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Selected Materials on the Twenty-Fifth Amendment, Senate Document No. 93-42. Birch Bayh

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Selected Materials on the Twenty-Fifth Amendment, Senate Document No. 93-42. Birch Bayh Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Congressional Materials Twenty-Fifth Amendment Archive 10-1973 Selected Materials on the Twenty-Fifth Amendment, Senate Document No. 93-42. Birch Bayh Constitutional Amendments Subcommittee; Committee on the Judiciary. Senate. United States. Follow this and additional works at: http://ir.lawnet.fordham.edu/ twentyfifth_amendment_congressional_materials Recommended Citation Bayh, Birch and Constitutional Amendments Subcommittee; Committee on the Judiciary. Senate. United States., "Selected Materials on the Twenty-Fifth Amendment, Senate Document No. 93-42." (1973). Congressional Materials. 17. http://ir.lawnet.fordham.edu/twentyfifth_amendment_congressional_materials/17 This Book is brought to you for free and open access by the Twenty-Fifth Amendment Archive at FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Congressional Materials by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. 93d Congress 1st SessionJ COMMITTEE PRINT SELECTED MATERIALS ON THE TWENTY-FIFTI AMENDMENT REPORT OF CONSTITUTIONAL AMENDMENTS SUBCOMMITTEE BY SENATOR BIRCH BAYH, Chairman TO THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE OCTOBER 1973 Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 22-517 0 WASHINGTON : 1973 TABLE OF CONTENTS Page 1. Senate Report No. 1382, 88th Congress, 2d session 2. Senate Report No. 66, 89th Congress, 1st session 3. House Report No. 203, 89th Congress, 1st session 4. Conference Report No. 564, 89th Congress, 1st session 5. Selected testimony and debate: Senator Birch Bayh_.. Congressman Emanuel Celler Senator Roman L. Hruska Hon. Richard M. Nixon Hon. Nicholas deB. Katzenbach Hon. Herbert Brownell Hon. Lewis F. Powell, Jr___ Hon. Marion B. Folsom Prof. Clinton Rossiter Prof. Paul A. Freund.... 6. "The Proposed Twenty-Fifth Amendment to the Constitution," John D. Feerick, Fordham Law Review, spring 1966 7. "Vice-Presidential Succession: Criticism of the Bayh-Celler Plan," George D. Haimbaugh, Jr., South Carolina Law Review, 1965 8. "Vice-Presidential Succession: In Support of the Bayh-Celler Plan," John D. Feerick, South Carolina Law Review, spring 1966 9. "Presidential Continuity: the Twenty-Fifth Amendment," Richard P. Longaker, UCLA Law Review, 1966 10. "Presidential Continuity and Vice-Presidential Vacancy Amendment," Legislative Reference Service, Library of Congress, Raymond J. Celada, 1965-67.... .. .... _.. _ __ ... (III) PREFACE Eight years ago, on July 6, 1965, the Congress approved and pro- posed to the States the Twenty-fifth Amendment to the Constitution. A year and a half later, on February 23, 1967, it was ratified by the necessary three-fourths of the States. The Amendment sought to clar- ify the ambiguity of Article II, Section 1 of the Constitution as to Presidential disability and to provide for the first time a procedure for filling a vacancy in the office of the Vice-President. Recent events have caused numerous questions to be raised about the operations of the Amendment, and a large number of inquiries on this subject have been directed to the Subcommittee on Constitutional Amendments. Because many of the Senate and House documents re- lating to the Amendment are out-of-print and because there appears to be a clear need to collect together in one place various other ma- terials on the Amendment, I have asked the Senate to print as a Senate Document the following compilation of Congressional documents, law review articles and legal memoranda. BIRCH BAYH, Chairman, Subcommittee on Constitutional Amendments, Senate Committee on the Judiciary. (V) Calendar No. 1317 88TH CoNGREsS SENATE REPORT 2d Session No. 1382 PRESIDENTIAL INABILITY AND VACANCIES IN THE. OFFICE OF THE VICE PRESIDENT AUGUST 13, 1964.-Ordered to be printed Mr. BAYm, from the Committee on the Judiciary, submitted the following REPORT together with INDIVIDUAL VIEWS [To accompany S. J. Res. 139] The Committee on the Judiciary, to which was referred the reso- lution (S.J. Res. 139), proposing an amendment to the Constitution of the United States relating to succession to the Presidency and Vice Presidency and to cases where the President is unable to dis- charge the powers and duties of his office, having considered the same, reports favorably thereon, with amendments, and recommends that the resolution, as amended, do pass. AMENDMENTS On page 1, line 7, following the word "States" strike the colon and add the following: within seven years from the date of its submission by the Congress: Strike all of SEC. 1, SEC. 2, SEC. 3, SEc. 4, SEc. 5, Smc. 6, and Sinc. 7 and insert in lieu thereof the following: Article - SECTION 1. In case of the removal of the President from office or of 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 Presi- dent who shall take office upon confirmation by a majorit- vote of both Houses of Congress. SEc. 3. If the President declares 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. SEc. 4. If the President does not so declare, and the Vice President with the written concurrence of a majority of the heads of the executive departments or such other body as Congress may by law provide, transmits to the Congress his 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 Congress 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 heads 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 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. PURPOSE OF THE AMENDMENTS To substitute perfecting language that was acquired by the recep- tion of testimony from expert witnesses in the field of constitutional law and from discussion of the problem by members of the subcom- mittee. PURPOSE The purpose of the proposed Senate joint resolution is to provide for continuity in the office of the Chief Executive in the event that the President becomes unable to exercise the powers and duties of the Office, and further, to provide for the filling of vacancies in the Office of the Vice President whenever such vacancies occur. STATEMENT The constitutionalprovisions The Constitution of the United States, in article II, section 1, clause 5, contains provisions relating to the continuity of the executive power at times of death, resignation, inability, or removal of a Presi- dent. No replacement provision is made in the Constitution where a vacancy occurs in the Office of the Vice President. Article II, section 1, clause 5 reads as follows: In Case of the Removal of the President from Office, or at his Death, Resignation, or Inability to discharge the Powers and Duties of the 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. This is the language of the Constitution as it was adopted by the Constitutional Convention upon recommendation of the Committee on Style. When this portion of the Constitution was submitted to that Committee it read as follows: In case of his (the President's) removal as aforesaid, death, absence, resignation, or inability to discharge the powers of duties of his office, the Vice President shall exer- cise those powers and duties until another President be chosen, or until the inability of the President be removed. The Legislature may declare by law what officer of the United States shall act as President, in case of the death, resignation, or disability of the President and Vice President; and such officer shall act accordingly, until such disability be removed, or a President shall be elected. While the Committee on Style was given no authority to change the substance of prior determinations of the Convention, it is clear that this portion of the draft which that Committee ultimately submitted was a considerable alteration of the proposal which the Committee had received. The inability clause and the Tyler precedent The records of the Constitutional Convention do not contain any explicit interpretation of the provisions as they relate to inability. As a matter of fact, the records of the Convention contain only one apparent reference to the aspects of this clause which deal with the question of disability. It was Mr. John Dickinson, of Delaware, who, on August 27, 1787, asked: What is the extent of the term "disability" and who is to be the judge of it? (Farrand, "Records of the Constitutional Convention of 1787," vol. 2, p. 427.) The question is not answered so far as the records of the Convention disclose. It was not until 1841 that this clause of the Constitution was called into question by the occurrence of one of the listed contingencies.
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