elected to the office of President and Vice President are no longer capable of discharging the powers and duties of the Presidency. The clause does not give authority to the Congress to make laws establishing or determining that inability does in fact exist. Many constitutional experts are of the opinion that only by means of a constitutional amendment can procedures be established whereby a President can be declared incapable of performing the duties of his office because of physical or mental disability. The important point to be made, however, is that to allow any doubt as to the constitutionality of legislation in this area is much too hazardous to leave to chance. The only absolutely safe procedure is to enact a constitutional amendment, thereby eliminating the possibility of unconstitutional legislation.

For over 75 years, the problems relating to the disability of a President have received some attention by the Congress, but nothing has ever been done with regard to them. It has been said that we have existed as a Nation for nearly 175 years without providing a solution to the problems inherent in the "inability" clause and in all that time no serious detriment to the Nation has occurred. But the mere fact that we as a Nation have been fortunate thus far is no reason to tempt providence in so important a matter as the Presidency. Prudence and commonsense dictate that serious detriment may occur if we neglect to remedy the situation.

The amendment proposed by Senate Joint Resolution 100 is nonpolitical in nature. It is not a Democratic or a Republican amendment. It is not a liberal or a conservative amendment. It is a necessary amendment in view of the serious problems raised by the failure of the Constitution to provide for a continuity in the adequate performance of the powers and duties of the President in the event of disability. This proposed amendment properly meets the demands of the situation. It removes any uncertainty about the legality of any action taken during the incapacity of the President.

The proposed amendment provides that whenever the Congress believes the President is unable, by reason of physical or mental disability, to discharge the powers and duties of the office, it shall request the Supreme Court to decide whether such disability exists and if the Court so decides, then the powers and duties of the President shall devolve upon the Vice President or upon the person next in line of succession.

The proposal provides for succession only after due consideration by the two Houses of Congress and by the Supreme Court. The action thus taken has an impact on all three branches of the Government; yet no unilateral action by any single branch of the Government can be conclusive. I am convinced that it is absolutely vital that the system of checks and balances, America's unique contribution to government, be maintained, and Senate Joint Resolution 100 does not violate this time-honored system.

The requirement that the Congress should be directly involved in proceedings involving succession to the Presidency is absolutely necessary. The President is elected by all the people-so is the Congress. What other body under our Constitution is the alter ego of all our citizenry? It is, therefore, fitting and proper that no possibility of succession because of inability take place until the Congress has expressed its belief that the President is disabled.

The proposed amendment requires a majority of a quorum of two-thirds of the total number of the Members of each House for adoption of a resolution. Hence, it precludes the possibility of a small clique in either House achieving a political coup. At the same time it does not require so great a preponderance as to allow a small clique to prevent, for political advantage, a necessary change in the Executive.

There has been some comment that the Supreme Court should be kept out of this problem, since it is contrary to the traditional constitutional purposes for which the Court was established. There is little substance to such an argument. The Constitution already provides that the Chief Justice of the United States shall preside over proceedings for the removal of a President for cause, through impeachment. The problem herein is not a political problem. It is a national governmental problem. The matter can only be resolved by facing up to the responsibilities required under constitutional government. Accordingly, the participation by the Supreme Court in matters involving succession to the Presidency is not only already required by our own Constitution, but nothing required of the Supreme Court under the proposed amendment can in any way be deemed to impair the dignity of the Court, demean it, or cause it to become involved in partisan politics. The proposed amendment provides that upon a referral by the Congress, the final responsibility for determining whether disability exists

rests upon those of judicial temperament, appointed for life and, insofar as constitutional government can provide, beyond the temptations of political advantage. Yet, the Court cannot act unless first requested to do so by the separate and independent legislative branch of the Government.

Senate Joint Resolution 100 allows for due consideration by both elected and appointed officials. It requires action by officials already provided for in the Constitution, and it does not necessitate the creation of a new body of officials, commission, or agency.

It provides that the succession shall continue to the end of the current term, unless the disability is sooner relieved, in which event the President will again assume his office. This is consistent with the intention of the Founding Fathers who intended that succession by reason of disability should continue "* * * until the disability be removed, or a President shall be elected." Further, logic decrees that this should be so, for the people having elected a President intended that he should serve in that office for all of the ensuing term except for such periods as he may be disabled, or unless the office becomes vacant for the other reasons set forth in article II, section 1, clause 6.

The proposal provides for resumption by the President of his office in the same manner as is provided for relieving him of his burden when he is disabled; that is, by concerted action of the Congress and by the Supreme Court.

