Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Congressional Materials Twenty-Fifth Amendment Archive 6-11-1963 Presidential Inability: Hearings Before the Subcomittee on Constitutional Amendments of the Committee on the Judiciary, Senate, 88th Congress Subcomittee on Constitutional Amendments; Committee on the Judiciary. Senate. United States. Follow this and additional works at: http://ir.lawnet.fordham.edu/ twentyfifth_amendment_congressional_materials Part of the Law Commons Recommended Citation Subcomittee on Constitutional Amendments; Committee on the Judiciary. Senate. United States., "Presidential Inability: Hearings Before the Subcomittee on Constitutional Amendments of the Committee on the Judiciary, Senate, 88th Congress" (1963). Congressional Materials. 6. http://ir.lawnet.fordham.edu/twentyfifth_amendment_congressional_materials/6 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]. PRESIDENTIAL INABILITY HEARINGS BEFORE THE SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OP THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE EIGHTY-EIGHTH CONGRESS FIRST SESSION ON S.J. RES. 28, SJ. RES. 35 and S.J. RES. 84 RELATING TO THE PROBLEM OF PRESIDENTIAL INABILITY JUNE 11 AND 18, 1963 Printed for the use of the Committee on the Judiciary U.8. GOVERNMENT PRINTING OFFICE 20-328 0 WASHINGTON : 1963 COMMITTEE ON THE JUDIOIARY JAMES 0. EA8TLAND, Mississippi, C~srman E8TEB KEFAUVER, Tennessee EVERETT McKINLEY DIRKSEN, Illinois OLIN D. JOHNSTON, South Cuollna ROMAN L. HRUSKA, Nebraska JOHN L. McCLELLAN, Arkansas KENNETH B. KEATINO, New York 8AM J. ERVIN, Ji., North Carolina HIRAM L. FONO, Hawaii THOMAS J. DODD, Connecticut HUGH SCOTT, Pennsylvania PHILIP A. HART, Michigan EDWARD V. LONG, Missouri EDWARD M. KENNEDY, Massachusetts BIRCH BAYH, Indiana SUBOOMMITrE ON CONSUTIOIONAL AMENDMENTS ESTE8 KEFAUVER, Tennessee, Chairman JAMES 0. EASTLAND, Mississippi EVERETT McKINLEY DIRKSEN, Illinois THOMAS J. DODD, Connecticut KENNETH B. KEATINO, New York HIRAM L. FONO, Hawaii FRED P. GRAHAM, Ch ef Cbunrel CONTENTS Opening statement of Hon. Estes Kefauver a U.S. Senator from Ten- Paro nessee, chairman of the Subcommittee on institutional Amendments. 1 Texts of- Senate Joint Resolution 28--------------------------------.--. 2 Senate Joint Resolution 35-..--------------------------------- 5 Senate Joint Resolution 84.--..-------------------------------- 7 Federal constitutional and statutory provisions governing presidential in- ability------------------------------------------------ 9 Statement of- Hansen Richard H., attorney at law, Lincoln, Nebr -------------- 23 Katzenbach, Nicholas deB., Deputy Attorney General, U.S. Depart- ment of Justice, Washington, D.C.--------------------------- 32 Keating, Hon. Kenneth B., a U.S. Senator from the State of New York (S.J. Res. 35)......-------------------------------------. 10 Koch, Robert A., member of the Committee on Federal Legislation of the Association of the Bar of the City of New York ------------- 55 Powell, Lewis F., Jr., president-elect nominee, American Bar Associa- tion of Richmond, Va.------------------------------------ 13 Taylor, Martin, chairman, Committee on Federal Constitution, New York State Bar Association, New York N.Y-..---------------- 18 Wyman, Louis C a Representative in Congress from the First Con- gressional District of the State of New Hampshire--------------- 40 Statement submitted by- Hruska, Hon. Roman L., a U.S. Senator from the State of Nebraska (S.J. Res. 84)..----.. ----------------------------------- 58 APPENDIX Exhibits- Exhibit No. 1: Report of the Bar of the City of New York on the problem of presidential inability, approved May 8, 1962-.-------- 61 Exhibit No. 2: Press release, dated August 10, 1961, from the White House, regarding procedures adopted between President John F. Kennedy and Vice President Lyndon B. Johnson, with regard to presidential inability ..------------------------------------- 85 Exhibit No. 3: Opinion of the Attorney General of the United States, dated August 2 1961, regarding presidential inability----------- 87 Exhibit No. 4: Excerpts from the book, "Six Crises," by former Vice President Richard M. Nixon, discussing presidential inability, pages 178 to 180 (1962)---------------------------------- 114 Exhibit No. 5: Letter dated June 21, 1963, to Hon. Estes Kefauver by Sylvester C. Smith, Jr., president, American Bar Association, American Bar Center, Chicago, Ill---- ---------------------- 117 PRESIDENTIAL INABILITY TUESDAY, JUNE 11, 1963 U.S. SENATE, SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS OF THE COMMITTEE ON THE JUDICIARY, Washington, D.O. The