tution itself, as have subsequent amendments, certain commingling of the various branches. The veto power is one area in which the executive attempts to check and sometimes does check the legislative branch. The confirmation power of the Senate is another apparent attempt to commingle and to provide a check. The House of Representatives, as you know, according to the 12th amendment to the Constitution, does, in fact, elect a President of the United States if no candidate gets a majority of the electoral votes. In the impeachment provisions of the Constitution we not only involve the House and the Senate, but in the final determination we bring in as presiding officer the Chief Justice of the Supreme Court. I feel it is necessary to bring Congress into the picture because I don't want the powers which have been given to the President by all of the people to be taken away from him without the representatives of the people having a voice.

Now, Mr. Chairman, I proceeded at greater length than I intended to, in a summary.

Mr. ROGERS. Mr. Chairman.

The CHAIRMAN. Mr. Rogers.

Mr. ROGERS. Do I understand you did discuss the question in section 2 of your proposed constitutional amendment that in the event that the President should name a Vice President and the Congress, that is the House and the Senate, did not confirm that designation; would the Speaker of the House then assume the duties of the President in the event of a vacancy?

Senator BAYH. Yes, sir; Congressman. This would be the case. This is one of the imperfections of this measure. Quite frankly, I can envision the possibility, although I think it is very unlikely, that Congress for some reason or other would not go along with the suggestion or suggestions that the President might send to the Congress and in this case if something would happen to the President while there was a vacancy the present line of succession would be implemented. However, our feeling was

Mr. ROGERS. Go ahead.

Senator BAYH. I just want to emphasize why I think this would be unlikely. Our feeling is that in a time of national tragedy such as a death of a President where the Vice President succeeds, or where the Vice President himself dies-the country is in no mood to tolerate political chicanery in the appointment of a Vice President and I don't think this would be the case.

Mr. ROGERS. You think it is political chicanery, you in your judgment as a Member of the U.S. Senate, should feel a man is not competent to be a Vice President or President? Don't you think it is your duty to vote against him and if you vote against him you call that political chicanery?

Senator BAYH. No. But I think in most

Mr. ROGERS. Well, aren't you at the same time advocating and saying that you as a Member of the U.S. Senate and I as a Member of the House, if we should vote against that, that we are not exercising our best judgment?

Senator BAYH. First of all, Congressman, perhaps the use of the term "political chicanery" was not a good one.

Mr. ROGERS. Well,

Senator BAYH. But there is a possibility of a political power struggle going on and this is one possibility.

Mr. ROGERS. Surely.

Senator BAYH. Under the present circumstances, usually the President would be able to rely on the members of his own party to support his own choice as to who the Vice President should be which would be very similar to our nominating procedures. In the event the opposite party controlled the Congress, then I feel that the effort to play politics with this appointment would be prevented by a strong voicing of public opinion and I think this could be supported by the tradition which finds very limited opposition to the power that the President now has to appoint his Cabinet and many other officers who must be confirmed by the vote of the Senate.

Mr. ROGERS. Under this amendment could the President nominate someone for Vice President who is not 35 years of age?

Senator BAYH. I would think not. I would think, certainly, that just the adding of an amendment to the Constitution does not repeal previous requirements that have been put on this office in the past.

Mr. ROGERS. Well, I just wanted to get the record clear that you have no intention under this amendment.

Senator BAYH. None whatsoever. In fact the 12th amendment setting up new electoral procedure does not carry over all the qualifications of the President in the 12th amendment.

Mr. ROGERS. You would have no objection to being so spelled out in this amendment?

Senator BAYH. No, sir. Well, I ask the committee's consideration of our efforts to keep the amendment as brief as we can. Things like this we tried to put in our report. Perhaps this committee would prefer to lengthen the amendment by adding this safeguard. I, for one, would prefer seeing it in the report and keeping the amendment short.

Mr. ROGERS. You see any political implications that might arise due to the fact we are removing the Speaker of the House of Representatives as a possible successor to the office of President in this amendment?