It provides for the possibility of succession by reason of inability even during periods when there is no Vice President by assumption of the office by those next in line of succession as provided by law.

And finally, it provides for succession even during possible periods when the Congress is not in session by establishing a procedure for reconvening the Congress upon the joint call of the presiding officers of both Chambers for the specific purpose only of considering whether it is the belief of the Congress that the President is unable, by reason of physical or mental disability, to discharge the powers and duties of his office.

I take this opportunity to point out to the committee that certain weaknesses are inherent in various proposals which have been suggested from time to time. For example, some say the President himself has the authority to declare himself disabled. While the Constitution is silent on whether the President is the appropriate one to make a determination of inability, such solution, even if constitutionally proper, is inadequate in the circumstances. What, for example, if the President is in a coma and unable to make any declaration, or is suffering from a mental disability, or supposing the President is in fact disabled and refuses to so declare? There are those who say that in such a situation resort can be had to impeachment proceedings. This is either ridiculous or unconstitutional since disability is not a high crime or misdemeanor.

Some say that the Constitution already provides that the Vice President has the authority to determine that a vacancy by reason of inability exists. No such grant of authority to the Vice President can be found anywhere in the Constitution. Further, no such grant of power ought to be placed in the hands of any one man, let alone the hands of the man who has the most to gain by the exercise of such a grant of power. Indeed, the impeachment proceedings are already so designed as to prevent the Vice President from being in a position to determine his own succession by providing that the Chief Justice of the United States and not the Vice President shall preside over such proceedings. Proposals embodying the view that the Cabinet is the appropriate body to determine disability suffer from the obvious disadvantage that cabinet officers have a direct interest in the continuance in office of the President who appointed them. Cabinet officers are the personal choice of a President, and serve at his pleasure. Their vested interest may color their judgment. Further, being nonelected officials they are not reflective of the will of the electorate.

Proposals for a joint determination by the Cabinet and certain legislative officials suffer from the obvious disadvantage that they give the Cabinet a veto power in any determination of inability.

Some would propose a special committee be appointed for determining Presidential disability. Such a committee necessitates the creation of an additional body outside the contemplation of the Constitution and would create a duplication of officials presently available to make a determination. Further, such committee would either not have final authority and hence would serve only to complicate the procedure and create additional delays in reaching a final determination, or such committee would have final authority, and the placing of such power in the hands of a few might well lead to undesirable consequences.

Senate Joint Resolution 100 has the advantage of simplicity, yet it allows for deliberate reflection upon a grave constitutional change. It can be effected in as relatively short a time as circumstances may require; at the same time it provides a broad base of participation by responsible officials so that none can ma-. nipulate it for personal or partisan political advantage.

I believe it appropriate to bring to the attention of the committee an article appearing in the New York Times on January 23, 1958 relating to a letter from Chief Justice of the United States Warren addressed to Representative Kenneth B. Keating of the House Judiciary Committee. The Chief Justice stated that it was the unanimous belief of the Supreme Court that no member of the Court should be a member of any commission created to determine whether a President was disabled. The basis for this belief being that there is a "possibility of a controversy of this character coming to the Court, and the danger of disqualification which might result in lack of a quorum, it would be inadvisable for any member of the Court to serve on such a commission."

In light of the foregoing, the advisability of adopting the amendment proposed by Senate Joint Resolution 100 becomes readily apparent. Under it, the Supreme Court would be acting as a judicial body without having been involved in any prior proceeding. The constitutionality of the procedure and their determination thereunder could not be challenged. Further, the Court itself recognizes the probability, under any procedure, of the matter coming before the Court for a final determination. Since this is so, the most appropriate and direct procedure is outlined in Senate Joint Resolution 100. Further, the Court voices no objection to making a final determination, it merely objects to having one or more members involved in any prior proceeding, the propriety of which would ultimately be placed before the Court.

(The text of the New York Times article follows :)

[The New York Times, Thursday, January 23, 1958]

"HIGH COURT JUSTICES AGAINST DISABILITY ROLE

"WASHINGTON, January 22 (AP).-Chief Justice Earl Warren said today that he and the other Supreme Court Justices felt they should not be members of any commission to determine whether a President was disabled.

