of the Constitutional Convention indicating that the Vice-Presidency was originally created to provide for an alternate Chief Executive who might function from time to time should the President be unable to exercise the powers and duties of his office. When this provision was stated in so many words and was submitted to the Committee of Style, it was revised and reduced to the simplified statement that we have now: "In the case of removal, death, resignation, or inability to discharge the powers and duties of the office, the same shall devolve upon the Vice President," and that is the way it has remained ever

since.

What this really means is that we are talking about an Executive decision rather than a congressional or a court decision in the first instance. This interpretation, in fact, has been shared by several Attorneys General in the past. Before the Senate subcommittee, Attorney General William Rogers said that in his opinion the Constitution invested in the Vice President initial determination as to the existence of an inability with respect to the President.

The same view was expressed earlier by Attorney General Herbert Brownell, who incidentally was the first governmental officer to draft and submit to the Congress legislation along these lines; indeed, the Bayh-Cellar proposal is an almost exact restatement of the original Brownell proposal made to the Congress, the 85th Congress, I believe, on the occasion or shortly after the occasion of President Eisenhower's illness.

Attorney General Brownell at that time summed up what has been the legal opinion of all of his predecessors in this area in modern history. He said as follows:

At the time of President Garfield's illness in 1881, the great weight of opinion favored the interpretation that Vice President Arthur, and he alone, could determine if the President was disabled. At that time most students of the Constitution said that the Vice President was obligated to exercise the powers of the Presidency during Garfield's illness, just as much as he was obligated to preside over the Senate or perform any other constitutional duty, and that no enabling action by the courts or Congress or the Cabinet was necessary.

Since the Vice President had the duty of acting as President, it was argued, in certain contingencies his official discretion extends to the determination of whether such a continuency actually existed; in other words, they were applying a well-known rule that in contingent grants of power, the one to whom the power is granted is to decide when the emergency has arisen.

Thus, there is solid basis in law here to argue that the initial decision must be made by the person who is to succeed in power. In this instance it would be the Vice President. This power to so act is very great. Therefore, it must be guarded.

The bill that I have resubmitted in the 89th Congress, as I have in the 86th, 87th, and 88th Congresses, is No. 139.

Members will see that it is very close to what is known here as the Bayh-Celler bill because, in fact, it is the predecessor of that bill. To sum it up: Section 1 empowers the Vice President to succeed to the Presidency in case the Chief Executive dies or resigns or is removed, and so forth; that is a restatement of old law.

Section 2 provides that if the President shall declare in writing 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.

If the President is unwilling or unable to declare his own inability, section 3 authorizes the Vice President to do it; however, he needs the concurrence this is again repetition of what the other bill has-of the majority members of the Cabinet. In other words, sole discretion is removed from the Vice President in this area.

Section 4 provides that if and when the President declares in wrting that his disability is terminated, he should resume powers and so forth; and here again we have a parallel to what we have in the other bill. In this case, however, where the Vice President holds a contrary view, the Congress resolves the issue by a two-thirds vote in each House.

Now the final point that I would wish to make is that in section 4 of the bill. In case members don't have it, I will read the pertinent sentence out of it.

Whenever the President makes public announcement in writing that his inability has terminated, he shall resume the discharge of the powers and duties of his office on the seventh day after making such announcement. But if the Vice President, with the written approval of a majority of the heads of executive departments in office at the time of such announcement, transmits to the Congress his written declaration that in his opinion the President's inability has not terminated, the Congress shall thereupon consider the issue. If the Congress is not then in session, it shall assemble in special sesion on the call of the Vice President.

If the Congress determines by concurrent resolution, adopted with the approval of two-thirds of the Members present in each House, that the inability of the President has not terminated, thereupon, notwithstanding any further announcement by the President, the Vice President shall assume the discharge of such powers and duties as Acting President until the occurrence of the earliest of the following events: (1) the Acting President proclaims that the President's inability has ended

In other words, the person who has the power to make the initial decision has the power to make a second decision.

This is the innovation that I would hope Members would be careful about and listen to:

The Congress determines by concurrent resolution, adopted with the approval of a majority of the Members present in each House, that the President's inability has ended, or (3) the President's term ends.

The importance of that second paragraph is very large, because here is a reservation of power by the Congress itself, by a simple majority vote, to take the initiative in making the decision that the inability has ended, thereby putting itself in between the Vice President and the President, if that should be necessary.

