sumes the powers and duties of the office, he is not Acting President. He is the President. And as Henry Clay said a long time ago, it is impossible to separate these two offices. Mr. WHITENER. The Constitution, to read it a different way, says "Congress may by law provide for the inability both of the President and Vice President declaring what officer shall then act as President." Well, may I ask you one other little question? I notice in your amendment Senator BAYH. Before you proceed, may I say I don't think my personal opinion as to whether we need a constitutional amendment or not is as important as the fact that my distinguished friend from North Carolina and I put ourselves in this debate. This is just a small part of the debate that has gone on in the past. We have proposed a constitutional amendment on these points just to be safe so there will be no doubt about it. I think this is just being safe by putting it in the Constitution. Mr. WHITENER. If the gentleman would yield to one further question. I notice that you used section 4, the language: A majority of the principal officers of the executive departments. Now, as I remember it, that's used only one other-or at one time in the present Constitution. Now, in your prepared statement which I glanced at, you and our chairman in his statement just seemed to assume that that meant members of the President's Cabinet. Now, what legal authority do you have for saying that the words "a majority of the principal officers of the executive departments" means members of the President's Cabinet? Senator BAYH. This has been the general interpretation put on this language. Mr. WHITENER. By whom? Senator BAYH. As it has been used in the past. I feel this is a legitimate question, and we made our intent abundantly clear in our report. Mr. WHITENER. Now, let's take the Department of Defense. We have the Department of Defense. Within that Department we have the Department of the Navy, the Department of the Air Force, the Department of the Army. Would the principal officers of the Department of the Navy be one of these people? Senator BAYн. I would say not. Mr. WHITENER. Why? Senator BAYH. Because in the reorganization of the Armed Forces, the Department of Defense superseded the other three Departments and they became subordinate thereto and these other three officers do not sit in the President's Cabinet. The logical interpretation is that the heads of the executive departments are the principal officers of the executive departments. This is the Cabinet. Mr. WHITENER. It seems to me the Navy Department is an executive department and that the principal officer of that Department is the Secretary of the Navy. Senator BAYH. I suppose it's important we make it clear we are talking about the Cabinet. I think this is the interpretation that has been put on it. Mr. WHITENER. If the gentleman would excuse me, why did you not say the members of the President's Cabinet? Senator BAYH. The terminology has never been used in the Constitution. The term "executive departments" has, and in the report we define this as the Cabinet, making this interpretation very clear. Mr. WHITENER. Of course, when that was used in the original Constitution they didn't contemplate several departments we now have. I think that putting it into the report would not obviate the hazard any more than language that has been put in many reports to which courts have paid no attention to in the past. Senator BAYH. If my recollection serves me correctly-and you are probably more aware of this than I-isn't this the same language used in the succession statute? Mr. WHITENER. I don't think so. It may be in the statutes. Mr. WHITENER. There again, I think you are in a different legal field when you have a court-interpreted statute as regards a courtinterpreted constitution. Mr. ROGERS. In the statute of succession you don't have to have an interpretation by the Chief Executives as to whether the Speaker should take over in the event of a vacancy, vacancy in the Presidency; do you? So it would have no application to the response to what the gentleman has said. But may I back up and inquire about your section 3. You say if the President declares in writing he is unable to discharge the powers and duties of the office, such powers and duties shall be discharged by the President as Acting President. Well, now Senator BAYн. By the Vice President. Mr. ROGERS. What are you going to do, sir, as they claimed at the time of Woodrow Wilson when he had a stroke and many people claimed he didn't have the capacity, mental capacity with which to sign a letter. Now, if someone should show up with a letter presumably signed by him would that give to the President or Vice President the authority to assume the office under this amendment? Senator BAYH. Well, first of all, this is one reason we changed the wording in