"Various proposals before Congress to provide by law for the Vice President to take over the Presidency temporarily in case of need call for a commission to determine whether a President is in fact disabled. Several of these bills would provide for one or more members of the Supreme Court to be on the commission. "Chief Justice Warren expressed his views in a letter to Representative Kenneth B. Keating of upstate New York, senior Republican member of the House Judiciary Committee. He wrote:

"It has been the belief of all of us (the Justices) that because of the separation of powers in our Government, the nature of the judicial process, the possibility of a controversy of this character coming to the Court, and the danger of disqualification which might result in lack of a quorum, it would be inadvisable for any member of the Court to serve on such a commission.'

I again, Mr. Chairman, in closing, recommend for the thoughtful consideration of this committee the merits of Senate Joint Resolution 100.

I introduce at this point, for the benefit of the committee, a bibliography of selected material on Presidential inability.

SELECTED MATERIAL ON PRESIDENTIAL INABILITY

Administration asks constitutional rules for replacing a disabled President.
Bus. W., April 6, 1957, p. 151.

Butler, Benjamin: Presidential inability. 1881. 133 N. Am. R., p. 428.
Cooley, Thomas M.: Presidential inability. 1881. 133 N. Am. R., p. 422.
Corwin, Edward S.: The President: Office and Powers. New York, New York
University Press, 1941.

Curtis, George T.: Presidential inability. 1881. 25 Harpers Weekly, p. 583.
Disability of the President. 1919. 23 Law Notes, p. 141.

Dwight, Theodore W.: Presidential inability. 1881. 133 N. Am. R., p. 436. For emergency use only: substitute President. April 19, 1957. 70 Scholastic, pp. 14-16.

Frelinghuysen, Peter, Jr.: Presidential disability. September 1956. 307 Annals of the Am. Acad. of Pol. and Soc. SC., pp. 144-155.

Fulton, J. Alexander: Presidential inability. 1881. 24 Albany L. J., pp. 286–289. Gilliam, Armistead W. and Sloat Jonathan W.: Presidential inability. 1956. 24 Geo. Wash. Univ. L. R., pp. 448-464.

Green, Theodore F.: Presidential succession. 1957. 61 Dick. L. R., pp. 323–334. Johnson, G. W.: Presidential disability. Apr. 29, 1957. New Republic.

Koonce, David.: Who shall determine if a President is disabled. Jan. 1956. Democratic Dig., 57-59.

Lavery, Urban A.: Presidential inability. 1922 8 Am. B. A. J., pp. 13–17. Leavitt, John B.: A solution of the presidential inability problem. 1922. 8 Am. B. A. J., pp. 189-190.

New York State Bar Ass'n.: Committee on Federal Constitution.

inability report. Bull. April 1957, pp. 108-10.

Presidential

Parsons, W.: Who succeeds a disabled President. Apr. 6, 1957 America.
Presidential inability. 1920 2 Weekly R., p. 481.

Presidential disability. Apr. 19, 1957. Commonwealth, p. 53.

The President's Illness. 1920 14 Am. Pol. Sc. R., pp. 87-88.

Rogers, Lindsay. : Presidential Inability. 2 Review, p. 481.

Silva, Ruth C.: Presidential succession and disability. 1956. 21 Law & Contemp. Prob., p. 646.

Silva, Ruth C.: Presidential succession. Ann Arbor, Univ of Mich. Press, 1951. Smith, B.: If a President collapses. Mar. 23, 1957. 229 Sat. Eve. Post., pp. 20-21

Truman, Harry S: Presidential disability. June 30, 1957. N. Y. Times, p. 1. Trumbull, Lyman: Presidential inability. 1881. 133 N. Am. R., p. 417.

U. S. Congress. House. Committe on the Judiciary. 66.2 Hearings on Presidential inability. Washington, U. S. Govt. Print. Off., 1956.

U. S. Congress. House. Committee on the Judiciary. 84.2 Presidential inability. Washington, U. S. Govt. Print. Off., 1956. 74 p.

U. S. Congress. House. Committee on the Judiciary. 84.2 Hearings on Presidential inability. Washington, U. S. Govt. Print. Off., 1956.

U. S. Congress. House. Committee on the Judiciary. 84.2 Presidential inability. Replies to a questionnaire. Washington, U. S. Govt. Printing Off., 1956.

U. S. Congress. House. Committee on the Judiciary. 85.1 Presidential inability; analysis of replies to questionnaire and testimony at hearing. Washington, U. S. Govt. Print. Off., 1957. 868 pps.

Waugh, Edgar W.: Second Consul. New York, Bobbs-Merril, 1956.

