of his office. The Vice President shall not participate in the proceedings of the Senate during such special session.

(3) If the Senate determines, by a vote of two-thirds of the Senators present and voting (providing a quorum is present), that the President is unable to discharge the powers and duties of his office, the Senate shall, by a resolution adopted by the same two-thirds vote required to make such determination, direct the Vice President to act as President during the period of inability of the President, or until the end of the then current Presidential term, as may be provided by such resolution.

(4) Any determination made by the Senate under paragraph (3) may be revoked, and the inability of the President which was the basis of such determination may be declared to have terminated, in the same manner as in the case of the original determination, except that the Senate shall be convened in a special session for such purpose by the Chief Justice of the United States upon receipt by him of a resolution requesting such special session adopted by a vote of the majority of the Members of either House of the Congress present and voting (providing a quorum is present).

(5) If the Senate revokes any determination made by it under paragraph (3), the Senate shall, by a resolution adopted by a vote of two-thirds of the Senators present and voting (providing a quorum is present), declare that the President is restored to the assumption of the powers and duties of the office of President effective at such time as may be provided by such resolution.

SEC. 3. (a) The provisions of section 2 shall be applicable with respect to determining whether the Vice President, or any other individual acting as President, is unable to discharge the powers and duties of the office of President, and, in any such case, the resolution referred to in paragraph (3) shall direct the individual next in line of succession to the Presidency to act as President during the period of inability of the Vice President or such other individual, or until the end of the then current Presidential term, as may be provided by such resolution.

(b) The provisions of section 2 shall also be applicable with respect to revoking any determination that the Vice President is unable to discharge the powers and duties of the office of President and restoring him to the assumption of the powers and duties of the office of President. The provisions of section 2 shall also be applicable with respect to revoking any determination that any other individual acting as President is unable to discharge the powers and duties of the office of President and, subject to section 19 (d) of title 3, United States Code, shall be applicable with respect to restoring such individual to the assumption of the powers and duties of the office of President.

[H.R. 3792, 89th Cong., 1st sess.]

A BILL To provide for the case of inability of the President or Vice President or interim

successor

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the determination of whether the President, or any individual acting as President, has an inability to discharge the powers and duties of President shall be made as provided by this Act.

SEC. 2. (a) If the President shall by message to Congress announce that he has an inability to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President.

(b) If the President does not so announce but the Vice President or person next in line of succession to the President is satisfied that the President or person then Acting President has such an inability, he shall give written notification thereof to the Chairman and members of the Commission provided for by section 3 of this Act. Upon receipt of such written notification of Presidential inability or upon its own motion whenever a majority of its membership shall be of the opinion that there exists such Presidential inability, the Commission shall forthwith convene and determine whether in its opinion the President or Acting President has an inability to discharge the powers and duties of the said office. Notice and opportunity to be heard shall be given to the President. If the Commission so determines, the Chairman shall forthwith give written notice of its determination to the Speaker of the House of Representatives and to the President pro tempore of the Senate with a copy of such written notification to the Vice President or person next in line of succession to the Presidency.

Upon receipt of this written notice the Vice President or person next in line of succession to the Presidency shall forthwith proceed to discharge the powers and duties of the office of the President pending final determination of the question of inability as provided herein.

SEC. 3. (a) There is hereby established a commission to be known as the Presidential Inability Commission, hereinafter referred to as the "Commission". The Commission shall be composed of the following members: (1) The Chief Justice of the United States, who shall act as Chairman. The Chairman shall have no vote in the proceedings of the Commission except in the case of a tie. (2) The leader of the House of Representatives of the political party having the greatest number of Members of the House of Representatives. (3) The leader of the House of Representatives of the political party having the second greatest number of Members of the House of Representatives. (4) The leader in the Senate of the political party having the greatest number of Members of the Senate. (5) The leader of the Senate of the political party having the second greatest number of Members of the Senate. (6) The Surgeon General of the United States.

(b) Four members of the Commission shall constitute a quorum and a concurrence in writing by at least four members shall be required for any determination made by the Commission.