the proposal. You can no longer show up with a letter. It has to be written, a written declaration which has been transmitted to the President of the Senate and Speaker of the House, and certainly so Mr. ROGERS. That isn't what I construe section 3 to mean. It says if the President declares in writing he is unable to discharge the powers and duties of his office such powers and duties shall be discharged by the President as Acting President. Now, my question is, suppose the Vice President runs down 16thor Pennsylvania Avenue and says, "I got a letter from the President. He says he is not able to perform these duties. Therefore I am acting as President." Now, is there anybody in a position to stop him from acting? Senator BAYH. First of all, I want to repeat once again. Apparently, I did not make it clear. The committee was sufficiently concerned about the Vice President coming up with a letter in his pocket or finding it in his dresser drawer or something, that we changed the wording of the section to which the Congressman referred to read that a letter from the President must be transmitted in the normal course of business as all Executive messages are transmitted to the presiding officers of both Houses. Is that sufficient? Mr. ROGERS. That is, if the there was transmitted from the President of the United States to the Speaker of the House of Representatives and to the President of the Senate a letter from the President then that would be that's the amendment that you have offered on the Senate side? Senator BAYH. Yes, sir, that is correct. Mr. DONAHUE. Would the gentleman yield? Mr. DONAHUE. Let us assume the President becomes mentally incompetent. If the President declares in writing that he is unable to discharge his duties, if he is mentally incompetent, what value should that writing have? Senator BAYH. Well, if he is mentally incompetent, whether the value of the writing was in question or not, I think it would be incumbent upon the Vice President and Cabinet under section 4 to assume the powers and the duties of the office as if there was no writing by the President. The problem of mental disability to which you referred and Mr. Rogers referred is a tough one. Its problem, really, is much like the Wilson problem, in which the facts are difficult to nail down. The President is surrounded by his official family, and his wife and his doctor certainly have a tremendous influence on him. It seems to me that section 5 would be implemented and Congress would have to make a determination of this once and for all. Mr. DONOHUE. Senator, may I ask you this? Isn't the whole problem we are confronted with, one of what shall be done when the President shall become physically or mentally incompetent to carry out the duties of the office? Senator BAYH. Yes, sir, that is. That is. Mr. DONAHUE. In other words, the present statute relating to the succession is perfectly sound. Senator BAYH. It has nothing to do with the problem we are discussing here today. Mr. DONAHUE. That is right. So what we should try to resolve is what shall be done when the President becomes physically or mentally incompetent. It all boils down to that, doesn't it? Senator BAYH. Yes, sir, that's what we are trying to do. The CHAIRMAN. Would the gentleman from Colorado yield to the gentleman from New York, Mr. Tenzer? Mr. TENZER. We are now talking about sections 3 and 4 but I was addressing my inquiry to the Senator. Under section 2 would it not be clear that if the President made a nomination for Vice President and if both Houses of Congress did not approve, then the President would make another nomination before the Speaker of House would succeed? Senator BAYH. Yes, sir. Mr. TENZER. Wouldn't that be one? Senator BAYH. Of course, the Speaker of the House does not succeed at all, unless there is a double death. Mr. TENZER. That is both President and Vice President. Senator BAYH. Yes. Yes. Mr. TENZER. That is what I want to make perfectly clear. Another nomination would have to be made. Mr. DONOHUE. They would have to die simultaneously in a catastrophe? Mr. TENZER. Yes. The CHAIRMAN. Would the gentleman from Colorado yield? When the gentleman from North Carolina, Mr. Whitener, spoke that the statute may be sufficient, I would like to draw the committee's attention to a statement made by former Attorney General Brownell when he appeared before this committee on April 1, 1957, on this subject. He said as follows: The number of respected constitutional authorities have argued that there can be no temporary devolution of presidential power on the Vice President during periods of presidential inability and whatever we may think of that argument I think that a statute would not protect the Nation adequately for the doubts that have been raised have been raised too persistently. As long as there is doubt, lingering doubt, concerning the