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Senator GREEN. Is that set out in the bill ?
Senator WHERRY. Yes. Now you have to do that-

Senator GREEN. But in the meantime he would have resigned both as Speaker and as Represenative?

Senator WHERRY. That is the chance he has to take, because you can't have a man holding two offices, that is, be President and Speaker.

Senator HOLLAND. He wouldn't resign, of course, if he wasn't the requisite age or if he hadn't been born in the United States.

Senator WHERRY. There might be some men that might not want to resign, but if he fails to qualify, it would go to the President pro tempore. And my bill provides that once the Speaker takes over, he cannot be supplanted by anyone except the President and the Vice President; and once the President pro tempore takes over, he cannot be supplanted by anyone except the President and the Vice President.

Senator GREEN. Then the contest would be thrown into the House. Senator WHERRY. No, there wouldn't be any contest.

Senator GREEN. You say if a Speaker did not qualify, then the next person appointed Speaker in his place—

Senator WHERRY. For example, a Congressman might be elected, and there might be some question as to whether or not he qualifiesthere are many reasons why he might not. In the meantime, if they have elected another Speaker, he would be in the line of succession in the event a President should die; and if he fails to qualify, then it goes to the President pro tempore. For that reason the bill accomplishes what I want to do, and that is to make the Speaker always the man that is to be the Acting President.

Senator GREEN. I understand the purpose, but is it accomplished ? Because a man as Speaker might resign, and then find he was incapable of taking the office of President, somebody might dig up something in his past.

Senator WHERRY. Then he had better not resign. If he does resign to take up the office of President and cannot qualify, and subsequently a new Speaker is elected and he can ascend to the Presidency, he steps in and the other man is out.

Senator GREEN. Suppose the Speaker doesn't want to be President?

Senator WHERRY. Then he does not qualify and it goes to the next Speaker. Senator GREEN. Does he have to resign as Speaker? Senator WHERRY. Certainly not. Senator GREEN. Then there would not be any next Speaker. Senator WHERRY. I didn't get your question.

Senator GREEN. Suppose the President died, President Truman died, and the Speaker did not want to be President.

Senator WHERRY. Then it would go to the President pro tempore. Senator LODGE. On that point

Senator WHERRY. I think if you will let me continue with this statement, you are bringing up exactly what we are going to talk about.

Senator LODGE. My question relates exactly to the point Senator Green brought up, and you have had one interruption and this relates to that interruption.

You spoke of a case in which the Speaker resigned as Speaker in order to become President, and then could not qualify. Can you give an illustration, a specific illustration?

Senator WHERRY. That isn't necessary. I can give you some, and will in these remarks, but the point is that to keep the Speaker always the first choice to become the Acting President-we want to give him the opportunity

Now the provision in this bill provides that if the occasion demands and we need a Speaker for an Acting President, he shall resign. Now you have to do that first. The reason I have already given, that is, in order to get over the constitutional hurdle that he can't hold two offices. If he resigns and for any reason does not qualify—he might resign and not know, for example, that he was not born in the United States or that he is not of the qualified age, he could hold the office of a Congressman, but he could not be a President.

Senator LODGE. That is the point. It seems to me he would always know, would he not?

Senator WHERRY. Then he would not resign.
Senator LODGE. He would certainly know if he was born abroad.

Senator WHERRY. If he knows he is not qualified, he wouldn't resign. In that case it will go to the President pro tempore of the Senate.

Senator Lodge. I am trying to imagine a case in which he resigned, not knowing that he would not qualify.

Senator WHERRY. I don't imagine he would resign if he did not know that he would qualify; but if he does resign and cannot qualify, then it would pass on to the President pro tempore. I can't imagine a case, myself.

Senator LODGE. Then he would be out of luck. Senator WHERRY. I don't think he would ever do it. You are raising a remote case. But if he did do such a thing, the provision for

a succession is here.

Senator LODGE. I see. Thank you. Senator WHERRY. You are welcome, and I would be glad to have any questions, I didn't mean that I wouldn't, but the statement covers these things.

This bill amends the act of 1886 so as to bring the line of succession first to the Speaker of the House, where I think it belongs.