Senator BAYH. No, sir, I don't.

Mr. ROGERS. You feel Members of the House would go right along and think that their prerogative passing legislation where the Speaker is the one in succession-that that removal meets with their approval and they wouldn't hesitate to approve it on account of that?

Senator BAYH. You, sir, could speak better to this question than I.
Mr. ROGERS. It is a problem that is presented.

The CHAIRMAN. Senator, may I interject? Would you yield?
Mr. ROGERS. Yes, sir.

The CHAIRMAN. As I see it, I don't see how it would interfere with the line of succession. The line of succession only comes into being when both the President and Vice President are no longer with us. Then you start the line of succession beginning with the Speaker of the House. Under this proposal it doesn't provide it doesn't take care of a contingency when both are no longer with us. That is taken care of by the line of succession statute.

Senator BAYH. That is correct.

Mr. ROGERS. Apparently, I didn't make myself clear. In the first instance an order for the President to nominate a Vice President and have him confirmed-now that as I indicated-suppose he is not confirmed by Congress. The succession would be if we follow the law now, in the event of the death of the President the Speaker of the House of Representatives would become President of the United States.

Senator BAYH. That would be the law, sir, after the ratification by the Congress and the legislatures of this amendment. It would not change that law.

Mr. ROGERS. It wouldn't change that law and, therefore, that is what I wanted to make sure, that is what your intent was, the succession we have spelled out so far would remain the law. But you do admit that it does permit the President to pick anybody as long as he is 35 years of age and I assume American born as required by the Constitution and name him as Vice President under this section 2.

Senator BAYH. Provided the majority of Congress will go along. Mr. ROGERS. But if the majority did not go along and a vacancy did then occur, then the Speaker of the House would become President. Senator BAYH. That is correct, if the Congress failed to confirm a Vice President.

Mr. ROGERS. Well, I just wanted to get that clear.

Senator BAYH. May I insert one thought here at this time?

We are trying to recognize in this measure the development of the office of Vice President and the need to have an able-bodied, working, capable, articulate, intelligent Vice President at all times. The Vice President can be a great asset to the President. The line of succession after a double death would not be changed.

Mr. ROGERS. We change the line of succession by the virtue of the statute.

Senator BAYH. That is correct.

Mr. ROGERS. Not the Constitution, but the point that I'm getting at is that we have the statute now and apparently would not change it. Now, let's go to section 3.

Mr. TENZER. Mr. Chairman, will the gentleman yield?

The CHAIRMAN. Just a moment.

me.

Senator, I think there is a bit of faulty reasoning here, if you permit The line of succession act only applies, as I said before, when both the President and the Vice President is no longer with us. If, perchance, we pass this constitutional amendment and the Vice President is not with us, dies, resigns, or what have you, and the President appoints a successor and the House and the Senate does not confirm it, it does not follow that the Speaker becomes Vice President. It onlythe Speaker only advances when both the President and Vice President are gone.

Senator BAYH. I didn't understand Congressman Rogers' question. I thought he meant on the death of the President.

Mr. ROGERS. I never

Senator BAYH. I didn't think that was the question.

Mr. ROGERS. Mr. Chairman, I didn't have that in mind. The only thing is I was, as you and I know, we have had this question of presidential inability discussed from the time that President Eisenhower had his heart attack in 1955 and we conducted many hearings over

here in connection with it and one of the difficulties was that you couldn't get an agreement of who is going to act in certain instances and if they did act, in what capacity were they permitted to act and, therefore, if this is to be presented, I think that we should spell these things out so there would be no question of what your intention is and what would be the intentions of the members of this committee if this is to be adopted. That's the reason I am asking the question, because you can readily appreciate that if a vacancy does occur in the Presidency and the Senate and the House does not confirm the President's nominee, then, in the event of a vacancy, who is to take over? And your answer is that we keep the statute of a line of succession that we now have it would be the Speaker of the House of Representatives and you don't feel that that presents any political problem in removing the Speaker as a possible successor to the Presidency, that they will go along, Members of the House will-whatever prerogative they may have thought they gained by the passage of that piece of legislation they will willingly surrender it for this constitutional amendment.