constitutionality of the statute, as long as there is a question concerning the disabled President's constitutional stature after his recovery, I do not believe any inability as a practical matter, however severe it may be would be recognized lest recognition in that disability would oust the disabled President from office. Moreover if the presidential inability was severe and prolonged, to note the devolution of presidential power on the Vice President would create somewhat of a crisis itself. Therefore, he came to the unalterable conclusion a constitutional amendment would be necessary. Senator BAYH. I think the words of the new Attorney General will be particularly interesting in this area also. The CHAIRMAN. Go ahead. Mr. ROGERS. Senator, turning to section 4, as amended, it says, "Whenever the Vice President, and a majority of the principal officers of the executive departments"-let's stop there. Who do you envision as being principal officers of the executive department? Senator BAYH. The President's Cabinet. Mr. ROGERS. And when you use it in that term you only intend to have the President's Cabinet? Senator BAYH. That is correct, sir. Mr. ROGERS. And none other? Senator BAYH. Yes, sir. Mr. ROGERS. If in the future we should create an office of Cabinet of Humanities as an example or of Natural Resources and so forth, each one of those would be a member of the Cabinet who would be in a position to act. In other words Senator BAYH. That is correct. Mr. ROGERS. If, any Cabinet officer created under the act of Congress would be in a position to act. Senator BAYH. That is correct. Yes, sir. Mr. ROGERS. You and I recognize that these positions are at the pleasure of the President and subject to confirmation of the Houseor the Senate. Now, do you suppose that a majority of the officers should arrive at a conclusion that the President is unable to perform the duties of his office and he learns of it, and he immediately discharges all of them, accepts their resignations-then where are we in your constitutional amendment if he says you no longer are a member of the Cabinet hence you cannot say that I can't perform the duties of the office. What would happen in that case? Senator BAYH. This is one of the contingencies for which it is very difficult to find a positive solution. If I may go one step further and expand your question. Mr. ROGERS. Yes. Senator BAYH. To take another very similar possibility, suppose the President doesn't find out about it-or suppose he is unconscious and the Vice President with the consent of the majority of the Cabinet does take over. Then suppose the vote was 7 to 3, and the Vice President as Acting President promptly proceeded to fire the three who voted against him Mr. ROGERS. Sure Senator BAYH. On the other side, we don't want to put a Vice President in a situation as Acting President where someone dies on the Cabinet and he doesn't have the authority to replace him. Mr. ROGERS. No, but here the point is this: that the man selected for the Cabinet position, the men selected for the Cabinet positions are those the President has trust and he expects honor from them. He's not now likely to look with favor to them if they pass a resolution saying you are no longer competent. They are turning on the man who made their position possible. Do you think that that is the proper body to make this determination? Senator BAYH. Yes, I do, sir, for the reason that I feel that the body that works the closest with the President, that is most familiar with his capability, should have the opportunity to make this determination with the Vice President who, I think, has the inescapable constitutional responsibility of participating. The CHAIRMAN. Isn't there a safeguard because you say, "or such other body as Congress may by law provide.' Mr. ROGERS. Now, that, Mr. Chairman. That's true. The CHAIRMAN. That body could be the body of physicians, the Supreme Court or what have you. That is the safety valve, isn't it? Senator BAYH. Yes, sir, and that's Mr. ROGERS. Would the gentleman yield? Senator BAYH. That is the very reason this was put into the language. We don't know what the future is going to reveal to us. We might find the Cabinet is unworkable. We want the Congress, without going through the whole constitutional amendment procedure, to be able to set up another body if, in its wisdom, it thinks it is necessary. Mr. RODINO. Senator, I don't want to seem to be facetious. Let's consider this possibility since we are going to take into consideration situations to occur and sometimes those most unlikely to occur. What provision do we make here, or is there any provision intended to be made if after the assumption of the Vice President to the powers and duties as Acting President that the then Acting President becomes disabled? Senator BAYH. We have not provided for this contingency. |