call of Secretary of State Lansing, but when President Wilson learned of the meetings he forced Lansing to resign, believing that Lansing was plotting to oust him.

In both of these cases of disability, the Vice Presidents were urged to act as President. But both Arthur and Marshall declined fearing they would deprive the President of his office should he recover.

Without clear authority, provided by law, it cannot be expected that future Vice Presidents will act differently if a President is disabled, yet clearly the leader of the free world must have a healthy, sure and steady hand at the helm of state.

On at least two other occasions, we have had Presidents unable to carry out the full duties of their office for shorter periods of time. President McKinley

lived for 8 days after he was shot, during which time the business of government came to a standstill. President Eisenhower's heart attack hospitalized him for 6 weeks, during the first week of which he was able to make few if any decisions.

It is a strange irony indeed that we are prepared and amply so, for a President's death or impeachment, but that we are defenseless against his injury, illness, or senility. The events of the last two decades alone, however, show us all too clearly how quickly disability can strike.

Mr. Chairman, this constitutional amendment which I have joined in sponsoring is both practical and effective. It recognizes that total protection against all conceivable situations is not possible but it guards against the most serious and striking omissions of our present system. It establishes a firm framework, grounded as it should be in the Constitution, but it leaves certain final decisions which must be based on the facts of the time to the elected representative of the people.

My bill also provides, Mr. Chairman, for a return to the Presidential Succession Act of 1886 whereby in the horrible possibility that both the President and Vice President should be disabled or killed, succession to Acting President would be from the Cabinet, beginning with the Secretary of State.

This is in no way a reflection against the present distinguished Speaker of the House. It is rather a recognition of certain critical problems.

Would the Speaker resign his position to act as President if the President were temporarily disabled? Could he then return as Speaker?

Couldn't the Speaker be of an opposing political party? What effect would this have on the continuity of an administration's policy? After all, during 8 of the last 18 years the House of Representatives has been controlled by the party opposing that of the President. Succession could thus result in changed party control of the entire executive branch.

Does the Speaker have the constitutional authority to assist the President as the Vice President does? Can the Speaker properly prepare for the awesome responsibilities of the Presidency while fulfilling his own major responsibilities as Speaker of the House of Representatives?

I earnestly hope, Mr. Chairman, that your committee will act favorably on returning the line of succession to the Cabinet where it resided for 61 years. I also hope you will act favorably on President Johnson's thoroughly merited proposal for reform of the electoral college.