was published by this committee in 1957. While that study and the subsequent hearings did not result in a definite legislative proposal, I am convinced that it laid a sound groundwork for the future congressional activities which have taken place in this field.

As a result also of the activities of the press and public and professional groups, the public has been educated to the seriousness of this question.

There can be no doubt in anybody's mind that this Nation cannot permit the Office of the President to be vacant even for a moment. Our position of world leadership demands that we avoid the terrible crisis which would result if a vacancy existed in the Office of the President for even a short time. The President stands for the sovereignty and the unity of the American people. He leads the national administration; he is the Commander-in-Chief of all the Armed Forces, and in this nuclear age his finger rests upon the trigger. He is the sculptor and the administrator of our foreign policy. One would have to be blind not to see and acknowledge the dangers and the risks we are faced with at this very moment lacking a constitutional procedure for the smooth transition of a successor to the office or to the powers and duties of the President. Fate has been most kind to Americans but we should not continue to tempt it.

I am mindful, of course, that this problem is a difficult one. During the course of the hearings held before this committee in 1956, a leading authority from the office of the President testified as follows:

Every constitutional system must pay some price in weakness for the elements of strength it has. Not everything is soluble. Not everything can be controlled by law. Some things, as a matter of course, have to be lived with in the full knowledge that they embrace built-in risks of the gravest sort. Some things which are in need of solution, must be entrusted to the discretion of duly elected officials-whose constitutional morality must be taken on faith. For though it is true enough on doctrinal grounds, that our aim is to have a government of laws and not of men, experience supports Edmund Burke's observation, that "the laws reach but a very little. Constitute the government however you will, infinitely the greater part of it must depend on the uprightness and wisdom of the chief ministers of state."

This committee, with praiseworthy objectivity, is now at grips with a patent weakness in our constitutional system; namely, the uncertainty about the way a Vice President can succeed to the place of a disabled President without laying himself open to the charge of usurpation. Before anything else is said on this head, one must first decide which of two alternatives contain the greater or lesser risk to constitutional government.

The mere lack of the perfect solution to this problem should not be a deterrent to action by this committee. I sincerely hope that the action will be expeditious and I am sure that the House Committee on the Judiciary will meet its responsibility.

The CHAIRMAN. I recognize the gentleman from Ohio, Mr. William McCulloch.

STATEMENT OF CONGRESSMAN WILLIAM M. McCULLOCH

Mr. McCULLOCH. Mr. Chairman, I had intended to make, at this point, a lengthy statement on the matter before us, but in view of the urgency of the new Attorney General being elsewhere today and the urgency of Senator Bavh being elsewhere, I shall read only one page of the statement and submit the rest for the record.

Mr. Chairman, in commencing these hearings on "Presidential Inability and Succession," I am of the opinion that the Judiciary Committee is considering one of the most important and challenging issues of our time. With our country's global responsibilities, with existing world turmoil and upheaval, and with pressing domestic problems, the United States must at all times have the benefit of capable, dynamic, and certain leadership.

There was a day, perhaps in the history of the United States when Presidential inability or the existence of a vacancy in the office of Vice President was not so alarming. President Garfield in 1881 lay wounded 80 days; President Wilson was, in part, incapacitated for a substantial part of his second term of office.

In the time of the space age, however, that day has gone forever. The Constitution of the United States provides in detail the procedure for removing a President from office, but, aside from indicating that Congress shall provide for the succession to the Presidency, there is no specification as to how the disability of a President shall be determined.

There is, therefore, a pressing necessity for Congress to act upon this matter with all deliberate speed. In urging action, however, I wish to offer a word of caution. We are about to propose an amendment to the Constitution of the United States. Contrary to other nations, and many States, such undertaking has never been and should not be done without careful deliberation. Frankly, while recognizing the need for prompt action, I am somewhat disturbed by the speed with which an amendment is being proposed. Undue haste could lead to oversight, imperfection, and regret.

As an aside, Mr. Chairman, even the administration proposal which had lengthy hearings in the Senate last year was amended by the full Judiciary Committee of the Senate last week.