(c) Members of the Commission shall serve as such without compensation; but they shall be reimbursed for travel, subsistence, and necessary expenses incurred by them in the performance of their duties.

(d) The Chairman shall convene the Commission without delay upon receipt by him of a written notification from the Vice President or person next in line of succession to the Presidency provided by section 2(b) or upon receipt by him of a communication in writing from two members thereof stating that they have sufficient cause to believe that the President has an inability to discharge the powers and duties of the office of the President.

SEC. 4. (1) Upon receipt of written notification from the Commission of Presidential inability pursuant to section 2(b) of this Act, the House of Representatives, if then in session and if not at such time as it shall convene, shall proceed forthwith by resolution adopted by a vote of the majority of the Members of the House of Representatives present and voting (providing a quorum is present), to request the Senate to take appropriate action to determine whether the President has an inability to discharge the powers and duties of his office. A copy of such resolution shall, upon its adoption, be forwarded immediately to the Chief Justice of the United States and to the Senate. If the House shall fail to request the Senate as aforesaid, the Clerk of the House shall immediately thereafter give written notification ic the person acting as President of such fact and such person shall forthwith cease to discharge the powers and duties of the President.

(2) Upon receipt of the copy of such resolution the Senate shall forthwith proceed to finally determine whether the President has such inability to discharge the powers and duties of his office. The Chief Justice of the United States shall preside over the Senate throughout its deliberations and the Vice President shall not participate therein. Notice and opportunity to be heard shall be given to the President.

(3) If the Senate determines, by a vote of two-thirds of the Senate present and voting (providing a quorum is present), that the President or the person acting as President has such inability to discharge the powers and duties of his office, the Senate shall, by a resolution adopted by the same two-thirds vote required to make such determination, direct the Vice President or person next in line of succession to the Presidency to act as President during the period of inability of the President or Acting President, or until the end of the then current Presidential term. If the Senate shall fail to so determine the existence of Presidential inability, the Secretary of the Senate shall immediately give written notification to the person acting as President of such fact and such person shall forthwith cease to discharge the powers and duties of the President.

(4) Any determination made by the Senate under the preceding paragraph may be revoked and the inability of the President or the person acting as President which was the basis of such determination may be declared to have terminated by the Senate as in the case and manner of the original determination. And in such event the Senate shall by a resolution adopted by a vote of two-thirds of the Senate present and voting (providing a quorum is present) declare that the President is restored to the powers and duties of the office of the President effective at such time as may be provided by such resolution.

The CHAIRMAN. I will hear you now, Senator.

STATEMENT OF HON. BIRCH E. BAYH, A U.S. SENATOR FROM THE STATE OF INDIANA

Senator BAYH. Mr. Chairman, may I first ask the chairman of the committee if I may have permission to have Mr. Conrad, chief counsel of our Subcommittee on Constitutional Amendments seated at the witness table. Second, I would be more than happy to yield the honor you have given me as first witness to the Attorney General. Is that in accordance with the wishes of the chairman? I only want to make this as expeditious as possible and whatever the chairman decides certainly will be in accordance with my wishes.

The CHAIRMAN. Mr. Attorney General, do you want to embrace that invitation of the Senator?

Mr. KATZENBACH. No, Mr. Chairman, I think Senator Bayh has been burdened by this for a long time and I would be happy to have him go first.

Mr. PoFF. We are going to have the services of the Attorney General. He is going to be here to testify. If we don't complete it this morning, we will want him back.

The CHAIRMAN. Proceed, sir.

Senator BAYH. Mr. Chairman, I have a statement which, in light of the very pertinent statements of both the distinguished chairman and ranking minority member of the committee I feel would be best inserted in the record at this point. I would be happy to just summarize the statement rather than read it.

The CHAIRMAN. Be glad to have it received in the record, sir.
(The prepared statement of Senator Birch Bayh is as follows:)

TESTIMONY BY SENATOR BIRCH BAYH

Mr. Chairman, and members of the committee, I am Birch Bayh, U.S. Senator from Indiana. I am grateful for this opportunity to appear before you and testify in behalf of House Joint Resolution 1, introduced by the distinguished chairman of this committee, relating to the problems of Presidential inability and filling vacancies in the office of Vice President.

