under section 5, challenge the President's declaration again. Then Congress decides in favor of the President, who immediately resumes the powers and duties again. Here, in the space of a few days, the Nation would have the powers and duties of the Presidency change hands three times. The turmoil this would create is almost unimaginable. As now written, Senate Joint Resolution 1 and House Joint Resolution 1 would keep the transfer of these awesome powers and duties to an irreducible minimum, thereby enabling as smooth a transition of executive power as possible in difficult circumstances.

Others have argued that a time limit should be placed upon the Congress to decide a dispute in the executive branch over the President's inability. The purpose of this argument is to avoid the possibility of the Congress prolonging a determination of the President's fitness and thus keep the Vice President acting as President for as long as possible-theoretically against the best interests of the Nation. The Senate Committee on the Judiciary, as I indicated earlier, was more concerned that the Congress have a reasonable time in which to decide this crucial issue. It was the consensus that the obedience to and implementa tion of any law depends ultimately upon the good will of the vast majority of our governmental leaders at all levels.

Somewhere along the line, in our form of government, trust must be placed in men to obey and implement the letter and spirit of the law. The language of this amendment makes it abundantly clear that the purpose and intent of section 5 is for Congress to decide the issue as quickly as possible. If we attempt to place a time limit upon the Congress, we are then saying that 20, 50 or 100 years from now, in any situation that we can imagine and some that we cannot, the Congress should be able to determine this crucial question of presidential inability within 10 days, or 20 days, or 30 days. If we make a time limitation too brief, then Congress may not have time to view the facts and reach a just decision. If we make the limitation too long, we may imply the Congress should take as much time as allowed before deciding the issue. In my opinion, we must keep the language of the Constitution general enough to be flexible in situations we are unable at this point in history to foresee.

Mr. Chairman and members of the committee, for too many years the debate over providing for presidential inability and filling vacancies in the office of Vice President has been waged on the academic level. Few believed that anything ever would be accomplished to fill an obvious and glaring constitutional void. Now we are in a position to see on the horizon the fruition of years of work by many in this vital area.

I would be remiss if, at this point, I did not single out for praise the distinguished chairman of this committee, its ranking minority member and leaders of the American Bar Association, whose efforts in this area have been persistent, articulate, and effective.

In this era, when whole armies can be moved half-way around the world in a matter of hours and when civilization as we know it can be destroyed in a matter of minutes, we must never be without a firm hand on the tiller-a hand belonging to a man mentally and physically capable of making the decisions affecting the destiny of the free world.

History has been trying to tell us something, Mr. Chairman. It is time we listened.

Senator BAYH. I would also like to ask the chairman's permission to include in the record at this point a copy of Senate Joint Resolution 1, as reported by the Senate Committee on the Judiciary, February 4, 1965.

The CHAIRMAN. You have that permission.

(Text of S.J. Res. 1:)

TEXT OF SENATE JOINT RESOLUTION 1 AS REPORTED BY SENATE COMMITTEE ON THE JUDICIARY ON FEBRUARY 4, 1965

SECTION 1. In case of the removal of the President from office or his death or resignation, the Vice President shall become President.

SEC. 2. 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 Houses of Congress.

SEC. 3. 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.

SEC. 4. Whenever the Vice President, and a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmits to the President of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

SEC. 5. Whenever the President transmits to the President of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President, with the written concurrence of a majority of the principal officers of the executive departments or such other body as Congress may by law provide, transmits within two days to the Congress his written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall immediately proceed to decide the issue. 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.

Senator BAYH. As you know, your present witness considers it an honor to have the opportunity to cosponsor a bill the distinguished ehairman of this committee has introduced in the House.

Let me very quickly summarize the process of development which led us to Senate Joint Resolution 1 and House Joint Resolution 1. Last year a similar measure was introduced into the Senate and passed the Senate 65 to 0 under the title of Senate Joint Resolution 139. I certainly want to voice hearty agreement with the statement of Mr. McCulloch that the Constitution should not be amended in any hit-ormiss fashion. In fact, it has been our effort to try to prevent this from happening. As the chairman knows, Senate Joint Resolution 139 was a result of a broad consensus reached after long study and extensive consultations with leading political scientists, constitutional scholars, State legislators, journalists, and leaders of the American Bar Association.