subcommittee met, pursuant to call, at 2:20 p.m., in room 2228, New Senate Office Building, Senator Thomas J. Dodd presiding. Present: Senators Dodd and Keating. Also present: Fred Graham, chief counsel; Clyde Flynn, minority counsel; William H. Barr, research assistant; and Angelina T. Gomez, clerk. Senator DODD. We will open the hearings. Senator Kefauver is not able to be here because he has a sprained ankle and I am filling in for him. I want to read into the record the statement prepared by Senator Kefauver as follows: On several occasions, this country has been reminded that a dangerous constitutional flaw exists in our presidential system. At least three Presidents have become so seriously 111 while they were in office that for a considerable period of time they were incapable of exercising the powers and duties of the Presidency. However, the Constitution does not clearly authorize the Vice President, or any other officer, to discharge the presidential powers and duties while the President is unable to do so himself. In 1958, this subcommittee conducted an exhaustive series of hearings into the constitutional problem of presidential inability. The three serious illnesses of President Elsenhower were then fresh in the public's memory, and six proposed constitutional amendments concerning presidential inability had been introduced in the Senate. The hearings proved that there was a deep concern among governmental leaders and constitutional scholars about this problem, but that there were equally deep differences of opinion as to what should be done to remedy the problem. Since the 1958 hearings, the various interested parties have persisted in their efforts to work out a satisfactory constitutional solution to this prob- lem. As a result of these efforts, three proposals have been introduced in the Senate, and are now pending before this subcommittee. We will order that these three resolutions be printed at this place in the record: Senate Joint Resolution 28, Senate Joint Resolution 35, and Senate Joint Resolu- tion 84. (The full texts of the resolutions follow, together with the Fed- eral constitutional and statutory provisions governing presidential inability:) PRESIDENTIAL INABILITY 88TrI1 CONGRESS SEIONES. 28 IN THE SENATE OF THE UNITED STATES JAxNUARY 23 (legislative day, .LT\sv.r:v 15), 1963 Mr. KEPAXUVER introduced the following joint Ir.solution ; which was i;l t wi'e and referred to flie Committee on tlie .Jdiciary JOINT RESOLUTION Proposing an amendment to the Constitution of tile United States relating to cases where the President is unable to dis- charge the powers and duties of his office. 1 Resolved by the Senate and House of Repres.entatires 2 of the United States of America in Congress assembled (two- 3 thirds of each House concurring therein), That the following 4 article is proposed as an amendment to the Constitntion 5 of the United States, which shall be valid to all intents and 6 purposesas part of the Constitution only if ratified by the 7 legislatures of three-fourths of the several States within 8 seven years from the date of its submission by the Congress: I K4i T ., - PRESIDENTIAL INABILITY 2 1 "ARTICLE - 2 "SECTION 1. In case of the removal of the President 3 from office, or of his death or resignation, the Vice President 4 shall become President for the unexpired portion of the 5 then current term. 6 "hSIc. 2. If the President shall declare in writing that he 7 is unable to discharge the powers and duties of his office, such 8 powers and duties shall be discharged by the Vice President 9 as Acting President. 10 "S e. 3. If the President does not so declare, the Vice 11 President, if satisfied that such inability exists, shall, upon 12 the written approval of a majority of the leads of the execu- 13 tive departments in office, assume the discharge of the powers 14 and duties of the office as Acting President. 15 "S8Ec. 4. Whenever the President makes public an- 16 nouncement in writing that his inability has terminated, lie 17 shall resume the discharge of the powers and duties of his 18 office on the seventh day after making such announcement, 19 or at such earlier time after such announcement as lie and 20 the Vice President may determine. But if the Vice Presi- 21 dent, with the written approval of a majority of the heads 22 of executive departments in office at the time of such 23 announcement, transmits to the Congress his written declara- 24 tion that in his opinion the President's inability has not 25 terminated, the Congress shall thereupon consider the PRESIDENTIAL INABILITY 3 1 issue. If the Congress is