I am well aware of the wide support given to the administration's proposal introduced in the House by the distinguished chairman of the Judiciary Committee and, in the Senate, by Mr. Bayh. But, in spite of the proposal I have introduced and in spite of the wide support given the administration's proposed amendment, I hope that the Judiciary Committee will give full consideration to alternative proposals and to efforts to perfect as good an amendment as possible. Mr. Chairman, in the interest of saving time, I offer the rest of my statement for the record.

The CHAIRMAN. It will be received in the record.

(Further statement of Congressman William M. McCulloch :)

The proposed amendment which I introduced provides that the President may, in his own behalf, issue a declaration announcing his inability. If he should fail to make such declaration, or in the case where he is too ill to do so, the Vice President may issue such a declaration if he has the concurrence of a majority of the Cabinet, or some other body provided by law of Congress. In such a case, the Vice President would become Acting President for the period of the inability.

My proposed amendment also provides that after the President has, through whatever means, been found to suffer an inability, the President may resume the powers and duties of his office by issuing a declaration that his inability has terminated.

If it is believed, however, that the President's inability continues, the amendment provides that the Vice President, with the concurrence of a majority of the Cabinet, or such other body as designated by Congress, shall within 2 days declare in writing that such inability continues.

Up to this point, my proposed amendment is identical to the administration's proposal. At this point, however, I have made a major change.

Whereas, the administration's proposal only provides that Congress shall immediately act upon the Vice President's declaration, I propose that it must act within 10 days of the President's declaration of termination of inability, which would be at least 8 days after the Vice President's declaration of the President's continuing inability.

In both proposals, the President shall be refused the right to resume office only if the Congress, by a two-thirds vote, determines that the President's inability continues. I am of the opinion, however, that a definite time limit should be placed upon the right of Congress to determine the issue.

For, right or wrong, we are providing a means for taking away the President's office. The burden should thereby be placed upon the Vice President and, indirectly, the Congress to have the issue decided without unnecessary delay. I am not wedded to a particular time period, but I am of the opinion that a definite time period should be established.

In our history, we have had instances where a President was faced with a hostile Congress. Such hostility should not be permitted to indefinitely keep a President from his rightful office. In our history, we have also had instances where the President and the Vice President were not on friendly terms. If such a case were to exist again, we could permit an occasion to exist where a Vice President could prevent the President's resumption of office by failing to reconvene an adjourned Congress.

Under my proposal, Congress would have to face the issue within a specified period of time. If it were adjourned, the Vice President must recall it. If procedural delays or filibusters were attempted in the House or Senate, the Vice President would need to generate two-thirds support in Congress to break the logjam which, by the way, is no greater support than the two-thirds vote he would have to obtain to uphold his declaration of the President's continuing disability. If these hurdles were not overcome, the President would automatically resume his office, which is how it should be. I might also point out that my proposal will permit Congress to avoid taking sides when in doubt about the President's or the Vice President's declaration. By refusing to take action within the prescribed time, the President would thereby receive the benefit of the doubt and automatically resume office.

Turning to the other basic problem of maintaining effective Executive leadership, my proposed amendment and that proposed by the administration provides that, when a vacancy occurs in the Office of the Vice President, the President shall appoint a Vice President who shall be confirmed by Congress.

Today, far more than in earlier times, the Vice President has an active part in leadership of the Nation. He participates in Cabinet meetings. He has been designated a statutory member of the Na

tional Security Council. He is Chairman of the President's Committee on Equal Employment Opportunity. He has been designated as the coordinator of civil rights enforcement in the executive branch of Government. He is Chairman of the National Aeronautics and Space Council. He is frequently designated as the President's representative in foreign and domestic matters. He is assigned to important troubleshooting tasks. And, perhaps most important of all, he is but one heartbeat away from becoming President. The importance of the office of the Vice President means, then, that the country must always have a Vice President who is well informed and well schooled in the important issues that face the Nation.

This completes the summary of the provisions in my proposed amendment and its comparison to the administration's proposal. By providing for the case of Presidential inability and succession, we will undoubtedly be correcting the most important shortcomings in the fundamental law of the land.

Yet, without unduly prolonging my statement or exhausting the committee's patience, I would like to list a number of questions and issues which I believe the committee should consider if it is to fully explore this subject matter.