I was privileged to sponsor in the Senate this year a resolution identical to one which I had sponsored in the 88th Congress and which passed the Senate by a vote of 65 to 0.

Last year, the Senate Subcommittee on Constitutional Amendments, of which I have the honor to be chairman, conducted extensive hearings on 13 resolutions dealing with Presidential inability and filling vacancies in the office of Vice President. This year, the Senate subcommittee conducted 1 full day of hearings and heard testimony from several distinguished witnesses, including the Honorable Nicholas Katzenbach, President Johnson's nominee for Attorney General of the United States.

The Subcommittee on Constitutional Amendments reported favorably on Senate Joint Resolution 1 which, at that time, was identical to House Joint Resolution 1 now before this committee. The full Senate Committee on the Judiciary subsequently reported the proposal to the Senate with no substantive changes but with several alterations in language.

It is to the resolution now pending before the Senate that I would like to address myself and to commend its present form to this committee for its earnest consideration.

Mr. Chairman, at this time I request that Senate Joint Resolution 1, as altered by the Senate Committee on the Judiciary, be printed as a part of my remarks. Section 1 of the resolution simply puts into the Constitution a practice which has been traditional in the United States since 1841. In that year, with the death of President William Henry Harrison, Vice President John Tyler established the so-called Tyler precedent by insisting that he was the President and not merely Acting President. This complete transfer of Presidential preroga

tives to the Vice President upon the death of an incumbent President has been accepted ever since. Yet, it has never failed to be questioned by some Americans. Even after the tragic events of November 22, 1963, when Vice President Johnson ascended to the Presidency, a suit was filed challenging Mr. Johnson's rightful claim to the Presidency. All that is done by section 1 of Senate Joint Resolution 1 and House Joint Resolution 1 is to remove forever the last shred of doubt that "in case of the removal of the President from office or his death or resignation, the Vice President shall become President."

Section 2 of the proposal provides that "whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both House of Congress." This section is based upon a broad consensus that this Nation must never for long be without a Vice President. The office of Vice President, once scorned even by those who held it, has become the second most exalted position in American Government-and rightfully so. Today, the Vice President is not a Throttlebottom whom no one recognizes, few have heard of, and who has so little to do that he must spend the major share of his time feeding pigeons in the park. The Vice President today has a number of statutory and ad hoc duties which are of signal importance. Only recently the President named his Vice President to head the President's Council on Equal Opportunity, a group which will coordinate the Government's extensive agency and departmental work in the field of civil rights. The Vice President participates in all Cabinet meetings. He is a statutory member of the National Security Council which only last Sunday night made a grave and far-reaching decision concerning the role of the United States in Vietnam. The Vice President is the Chairman of the National Aeronautics and Space Council which coordinates this Nation's exploration of the vast and little-known sea of space. Perhaps most importantly, though, is the very real fact that at any moment, the Vice President is the man who may assume the awesome and lonely burdens of the Presidency itself.

It has been the singular good fortune of this Nation that in its history, a President and a Vice President have not been lost within the same 4-year term of office. That such an eventuality is possible has been brought home to us several times in our history. But perhaps the most tragic example of man's absolute mortality was the sudden, shocking, and almost unbelievable loss of our 35th President in the very vigorous prime of his life and work. The Nation continued. however, as it always has and as it always must. The purpose of section 2 of this proposed constitutional amendment is to provide a means whereby this Nation shall have executive continuity. The best way to accomplish this, I strongly believe, is to provide that the office of Vice President of the United States never be left unoccupied for very long.

Having a Vice President for all but perhaps a relatively few days also would provide a ready means by which we can have executive continuity even if the President of the United States were disabled temporarily or permanently.

Section 3 of Senate Joint Resolution 1 provides that "whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, such powers and duties shall be discharged by the Vice President as Acting President."

Here, then, we provide a means by which a President can voluntarily divest himself of his powers and duties if he is temporarily disabled-or. indeed, if he knows that he soon will become temporarily disabled. The President may, for example, be about to undergo surgery and the domestic and world situation at that time may demand no interruption-even for a day or two-of Executive leadership. It is possible that President Eisenhower would have availed himself of this proviso had it been in force and effect during any of the three illnesses he experienced as President.