The reason for this is obvious in that the Speaker of the House is elected as a Member of the House every 2 years from his district, and in turn elected by the House of Representatives as Speaker. Thus, next to the President and Vice President he is closer, I think, to the people than any other elected officer.

And it should be pointed out that in the event of the death of the Speaker, who is acting as President, a succeeding Speaker, if he qualifies, continues to succeed as Acting President of the United States so that wherever possible you will always have the officer who is closest to the people acting as President. I have stated before, the speaker is closer than any other elected officer called upon to discharge the duties as Acting President. Only where there is no Speaker or the Speaker fails to qualify does the bill provide for the extension of succession to the President pro tempore of the Senate.

But, once the President pro tempore qualifies—and this is a change I have in the bill—then the President pro tempore is not supplanted by a Speaker. He is only supplanted by a President or Vice President

а of the United States.

Now the reason for that is obvious, because if a Speaker fails to qualify and it becomes the opportunity for the President pro tempore to succeed as Acting President, we require him to resign as not only President pro tempore but as a Senator, and he ought to have the protection, at least, if he does that and qualifies as Acting President, that a Speaker doesn't supplant him during the unexpired term for which he serves as President of the United States.,

Senator GREEN. Are you assuming in this bill that the Speaker of the House and the President pro tempore of the Senate are officers within the meaning of the Constitution

Senator WHERRY. Not only do I assume that, but I make them officers in this bill.

Senator GREEN. Well, if they are not now, under the Constitution, how could you make them officers by this bill?

Senator WHERRY. I think they are officers, but I also make them officers in this bill.

Senator GREEN. How could you if they are not already under the. Constitution?

Senator WHERRY. That is my interpretation of it. That has been argued since 1792.

Senator GREEN. I understand the first point, you might think they were; but how could you make them officers by this bill?

Senator WHERRY. By naming them as the officers who succeed. We designate that this is the way it shall be when we pass the bill.

Senator GREEN. My point is

Senator WHERRY. I don't make them officers in the sense of the constitutional definition, because I can't legislate what is required in the Constitution. I will say, Senator Green, that in 1856–I don't believe I mention that in this statement—the Senate Judiciary Committee went over the complete history of this; and they brought back finding, a report to the Senate full committee, and also to the Senate, that they felt that the Members of the House and the Senate were constitutional officers.

Senator GREEN. I am familiar with that.

Senator WHERRY. Secondly, we have some cases in point that I think substantiate that.

I will also say for the benefit of Senator Fulbright's resolution that they also considered that a special resolution would be held constitutional in the event you wanted to go that way. I don't think there is a hurdle there, but I do think there is a hurdle in a President pro tempore or a Speaker holding the office of Speaker or President pro tempore and also Acting President at the same time. I think that is not constitutional.

Senator GREEN. Would you mind explaining why you think you could change the Constitution by this bill, and make the Speaker and the President pro tempore officers ?

Senator WHERRY. I don't think you are changing the Constitution by this bill.

Senator GREEN. That is assuming they are officers under this bill; but assuming the contrary, you said this would make them officers.

Senator WHERRY. The only way you can amend the Constitution is to amend the Constitution. I know that, and so do you.

Senator GREEN. Certainly.

Senator WHERRY. But after approximately a hundred years of congressional interpretation, a very competent Senate Judiciary Committee brought in the report in they felt we were officers. I could ask you why we are not officers, and you couldn't answer the question for many reasons. I think there are just as many reasons to say we are officers as that we are not.

Senator GREEN. But my point is, how could you change it either way by this bill?

Senator WHERRY. The only way you can change the Constitution is by the provisions by which the Constitution can be changed. Senator GREEN. But not by this bill. Senator WHERRY. You have your own opinion of that. All the research in the world would not help you out on that. Senator GREEN. No; the Supreme Court has not decided it. Senator WHERRY. The Supreme Court in the case of Lamar v. U.S., which I later intend to cite, covers it.

May I proceed? The CHAIRMAN. Yes. Senator WHERRY. Recently there has been a revival of interest in legislation relating to the Presidential succession. This interest was bronght to a focal point by the message of the President to the Congress on June 19, 1945, which reads as follows:

To the Congress of the United States:

I think that this is an appropriate time for the Congress to reexamine the question of the Presidential succession.

