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CONTENTS

V. C.---

Statements of

Elliott, William Yandell, professor of history, Harvard University,

Cambridge, Mass.----

Fowler, Henry, attorney at law, Washington, D. C., and former

Director, Office of Defense Mobilization, Washington, D.C.---

Kress, Charles, Binghamton, N. Y....

Musmanno, Michael A., judge of the Supreme Court of the State of

Pennsylvania...

O'Mahoney, Hon. Joseph C., a United States Senator from the State

of Wyoming----

Rhyne, Charles, president, American Bar Association, Washington,

Rogers, Hon. William P., United States Attorney General, Wash-

ington, D. C.------

Taylor, Martin, chairman, subcommittee on Presidential inability,

New York State bar, New York, N. Y.--

Waugh, Edgar, professor of history and social sciences, Eastern Mich-

igan College, Ypsilanti, Mich...

Statements submitted by-

Bridges, Hon. Styles --

Fulbright, Hon. J. William ---

Payne, Hon. Frederick G.

Copy Senate Joint Resolution 141.

Copy Senate Joint Resolution 143.

Copy Senate Joint Resolution 144..

Copy S. 3113..

Copy Senate Joint Resolution 100.

Copy Senate Joint Resolution 133.

Copy Senate Joint Resolution 134...

Copy S. 238.-----

Article II, section 1, clause 6, of the Constitution...

Section 19 of title 3 of the United States Code entitled “Vacancy in Offices

of Both President and Vice President: Officers Eligible To Act"...

Letter dated January 20, 1958, addressed to Hon. Estes Kefauver from

Hon. Herbert Hoover, former President of the United States.------

Letter dated January 16, 1958, addressed to Hon. Estes Kefauver from

Hon. Harry S. Truman, former President of the United States, enclosing

a copy of an article ..

Letter dated January 20, 1958, addressed to Hon. Kenneth B. Keating from

Hon. Earl Warren, Chief Justice of the United States.--.
News release dated January 22, 1958, from the office of Hon. Kenneth B.

Keating, a Representative from the State of New York.-------

Article, Proposed Constitutional Amendment To Give Congress Power To

Determine Disability of the President To Discharge the Powers and

Duties of His Office, by Senator ('Mahoney in the Congressional Record

dated January 23, 1958..

Article, Presidential Disability, by Senator Kefauver in the Congressional

Record dated January 13, 1958

Biographical sketch, William Yandell Elliott ------

Presentation of Martin Taylor, Esq., New York, N. Y., as inserted in the

House Judiciary Committee hearing on Presidential inability, held

April 1, 1957.----

tee on the Judiciary, House of Representatives, from Cornelius W.
Wickersham, chairman, New York State Bar Association, committee on
Federal Constitution.---

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Report of committee on Federal Constitution, New York State Bar Associa

tion, dated December 31, 1957.
Biographical sketch, Henry Hamill Fowler...--..
Biographical sketch, Edgar W. Waugh.-------
Biographical sketch, Charles Sylvanus Rhyne.--

---Letter dated January 24, 1958, addressed to Hon. Estes Kefauver from

Arthur E. Sutherland, professor of law, Harvard University, Cambridge,
Mass., with attachment on Presidential disability as printed in the
New York Herald Tribune on December 11, 1957.--

-Letter dated January 20, 1958, addressed to Hon. Estes Kefauver from

Joseph E. Kallenbach, professor of political science, University of
Michigan, Ann Arbor, Mich., with three enclosures:
1. Proposed constitutional amendment on Presidential succession and

disability --------
2. Proposed statute implementing the Presidential inability clause--

3. Memorandum on Presidential inability...
Letter dated January 15, 1958, addressed to Hon. Estes Kefauver from

David Fellman, professor of political science, University of Wisconsin,
Madison, Wis., enclosing presentation of Professor Fellman as inserted
in the House Judiciary Committee print on Presidential inability, dated

January 31, 1956.--.
Letter dated January 20, 1958, addressed to Hon. Estes Kefauver from

Mark De W. Howe, Harvard Law School, Cambridge, Mass., enclosing
presentation of Professor Howe as inserted in the House Judiciary Com-
mittee print on Presidential inability, dated January 31, 1956...
Letter dated January 13, 1958, addressed to Hon. Estes Kefauver from

Women's National Republican Club, Inc., New York, N. Y..----Study prepared by Mary Shepard, Foreign Affairs Division, the Library of