I think this safeguard is one that we might want to think about very carefully, and when the Attorney General is here, I would hope to examine him on this to see whether or not he would agree that this suggestion is one that might be a helpful one to resolve some of the problems that we have on this.

Mr. POFF. Will you yield?

Mr. LINDSAY. Yes.

Mr. POFF. Did I understand correctly from your reading of the language, if you meant to say that a majority present in each House— shouldn't you say a quorum?

Mr. LINDSAY. I will accept that. I thank the gentleman from Virginia. Finally, because I assured the chairman that I would not take long-I would turn to the second issue and that is the incredible situa

tion where we permit our system to exist with a President in office but no Vice President. This, I think, is very risky and should not be continued under any circumstances. The deficiencies in the situation I think are obvious, they have been discussed and rediscussed. Members know that the Speaker might well be of a different political party than is the President, and I do think, too, that it can be argued with logic that the concept of separation of powers is infringed when a Speaker must be trained and tuned to executive as well as congressional business in that period when the Vice President has acceded to the Presidency and the Speaker is next in line.

Second, I do think that you have a problem continually here of training and qualification which is important in this day and age. Particularly with lightning decisions being made or having to be made, one needs a full-time person as the Vice President at all times. So, the second resolution that I had submitted again in this Congress, House Joint Resolution 140, proposes a constitutional change to provide for the election of the new Vice President by the Congress.

Now, the method of this is slightly different from other Members' suggestions, and I offer it for the consideration of the committee. It would provide a Presidential veto in the event that a President disagreed with the Vice President selected by the Congress. What is proposed is that the individual who would step into the office of the Presidency should immediately convene the Senate and House in joint session to select the Vice President. The selection would be by majority vote, each Member of Congress having one vote. The President would have a power of veto, and if he exercised it, Congress would propose another candidate.

There would be no right of overriding the veto. I have limited the possible candidates to Members of Congress, heads of executive departments, or Governors of States. The first person selected would be required to vacate his current office. This process would be followed when the office became vacant more than 30 days. It would also be followed if the Vice President left or might become permanently unable to take his office.

This again is a constitutional amendment that is of great importance and long overdue. The pressure of the Congress on this has not been as old as has been the pressure of the Congress on inability, but it is just as important in my opinion, and I hope, Mr. Chairman, that this committee in its wisdom will take action on these constitutional proposals as soon as possible, as speedily as possible, doing the best we can, and if we differ from the Senate versions then we will hammer it out in conference.

Thank you very much.

The CHAIRMAN. Thank you, sir.

The next witness is Mr. Dante Fascell, of Florida.

STATEMENT OF HON. DANTE FASCELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA

Mr. FASCELL. Thank you, Mr. Chairman and members of the committee. Any time, now or in the future, that any President catches a cold, all of us are going to be concerned with the problem of who will run the country if he is unable to serve. Present law is obviously

inadequate and a change is called for. The committee is satisfied, or ought to be satisfied, that there is now a broad base of support for necessary changes. This is evidenced by resolutions of the American bar and local associations and other organizatinons that this problem must be solved. Americans generally fully support the recognition by this committee and its chairman of the urgency of the matter. We certainly need to do whatever is necessary to strengthen the concept of the continuity of the democratic institutions. Certainly it ought to be clear, and I am sure it is that world conditions are such that we cannot, in any time, under any conditions, suffer a time lag with respect to the continuity of our own institutions.

We have obvious problems, all of which you recognize the legal form, the procedure itself, the language, the legal effect, personalities, and politics-but I conclude with only one admonition which is old homespun philosophy: The time has come to do something, even if it is wrong.

Mr. Chairman, I have a prepared statement, which I request be inserted in the record. Knowing full well of the ability of the members of this committee, I am sure you will work out this problem to the satisfaction of everyone concerned.

Thank you very much.

The CHAIRMAN. You want your prepared statement in the record? Mr. FASCELL. Yes, thank you.

(The full statement of Mr. Fascell follows:)

STATEMENT OF DANTE B. FASCELL

Whenever one of our Presidents becomes ill or dies while in office, there is invariably a flurry of concern about clarifying our laws so that we may be able to deal more effectively with such situations than we have in the past. Thus far, such flurries have not resulted in action.