The CHAIRMAN. Sir, may I interrupt you there? I neglected to call on Congressman Andrew Jacobs, Jr., of Indiana, one of our new members. Mr. Jacobs here? Forgive me for not calling on you before.

STATEMENT OF HON. ANDREW JACOBS, JR., OF INDIANA

Mr. JACOBS. I am sorry to interrupt the junior Senator from Indiana but I wanted to read and I thank you for this opportunity you grant your most junior member to comment on Senator Bayh's testimony.

I want to join the numerous organizations and individuals who have commended Senator Bayh for the judicious dispatch with which he has conducted the hearings in this vital legislation in this session of Congress and to add such accomplishments would not have been possible, of course, without the vital work Senator Bayh performed in the 88th Congress. The American Bar Association, among others, wisely has recognized the urgency and necessity of Senator Bayh's proposals. They would correct the situation that has resulted in the office of Vice President being vacant 16 times for a total of 37 years in this Nation's history.

I am pleased and proud to add my endorsement guided by the splendid work my fellow Hoosier, the distinguished Senator from Indiana, Birch E. Bayh.

Senator BAYH. Thank you, Congressman Jacobs. I think the committee already knows the great esteem I have for the junior member of your committee, Mr. Chairman. You will be as proud of him in a few short months as we are in Indiana.

I want to reemphasize what was said by both the chairman and the ranking minority member that there is no perfect solution to this rather complicated and vexing problem with which we have been dealing for a number of years. Our efforts have been directed at finding the best proposal possible. Each has been willing to give and take a little bit on his idea in the true legislative process to come up with the best solution we could find-one which would certainly be better than none at all. I feel extensive hearings, study, the effort for a consensus, the support of the American Bar Association House of Delegates, the brief hearings which we held this year, plus the extensive scrutiny which our cominittee has given it-not to mention the extensive scrutiny that this committee will give these proposals-will guarantee that we don't find a hit-and-miss solution to the double-barreled problem with which we are dealing this morning.

The subcommittee of which I am a representative before the committee passed out Senate Joint Resolution 1 unaltered, but as pointed out by Mr. McCulloch, the full Senate Committee on the Judiciary held 2 days of executive sessions in which we very closely scrutinized this measure and did make some changes. The changes, I feel, make the bill a better bill. I will say very quickly that I do not believe that any of the changes deal with the substance of the resolution, but rather to language perfections which will make the meaning and the intentions easier to perceive. Quickly, let me run through the bill section by section since I'm certain all of you are very familiar with its provisions.

Then I will hit on one or two of the specific questions we discussed in the committee so that your committee may have the thinking of our committee in making your decision. I don't mean to imply you necessarily are going to accept the thinking of our committee, but I did want you to have the benefit of it in your deliberations.

Section 1 of Joint Resolution 1, of course, deals with the Tyler precedent. I think that really the Tyler precedent makes it almost superfluous to include section 1 which makes clear that when the President dies, the Vice President becomes President and not Acting President. However, even after the tragic events of November in Dallas we find that an American citizen thought there was sufficient doubt to file in the courts a suit contesting the right of the President to assume the office as President. I think we can clarify this longstanding doubt in one simple sentence.

Section 2 permits us to have a Vice President at all times. Whether the President dies and the Vice President succeeds him as has happened eight times, or if the Vice President dies, which has happened seven times or if a Vice President resigns, which has happened once, we propose the office be filled by the President nominating a successor and the majority of both Houses of Congress confirming this nomina

tion.

The CHAIRMAN. You care to answer questions as you go along or you want us to wait?

Senator BAYH. It would be fine.

The CHAIRMAN. You say by a majority vote of both Houses of Congress; would that mean a joint session or separate action by each House?

Senator BAYH. We suggest that this would be separate action by both Houses. There seems to be ample precedent whenever the wording is used in the bill that it does mean separate sessions of each branch of the Legislature.

Mr. POFF. May I inquire? Would the witness prefer that question be postponed until he has concluded his statement?

Senator BAYH. Perhaps it would give us more continuity if I quickly finished my five-section summary and then submitted to questions. I have no objection; whatever the committee wants.