Section 4 provides a means whereby the Vice President and a majority of the principal officers of the executive departments-that is, the Cabinet-may declare that the President is unable to discharge the powers and duties of his office. This is intended to provide for the contingency that the nature of the President's disability precludes him from declaring his own inability. Upon the written transmission of this declaration from the Vice President and a majority of the Cabinet to the Speaker and the President of the Senate, the Vice President would immediately assume the powers and duties of the office of President as Acting President.

Although we consider as highly unlikely the possibility of a dispute between the Vice President and Cabinet on one hand and the President on the other as to the Chief Executive's ability to discharge the powers and duties of his office, we nonetheless strongly believe that we must provide for such a contingency in the Constitution.

Section 5 of Senate Joint Resolution 1 provides the machinery to deal with such a contingency. First, and most importantly, it establishes the formula by which a President shall resume the powers and duties of his office following his temporary displacement.

Secondly, it permits the Vice President and majority of the Cabinet a 2-day period in which they may challenge the President's declaration that no inability exists. The language of the section would permit the Vice President to divest himself of the powers and duties of the Presidency immediately. But if a serious question existed as to the President's ability to resume his powers and duties, the Vice President-if he has the support of a majority of the Cabinet-could retain the powers and duties for 2 days following the President's declaration.

If within those 2 days, the Vice President and majority of the Cabinet challenged the President's declaration, Congress would "immediately proceed to decide the issue." This, we believe, is a clear constitutional mandate for Congress to drop everything else or, if it were not then in session, to immediately reassemble to consider this issue. The words "immediately proceed to decide the issue" were drawn so as to allow Congress time to consider the facts before voting.

Section 5 then provides that "if the Congress determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of the office, the Vice President shall continue to discharge the same as Acting President; otherwise the President shall resume the powers and duties of his office."

The language clearly implies, we believe, that the Vice President shall continue to act as President while the dispute is bcing settled by the Congress. Note that if the Vice President achieves a two-thirds vote in both Houses, he continues to discharge the powers and duties of the Presidency. He does not resume the powers and duties-he continues to exercise them.

Several questions have been raised on the portions of Senate Joint Resolution 1 and House Joint Resolution 1 relating to inability. I shall attempt to answer them briefly.

First, some believe that because we are dealing with executive continuity, we should in no instance bring the Congress into the picture. To do this, it has been said, would breach the traditional separation of powers. I would point out, Mr. Chairman, that there is ample precedent involving a reasonable commingling of the three branches of Government. The first and most obvious is the authority granted to the Chief Executive to veto bills passed by both Houses of Congress. If there were absolute separation, the President would have no such authority. Conversely, many Presidential appointments and all treaties entered into by the President must receive the advice and consent of the Senate before they become effective. In certain prescribed circumstances, the House of Representatives is empowered with the great responsibility of electing a President of the United States. In the procedures established to impeach and convict a President of the United States, we see the commingling of the executive, legislative, and judicial branches of Government. Finally, the Vice President himself has certain duties in both the executive and legislative branches of Government. In Senate Joint Resolution 1 and House Joint Resolution 1, the Congress becomes involved after a decision has been made in the executive branch-and only then when that decision is challenged within the executive branch. Omitting Congress as an arbiter of this issue would open the door to the possibility of a coup, a possibility both foreign and offensive to our form of government.

Another question has been raised as to whether additional language is required in section 3 of the amendment to enable a President to immediately resume his powers after he has voluntarily given them up. We maintain that such language would be superfluous and perhaps even harmful. Suppose, if you will, that such language were added. A President voluntarily divests himself of his powers and duties. Then, when he believes he is fit, he immediately resumes them. Then, pursuant to section 4 of the proposal, the Vice President and majority of the Cabinet declare the President really isn't fit at all. The Vice President immediately resumes the powers and duties of the Presidency. Then, under section 5. the President again declares no inability exists. The Vice President and Cabinet,