First, a number of questions arise as to the method of approach and completeness of the administration's proposal.

1. Would it be more desirable to enact an amendment giving Congress the general authority to pass legislation on this subject matter-thereby not locking in a single approach?

2. Should the President be given the authority to nominate a new Vice President?

3. Should the Vice President be given the right (or the burden) to declare the President's initial or continuing inability?

4. Should the President be given the right to select the body to pass upon his inability?

5. Under the doctrine of separation of powers, should Congress be given the right to prevent the President's resumption of office?

Secondly, a number of situations may arise which will not be covered by the administration's proposed amendment:

1. The simultaneous disability of the President and Vice President.

2. The disability of the President when there is no Vice President.

3. The death of the President-elect, or both the President-elect and Vice-President-elect, during the period between election day and the meeting of the electoral college; between the meeting of the electoral college and Congress counting of the electoral votes; and between the counting of the electoral votes and inauguration.

I recognize that all of these issues and questions cannot or, at least, should not be settled through the adoption of a single constitutional amendment.

As a matter of fact, I believe some of them can be better handled through an amendment relating to a change in the electoral college system.

I do believe, however, that detailed and scholarly consideration must be given to as many of these issues and questions as possible, during these hearings, so that the Judiciary Committee may send to the House the best considered proposal to amend the Constitution that our capabilities permit.

The CHAIRMAN. The first speaker this morning is the distinguished Senator, Hon. Birch E. Bayh, of Indiana, a dedicated legislator who has labored long to get a provision in the Constitution concerning Presidential inability, to form an amendment and Senator, we give you a warm welcome here this morning. We are glad to hear from First, Senator, I would like to have the record show the various proposals we have some 38 bills, and also the message of the Presi-dent.

you.

(Message from the President of the United States:)

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES TRANS-MITTING A DRAFT OF PROPOSED LEGISLATION ENTITLED, “A JOINT RESOLUTION PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES RELATING TO THE ELECTION OF THE PRESIDENT AND VICE PRESIDENT"

To the Congress of the United States:

In 1787, Benjamin Franklin remarked near the conclusion of the Constitutional Convention at Philadelphia, "It *** astonishes me, Sir, to find this system approaching so near to perfection as it does ***.'

One hundred and seventy-eight years later the relevance of that Constitution of 1789 to our society of 1965 is remarkable. Yet it is truly astonishing that, over this span, we have neither perfected the provisions for orderly continuity in the executive direction of our system nor, as yet, paid the price our con-tinuing inaction so clearly invites and so recklessly risks.

I refer, of course, to three conspicuous and long-recognized defects in the Constitution relating to the office of the Presidency :

1. The lack of a constitutional provision assuring the orderly discharge of the powers and duties of the President-Commander in Chief in the event of the disability or incapacity of the incumbent.

2. The lack of a constitutional provision assuring continuity in the office of the Vice President, an office which itself is provided within our system for the primary purpose of assuring continuity.

3. The lack of a constitutional provision assuring that the votes of electors in the electoral college shall without question reflect the expressed will of the people in the actual election of their President and Vice President.

Over the years, as I have noted, we have escaped the mischief these obvious omissions invite and permit. Our escape has been more the result of providence than of any prudence on our part. For it is not necessary to conjure the nightmare of nuclear holocaust or other national catastrophe to identify these omissions as chasms of chaos into which normal human frailties might plunge us at any time.

On at least two occasions in our history, and perhaps others, American Presidents-James Garfield and Woodrow Wilson-have for prolonged periods been rendered incapable of discharging their Presidential duties. On 16 occasions in our 36 administrations, the office of Vice President has been vacant-and over the two perilous decades since the end of the Second World War, that vital office has been vacant the equivalent of 1 year out of 4. Finally, over recent years, complex but concerted campaigns have been openly undertakenfortunately without success, as yet to subvert the electoral college so that it would register not the will of the people of individual States but, rather, the wishes of the electors themselves.

The potential of paralysis implicit in these conditions constitutes an indefensible folly for our responsible society in these times. Commonsense impels, duty requires us to act—and to act now, without further delay.