President Garfield lay unconscious for most of 80 days after he had been struck by an assassin's bullet. During that time, the country was without a President even though the Constitution provides that when the President is unable to carry out his duties the Vice President is to take over. It does not, however, say whether he is to become President or merely act as President. It does not say whether he is to take over until the end of the term or only until the President again becomes able. It does not say who will decide when such a disability begins and ends.

Because there is so much doubt about the law, Garfield's Vice President Chester A. Arthur did nothing. The doubt also dissuaded Vice President Marshall from acting during President Wilson's 18-month illness. The voluntary agreement between President Eisenhower and Vice President Nixon was not worked out until after the President had recovered from his last illness-too late for it to be useful. In any case, there is general agreement that a Vice President acting on the basis of a voluntary agreement cannot have the full confidence of the people. Only an amendment to the Constitution can provide the necessary air of legitimacy.

After each of these incidents, the problem of presidential inability and succession was explored, but not until last year was there any semblance of agreement on a way to solve them. In January of 1964, at the call of the American Bar Association, a dozen of the Nation's leading legal scholars met here in Washington, discussed the possible solutions and, after two days, emerged with a consensus subsequently endorsed by the ABA house of delegates.

Later in January, the Senate Subcommittee on Constitutional Amendments began hearings on presidential inability which continued in February and March. From these hearings and the many executive sessions which followed them, there emerged Senate Joint Resolution 139 of the 88th Congress which the Senate passed by a vote of 65 to 0 shortly before adjournment last year. Chairman

Celler has introduced this legislation in the 89th Congress, House Joint Resolution 1. I have sponsored an identical measure, House Joint Resolution 235. This proposed constitutional amendment would solve two problems. It would solve the problem of vacancies in the office of Vice President, which has existed on 16 different occasions for periods totaling more than 37 years, by directing the President to nominate a Vice President who shall take office upon confirmation by a majority of both Houses of Congress. With the inauguration of Vice President Humphrey on January 20, 1965, we have a Vice President of the United States for the first time in 14 months.

It would also solve the problem of presidential inability by directing the Vice President to discharge the powers and duties of the Presidential office whenever the President declares in writing that he is unable to carry them out or, if the President does not so declare, whenever the Vice President-with a written concurrencce of a majority of the heads of the executive departments or such other body as Congress may by law provide transmits to Congress his written declaration that the President is unable to discharge his duties. In either case, the President shall resume his office whenever he transmits to Congress his written declaration that no inability exists, unless the Vice President, with a written concurrence of a majority of the heads of the executive departments, transmits to Congress, within 2 days, his written declaration that the President is unable to carry out his duties. In such a case, Congress is to decide the issue immediately and unless two-thirds of both Houses decide that the President is unable, the President shall resume the powers and duties of his office.

Thus, the bill provides an orderly procedure whereby the Vice President may act as President in cases of presidential inability and, furthermore, provides the mechanism whereby a President can resume his office after recovery from a disability.

The bill is closely modeled after the recommendations of the American Bar Association proposal of January 1964. The proposed amendment also incorporates the recommendations of the Dade County Bar Association's resolution of March 5, 1964.

More recently, the Committee for Economic Development has issued a national policy statement on "Presidential Succession and Inability." The principal difference between their recommendations and this measure is that they would permit disagreements between the President and Vice President on disability to be resolved by the Cabinet. The Cabinet decision would stand unless upset by the Congress through the impeachment process.

On one thing there is complete agreement: There is urgent need for immediateaction. In these perilous times there can never be a moment's doubt about whose hand is responsible for running this country. This resolution is the best solution I have yet seen and I urge the committee to act favorably upon it. The CHAIRMAN. The Hon. Charles Bennett.

STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE. IN CONGRESS FROM THE STATE OF FLORIDA

Mr. BENNETT. I congratulate the committee for undertaking this. important subject. As a member of the Armed Services Committee for many years, with the background of the full and ever-present knowledge of the fact that the President is Commander in Chief, I would like to underscore what Mr. Fascell said on the need to have somebody ready without any lapse of time to fulfill these responsibilities. That is one of the responsibilities of the Presidency. There are many others which I am sure the committee knows fully.

I want to congratulate the committee for undertaking this.
The CHAIRMAN. Have you got a statement?

Mr. BENNETT. I am submitting a statement. If you don't mind, I will add this to what I have said.

The CHAIRMAN. I accept it; thank you, sir.