Now, that is your thought as I understand it.
Senator BAYH. That is my thought; yes, sir.

Mr. ASHMORE. Will the gentleman yield for one observation?

Mr. ROGERS. Yes.

Mr. ASHMORE. Did your committee consider the situation that might arise in the case where the President should nominate or name the Speaker of the House as Vice President? Then the Congress refused to confirm the Speaker of the House.

Where are you then?

Senator BAYH. You would probably be in a rather unlikely situation.

Mr. ASHMORE. Speaker of the House would take over anyway wouldn't he?

Senator BAYH. On the death of the President. You see, the Speaker doesn't get in the picture unless we have two deaths. This would be the case if the nominee for Vice President was not confirmed by the Congress and the President died.

Mr. TENZER. Mr. Chairman, would the gentleman yield?

Mr. ASHMORE. Well, does your bill provide if the Congress should refuse to confirm the person the President has named, then would the President be authorized to submit another name?

Senator BAYH. Yes, sir; and another, and another, and another. There is no limit on the number of names the President could submit to the Congress. I think if we didn't pass on the first name, it would be logical for a second name to be submitted.

For any legislation to work, gentlemen, I think we have to assume we are dealing with reasonable men. They would give reasonable consideration to the name submitted by the President. If Congress didn't approve, another name would be submitted.

Mr. TENZER. Would the gentleman yield?

Mr. ASHMORE. I yield.

Mr. WHITENER. I would like to ask the Senator if it is the feeling of his subcommittee that a constitutional amendment is necessary to accomplish this purpose.

Senator BAYH. Yes, sir; we feel a constitutional amendment is necessary.

Mr. WHITENER. Now, article II, clause 5, section 1 says that in case of the removal of the President from office or of his death, resignation, or inability to discharge the powers and the duties of 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.

Senator BAYH. As the Congressman undoubtedly knows there has been a considerable amount of debate over whether a constitutional amendment was in fact needed because of the very wording he just read to the committee. Because there is sufficient debate, some doubt, we felt it would be safer-to be absolutely safe to put a matter like this in the bedrock law of the Constitution so there cannot be a court test at some moment of crisis as to the constitutionality of this provision.

Mr. WHITENER. I gather from the question these gentlemen ask that the amendment you now propose also raises question so it doesn't seem likely we are going to eliminate legal questions.

Senator BAYH. But we would eliminate constitutional questions if it is the Constitution, would we not?

Mr. WHITENER. It seems to me this language is abundantly clear. The only thing that I can see that you make clear in this that is not clear in the present Constitution is that you take away from the Congress the right to move without the intercession of the President in making this determination. Under this proposed amendment, the Congress, it seems to me, will have to sit here and wait until the President makes a move whereas without this amendment and going under the present language of the Constitution, the Congress on its own motion makes this decision.

Senator BAYH. Well, the Congress, of course, has not made its own motion and there is a considerable amount of division of opinion as to whether it does have the constitutional authority to do so in this particular case in the case of disability. There seems to be almost unanimous agreement that Congress does not have the power to appoint a new Vice President, which is the second part of this amendment. This would require without a doubt a constitutional amendment.

Mr. WHITENER. I think that's clear that the present language does not apply to the Vice-Presidency, but if this situation arises that we are talking about, the dual death-the Vice President and the President, we have-we either have the constitutional authority to do what you would propose to do in this amendment to the Constitution or we didn't have the authority to do what was done when we put the Speaker in the third position. Isn't that correct?

Senator BAYH. In the case of the Speaker, we are dealing with the death of both officers and the Speaker does take over as President. Mr. WHITENER. Or inability.

Senator BAYH. The problem of inability is different because we hope this is a temporary divestiture of the powers and duties of the office. If we go back to the Tyler precedent and apply it to disability, then we see that when the President is ill and the Vice President as