Congress, Washington, D. C., entitled “Presidential Disability: Provi

sions in Foreign Constitutions".--
Letter dated March 2, 1958, addressed to Hon. Estes Kefauver from

Lindsay Rogers, Burgess professor of public law, Columbia University,
New York, N. Y., enclosing copy of an article entitled “Presidential

Inability" printed in The Review on May 8, 1920.----
Letter dated March 3, 1958, addressed to Hon. Estes Kefauver from

William W. Crosskey, professor of law, University of Chicago Law
School, Chicago, Ill., enclosing copy of an article entitled “Presidential
Disability a Judicial Issue," as printed in the Chicago Daily News on

April 19, 1957.----
Letter dated March 4, 1958, addressed to Hon. Estes Kefauver from

Jack W. Peltason, department of political science, University of Illinois,

Urbana, III.----
Letter dated March 5, 1958, addressed to Hon. Estes Kefauver from

James Hart, department of political science, University of Virginia,

Charlottesville, Va..---
Letter dated March 6, 1958, addressed to Hon. Estes Kefauver from
Murray Kornfeld, executive director, American College of Chest Phy-

sicians, Chicago, Ill.----
Letter dated March 6, 1958, addressed to Hon. Estes Kefauver from

Arnold J. Lien, department of political science, Washington University,

St. Louis, Mo.----
Letter dated March 13, 1958, addressed to Hon. Estes Kefauver_from

Thomas K. Finletter, New York, N. Y. former Secretary of the Air Force.
Copy Senate Joint Resolution 8, 84th Congress, 1st session, as passed

the Senate...

231

235

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237

239

240

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PRESIDENTIAL INABILITY

FRIDAY, JANUARY 24, 1958

UNITED STATES SENATE,
SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 2: 10 p. m., in room 424, Senate Office Building, Hon. Estes Kefauver (chairman of the subcommittee) presiding.

Present: Senators Kefauver, Langer, and Dirksen.

Also present: Wayne H. Smithey, member, professional staff, Senate Judiciary Committee.

Senator KEFAUVER. The committee will come to order.

This is the subcommittee of the Judiciary Committee on Constitutional Amendments composed of the Senator from North Dakota, Mr. Langer; the Senator from Illinois, Mr. Dirksen; the chairman of the full committee, Senator Eastland, from Mississippi; and the Senator from Missouri, Mr. Hennings.

The purpose of the meeting today is to start hearings on a number of resolutions proposing an amendment to the Constitution to make provision to determine the inability of the President of the United States to discharge his powers and duties, and also the removal of that disability. Also, the committee has before it two bills on the same subject.

We will order that all of the resolutions and bills be printed at this place in the hearing, Senate Joint Resolution 141, by Senator O’Mahoney, a joint resolution proposing a constitutional amendment, Senate Joint Resolutions 143 and 144, by Mr. Bridges, and S. 3113 by Mr. Bridges, the two resolutions proposing constitutional amendments, Senate Joint Resolution 100 by Senator Fulbright, a resolution proposing a constitutional amendment, Senate Joint Resolutions 133 and 134 by the chairman of this subcommittee, resolutions proposing constitutional amendments. S. 238 is a bill by Senator Payne proposing to act in this field by legislation without constitutional amendment. S. 3113, which was filed yesterday by Senator Bridges, is a bill to deal with this subject by legislation rather than by constitutional amendment.

All of these will be printed in the record at this point.

(S. J. Res. 141, 144, 143, 100, 133, and 134, S. 238, and S. 3113 are as follows:)

[S. J. Res. 141, 85th Cong., 2d sess.] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

relating to the determination of the inability of the President to discharge the powers

and duties of his office

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring

1

therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE

"SECTION 1. Whenever the President proclaims that he is unable to discharge the powers and duties of his office, or whenever the Senate and the House of Representatives pass a resolution by a two-thirds vote of each House declaring that the President is unable to discharge the powers and duties of his office, the Vice President, or if there be no Vice President, the officer next in line of succession to the office of President as provided by law, shall be Acting President.

“Sec. 2. An Acting President shall exercise the powers and duties of the office of President under this article until (1) the end of the then current presidential term, (2) such Acting President finds and proclaims that the inability of the President no longer exists, (3) the inability of the President is determined, in accordance with section 3 of this article, no longer to exist, whichever first occurs.

“SEC. 3. Whenever, during any period in which an Acting President is discharging the powers and duties of the office of President under this article, the Senate and the House of Representatives pass a resolution declaring that the inability of the President to discharge the powers and duties of his office no longer exists, the Acting President shall cease to exercise the powers and duties of the office of President and the President shall exercise such powers and duties.