Mr. POFF. That is entirely acceptable to me, Mr. Chairman.

Senator BAYH. Fine.

I might say one word about the thinking of the committee in this section 2 because we had a rather extensive debate on whether we should change the language in the bill that the chairman and I have cosponsored in which we say by confirmation of both Houses, to read the advice and consent of both Houses.

Senator Ervin, who is a rather distinguished constitutional scholar, was very strong in his feeling-very persuasive I felt-that the constitutional precedent of advice and consent which gives the Senate the power to advise and consent under certain circumstances, also enables presidential nominees to function in office in the absence of any advice and consent of the Senate. It is our feeling that certainly the Members of the Congress would not want the Vice President to assume the powers and duties of the office of Vice President in the absence of some advice and consent so that he might in fact through a tragic set of circumstances be the President before any of us in Congress would have any voice in this matter whatsoever. So we felt the word "confirmation" in this case was better than the use of the words "advise and consent" because of the implications that might be involved by past precedent.

Section 3 deals with the disability problem in which the President may divest himself of the powers and duties of his office voluntarily, in the event he feels he is unable to perform properly these powers and duties. In this case, the Vice President would assume the powers and duties as the Acting President during the tenure of the disability.

Section 4 permits the Vice President and the majority of the Cabinet to make the decision that the President is unable to perform the powers and the duties of the office in the absence of a Presidential statement to this effect. We also provide for the unforeseen contingency that the Cabinet may not prove to be the best body to determine presidential inability in conjunction with the Vice President. So we would allow Congress might provide by law for another such body to participate in the decision. This approach would enable flexibility without requiring another constitutional amendment.

Section 5 deals with the remote possibility that the President, on one hand, would say he is able; and the Vice President and the

44-261-65

2

majority of the Cabinet saying, "Mr. President, you may be able to walk and talk, but those of us who know you best can tell the best interest of the country is that the Vice President should continue to perform these functions, and that you are not recovered."

In this case we feel, to put it very quickly, the issue should be put to Congress. Both Houses of Congress, acting by two-thirds vote more than required in the impeachment provisions-would be required to support the contention of the Vice President and Cabinet majority. Now let me hit on two or three questions, if I may, gentlemen, before yielding to your questions.

One of the problems that has been discussed not only by our committee but at some length in the news media is the problem of time limitation. How quickly should Congress act? The distinguished ranking minority member of this committee has suggested there should be a 10-day time limitation. There have been other time limitations suggested. Some of the news media have suggested the use of the word "immediately" is too vague. It would let Congress become embroiled in long debate stretching out over months, they say, and consequently we should tie the hands of Congress and should limit them.

I must say the feeling of my colleagues in the committee was quite the contrary. They felt that the use of the word "immediately" could well be too restrictive. The use of the word "immediately" might even imply a decision without any debate whatsoever, without the opportunity to call on medical witnesses, without the opportunity to consult with the members of the Cabinet and the Vice President who had made this important decision. For this reason, we finally decided to amend the paragraph so that it reads, "Congress shall immediately proceed to decide the issue," feeling that the words "proceed to" would more clearly imply that the process of determination could include calling witnesses and the like. Nevertheless, the word "immediately" means forthwith, quickly, and with the greatest of dispatch. Now this committee, in its judgment, can determine whether this gives too much leeway or not.

For the purpose of assuring proper and public notice of inability declarations, we made provisions for the President to provide a written declaration of inability under section 3 to the Speaker of the House and the President of the Senate. It was the feeling of the committeeand our report so states-that transmittal to the offices of the presiding officers of each House shall be sufficient constructive notice for the transferral of power, and that the time lapse involved in transmitting this notice from 1600 Pennsylvania Avenue to Capitol Hill is sufficiently short that it would not be something to concern ourselves with and would guarantee public notice for the entire country. One other question I will touch on is the strong feeling on the part of some that we are violating the traditional separation of powers by permitting the Congress to get into the act, not only in choosing a Vice President but particularly in the area of the final determination as to whether the President is able or unable to perform the powers and duties of his office.

I would like to point out I am a strong adherent to the separation of powers doctrine. I would like to also point out that our forefathers have found it expedient and wise to include in the body of the Consti