When Presidents become ill there's no clear line of authority. Oct. 1955. U. S. News, pp. 60-63.

Who gets the power when a President is disabled. pp. 42-51.

Jan. 1956. U. S. News,

Williams, Irving G.: The rise of the vice presidency. Washington, Public Affairs Press, 1956.

Wilmerding, Lucius, Jr.: Presidential inability. 1957. 72 Pol. Sc. Q. pp. 161-181. Wyman, Louis C.: When a President is too ill to handle the job. Mar. 1 1956. U. S. News, pp. 44–45.

UNITED STATES SENATE, COMMITTEE ON APPROPRIATIONS, January 24, 1958.

Hon. ESTES KEFAUVER,

Chairman, Subcommittee on Constitutional Amendments,
Senate Judiciary Committee, Washington, D. C.

Dear Mr. CHAIRMAN: I do not anticipate that I will be able to personally attend the hearing being conducted by your subcommittee this afternoon on legislation covering the subject of Presidential inability or disability.

Yesterday, I introduced one bill, S. 3113, and two proposed constitutional amendments, Senate Joint Resolutions 143 and 144 on this subject and have furnished Mr. Wayne H. Smithey of your subcommittee professional staff with a detailed explanation of them. I will be very appreciative if you can arrange to have this material made a part of the hearings.

Sincerely yours,

STYLES BRIDGES.

EXPLANATION OF MEASURES PROPOSING SOLUTIONS TO THE PROBLEM OF
PRESIDENTIAL INABILITY

INTRODUCTION

In the bill I have introduced the question of Presidential inability would be determined by the Congress. Its initial consideration would be by a congressional committee, composed of the President pro tempore of the Senate, the Speaker of the House, and the majority and minority leaders of both Houses. Following affirmative action by this committee, a concurrent resolution would be reported to each House, the adoption of which would require the concurrence of two-thirds of those present and voting.

Both of my proposals of constitutional amendment are based on the assumption that the Constitution might not now contain authority for Congress to provide by legislation for the determination of the ability of the President to discharge the powers and duties of his office.

In one joint resolution I am proposing by constitutional amendment to achieve what the bill is designed to do by statute.

The other joint resolution proposes, as an alternative, a constitutional amendment which, among other things, grants Congress constitutional authority to provide for the making of such determinations, but would not incorporate into the Constitution itself details of the methods to be used.

BILL

The bill is based upon the assumption that constitutional authority now exists under which the Congress by legislation may provide for the determination of the ability of the President to discharge the powers and duties of his office. Subsection (a) of the first section of the bill creates a committee for the consideration of any question which may arise as to the inability of the President to discharge those powers and duties. It is composed of the President pro tempore of the Senate, the Speaker of the House, and the majority and minority leaders of both Houses. The committee would be convened whenever the Vice President, by letter transmitted to the President pro tempore of the Senate and to the Speaker of the House, might suggest doubt as to the ability of the President to discharge his powers and duties. It could also be convened, in the absence of any such letter, upon request made by any four members of the committee, that number being prescribed as a quorum of the committee.

Subsection (b) of the first section makes it the duty of the committee, when convened for that purpose, to determine whether there is probable cause for belief that the President is unable for any cause to discharge the powers and Iduties of his office. If a determination is made, by the affirmative vote of at least four members, that such inability exists it is then the duty of the majority leader of each House to introduce in his House a concurrent resolution stating in substance that it has been determined by the Congress that the President is unable to discharge his powers and duties.

Subsection (c) of the first section provides that if such a resolution is adopted by both Houses, by the affirmative vote of not less than two-thirds of the Members present and voting in each House, the powers and duties of the President shall then devolve upon the Vice President, who shall discharge them until the disability of the President is removed or until a new President is elected and takes office.

Subsections (d) and (e) of the first section of the bill deal with the restoration to the President of his powers and duties upon the termination of his inability to discharge them.

Subsection (d) requires the committee described above to be convened upon receipt, by the President pro tempore of the Senate and the Speaker of the House, of a letter from the President advising that in his opinion his inability has ceased to exist. Upon the basis of such a letter, the majority leader of each House would be required to introduce in his House a concurrent resolution stating in substance that the Congress has determined that the inability of the President no longer exists.

Subsection (e) provides that upon the adoption of such a concurrent resolution by both Houses, by majority vote of all Members present and voting in each House, the President shall resume the discharge of the powers and duties of his office, and that the Vice President shall then resume the discharge of the powers and duties of the office of Vice President.