“Sec. 4. The Congress may by law provide for the case where either or both Houses of Congress are not in session, declaring what officer or officers shall convene such House or Houses for the purpose of enabling them to perform the duties conferred upon them by this article.

“SEC. 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission."

[S. J. Res. 143, 85th Cong. 2d sess.) JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

to provide for determination of the ability of the President to discharge the powers and duties of his office

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE

"SECTION. 1. The President pro tempore of the Senate, the Speaker of the House of Representatives, the majority leader of the Senate, the minority leader of the Senate, the majority leader of the House of Representatives and the minority leader of the House of Representatives shall constitute a committee for the consideration of any question which may arise as to the inability of the President to discharge the powers and duties of his office. Such committee shall be convened (1) whenever the Vice President, by letter transmitted to the President pro tempore of the Senate and to the Speaker of the House of Representatives, may suggest that doubt exists as to the ability of the President to discharge the powers and duties of his office, or (2) upon request made by any four of the members of such committee. Four members thereof shall constitute a quorum. Whenever such committee is convened under this section, the committee shall determine whether there is probable cause for belief that the President is unable to discharge the powers and duties of his office. If the committee determines, by affirmative vote of not less than four members, that such probable cause exists, the majority leader of the Senate shall introduce in the Senate, and the majority leader of the House shall introduce in the House, a concurrent resolution stating in substance that it has been determined by the Congress that the President is unable to discharge the powers and duties of his office. Upon the adoption by both Houses of the Congress, by the affirmative vote of

not less than two-thirds of the Members present and voting in each House, of any such concurrent resolution, the powers and duties of the office of President shall devolve upon the Vice President, who shall then discharge such powers and duties until the disability of the President is removed, or until a new President is elected and takes office, whichever occurs earlier.

"SEC. 2. Whenever the Vice President has assumed the powers and duties of the office of President under section 1, and the President thereafter, by letter transmitted to the President pro tempore of the Senate and to the Speaker of the House of Representatives, advises that in his opinion his inability to discharge the powers and duties of his office no longer exists, the committee established by section 1 shall be reconvened. Upon the basis of such letter, the majority leader of the Senate shall introduce in the Senate, and the majority leader of the House shall introduce in the House, a concurrent resolution stating in substance that it has been determined by the Congress that the inability of the President to discharge the powers and duties of his office no longer exists. Upon the adoption by both Houses of the Congress, by majority vote of all Members present and voting in each House, of any concurrent resolution introduced in compliance with this section, the President shall resume the discharge of the powers and duties of his office, and the Vice President shall resume the discharge of the powers and duties of the office of Vice President.

"SEC. 3. Any concurrent resolution introduced under section 1 or section 2 of this article in either House of the Congress shall be placed immediately upon the proper calendar of such House without reference to committee. In debate upon any such concurrent resolution in the Senate, no Senator may speak in all more than one hour, and no dilatory motion shall be in order. It shall be the duty of the Presiding Officer of the Senate to keep the time of each Senator who speaks in such debate, and points of order and appeals from the decisions of the Presiding Officer shall be decided without debate.

“Sec. 4. If the committee established by section 1 of this article determines, at any time at which the Congress is not in session, that there is probable cause for belief that the President is unable to discharge the powers and duties of his office, the Congress may be convened in special session, upon the call of the President pro tempore of the Senate and the Speaker of the House of Representatives acting jointly, for the consideration of any concurrent resolution introduced in compliance with the provisions of this article.

"SEC. 5. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.”

[S. J. Res. 144, 85th Cong., 2d sess. ] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States

to make provision for the continuous discharge of the powers and duties of the office of the President of the United States

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States :

“ARTICLE

"SECTION 1. In the case of the removal of the President from office, or his death or resignation, the Vice President shall become President, and shall serve as such for the remainder of the term for which his predecessor was elected, In the case of the inability of the President to discharge the powers and duties of his office, such powers and duties shall devolve upon the Vice President, and shall be discharged by him during the continuance of the inability of the President.

“SEC. 2. The Congress may provide by law for the case of the removal, death, resignation, or inability of both the President and the Vice President, declaring what officer shall then discharge the powers and duties of the office of the President, and such officer shall discharge such powers and duties until the disability is removed, or a new President is elected and has taken office.

"SEC. 3. The Congress shall provide by law for the determination of all questions of fact arising under section 1 and section 2 of this article. If the Congress

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