The question is of great importance now because there will be no elected Vice President for almost 4 years.

The existing statute governing the succession to the office of President was enacted in 1886. Under it, in the event of the death of the elected President and Vice President, members of the Cabinet successively fill the office.

Each of these Cabinet members is appointed by the President, with the advice and consent of the Senate. In effect, therefore, by reason of the tragic death of the late President, it now lies within my power to nominate the person who would be my immediate successor in the event of my own death or inability to act.

I do not believe that in a democracy this power should rest with the Chief Executive.

Insofar as possible, the office of the President should be filled by an elective officer. There is no officer in our system of Government, besides the President and Vice President, who has been elected by all the voters of the country.

The Speaker of the House of Representatives, who is elected in his own district, is also elected to be the presiding officer of the House by a vote of all the Representatives of all the people of the country. As a result, I believe that the Speaker is the official in the Federal Government whose selection, next to that of the President and Vice President, can be most accurately said to stem from the people themselves.

L’nder the law of 1792, the President pro tempore of the Senate followed the Vice President in the order of succession.

In this bill we reverse them, but the theory, the principle is the same.

The President pro tempore is elected as a Senator by his State and then as Presiding Officer by the Senate. But the Members of the Senate are not as closely tied in by the elective process to the people as are the Members of the House of Representatives. A completely new House is elected every 2 years, and always at the same time as the President and Vice President. Usually it is in agreement politically with the Chief Executive. Only one-third of the Senate, however, is elected with the President and Vice President. The Senate might, therefore, have a majority hostile to the policies of the President and might conceivably fill the Presidential office with one not in sympathy with the will of the majority of the people.

Some of the events in the impeachment proceedings of President Johnson suggested the possibility of a hostile Congress in the future seeking to oust a Vice President who had become President, in order to have the President pro tempore of the Senate become the President. This was one of the considerations, among several others, which led to the change in 1886.

No matter who succeeds to the Presidency after the death of the elected President and Vice President, it is my opinion he should not serve any longer than until the next congressional election or until a special election called for the purpose of electing a new President and Vice President. This period the Congress should fix. The individuals elected at such general or special election should then serve only to fill the unexpired term of the deceased President and Vice President. In this way there would be no interference with the normal 4-year interval of general national elections.

I want to make it clear that the President in his message stated that if the Congress cares to, they can provide a special election. This bill that I present does not provide for a special election.

I recommend, therefore, that the Congress enact legislation placing the Speaker of the House of Representatives first in order of succession in case of the removal, death, resignation, or inability to act of the President and Vice President. Of course, the Speaker should resign as a Representative in the Congress as well as Speaker of the House before he assumes the office of President.

I want to point out again that in the bill that passed the House similar to the one I introduced, that provision was taken out; and when I introduced the bill I wasn't careful enough to examine it, I took the original bill which was introduced which made that provision, and that is why I want to correct it.

If there is no qualified Speaker, or if the Speaker fails to qualify, then I recommend that the succession pass to the President pro tempore of the Senate, who should hold office until a duly qualified Speaker is elected.

And there I change it again, I say if the President pro tempore once qualifies, then he should continue through the unexpired term, even though a Speaker might qualify after the President pro tempore has taken the office.

If there be neither Speaker nor President pro tempore qualified to succeed on the creation of the vacancy, then the succession might pass to the members of the Cabinet as now provided, until a duly qualified Speaker is elected.

If the Congress decides that a special election should be held, then I recommend that it provide for such election to be held as soon after the death or disqualification of the President and Vice President as practicable. The method and procedure for holding such special election should be provided now by law, so that the election can be held as expeditiously as possible should the contingency arise.

In the interest of orderly, democratic government, I urge the Congress to give its early consideration to this most important subject.

HARRY S. TRUMAN. The WHITE HOUSE, June 19, 1945.

To carry ou the recommendations of the President's message, Representative Hatton W. Sumners of Texas, chairman of the House Committee on the Judiciary, introduced H. R. 3587. No hearings were held but the bill was reported to the House on June 27, 1945. It came up for consideration and passage on June 29, 1945.

It will be noted that the President's message recommends a change in the act of 1886, to place the succession essentially where it was under the act of 1792, which was the first law on the subject except that the

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