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Speaker first succeeds. In order to understand the several problems involved, it may be helpful to trace the history of that part of the Federal Constitution which provides for succession to the office of President. Article II, section 1 (par. 5), of the Constitution of the United States, which provides for such succession, reads as follows:

In case of the removal of the President from Office, or of 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.

Senator KNOWLAND. Might I interrupt right at this point? I think there is no problem involved, as I see it, in the case of either the death or the resignation of the President or the person who shall be acting as President. But I would like you to explore a little hereand it is true in other legislation that has been introduced—what happens in the case of the inability of the President to act ? Does the Speaker in that case, in order to become acting President, have to resign his office as Speaker of the House, or does the President pro tempore of the Senate have to resign his office as President pro tempore of the Senate in order to become acting President, during the incapacity of the occupant of the White House to perform his functions; and then what happens if the incapacity is removed! You could have that situation with a stroke or something, where a President obviously would be unable to perform the duties of the Presidential office, and it might continue for 6 months or a year, and then he might become well and be able to resume his position as President of the United States. What then?

Senator WHERRY. That raises one of the most difficult questions you have to answer in the passage of this legislation: When is there an inability or disability? When can't someone serve?

To begin with, it would be quite a test upon the Speaker, if we had a Speaker, or upon the President pro tempore. They certainly would not want to resign if they thought the disability was only temporary. We have had two cases where that came up, but didn't have to be handled. One was in the long incapacity of President Garfield, who was shot and who lingered for nearly a year. In fact, just a few days more and it would have been over the period when his murderer could have been brought to justice. During the last 3 months he was at death's door. Then, also, in the case of President Wilson; you will remember he was for a long time ill prior to the expiration of his term of office. But in both cases they continued to act as President, and that decision was not made.

I can conceive, however, of a case of temporary insanity caused by some illness, or a stroke, where they might linger for months, where they would not be physically qualified to serve.

Senator BRICKER. Who would determine that disqualification ?

Senator WHERRY. The only way I can see is that it would have to be the one upon whom the duties of the acting President would fall in the event

Senator HICKEN LOOPER. How could he determine that?


Senator WHERRY. By resigning his office and taking the office of the acting President, with the understanding that if the President recovers he will accede again to the Presidency.

Senator HICKEN LOOPER. Who will he have that understanding with?

Senator HOLLAND. The Supreme Court is the only way that that could be done.

Senator WHERRY. Finally, yes; it is a constitutional question.

Senator KNOWLAND. You would have two people, otherwise, holding Presidential office, with considerable confusion.

Senator WHERRY. There would be no confusion in this bill, because we provide that when the disability is removed, whoever is acting as President is supplanted by the President and the Vice President of the United States only.

Senator KNOWLAND. I didn't mean to interrupt you, but I think it is a question. Senator WHERRY. I have got that covered later on in my

remarks. Senator HICKEN LOOPER. You would have a man who was unquestionably legally elected as President. You would only have two ways. in the case of disability, as I see it, two general ways, in which his inability to act could be determined either by his own statement and declaration that he was unable to act, that would undoubtedly establish that fact; or secondly, as Senator Holland says, by a judicial review and finding of the fact of inability to act.

Senator BRICKER. Ilow are you going to raise that judicial review, though?

Senator HICKENLOOPER. I don't know how, but that would be the only authoritative source other than the man's own statement. Otherwise you would have a man who was duly elected and a man who had resigned an office and became a claimant. What authority would the claimant have unless you had some forum or some yardstick by which to measure that inability? I think probably it is a situation that we may never have to meet.

Senator WHERRY. Well, that is the point I was going to conclude with.

Senator HOLLAND. We certainly have jurisdiction to entertain a petition that would throw the issue into the Court.

Senator WHERRY. Mr. Chairman, that can be argued from now to doomsday. The way to raise it is, of course, the way suggested by Senator Holland. But in this bill we do provide that if a President pro tempore or a Speaker does resign and becomes Acting President, he does it with the full knowledge that if the disability is removed, he is supplanted by the President or the Vice President of the United States.

The CHAIRMAN. Is it also possible under your bill that if the disability is apparently temporary, and the Speaker did not choose to resign and the President pro tempore did not choose to resign, that then it could go to a Cabinet member?

Senator WHERRY. Certainly. If they don't qualify, it could pass right on down.

The CHAIRMAN. If it was only one of those apparent temporary disabilities, they probably would not want to resign their office.

Senator WHERRY. I bring that up. There is the third way that the Senator didn't mention. If the President pro tempore and the

Speaker felt it was only temporary, they would not have to qualify. Then the President could appoint the Secretary of State.

The CHAIRMAN. It would fall to him automatically.

Senator WHERRY. By the law we are making. If we pass this, this is an automatic succession.

I don't believe that question will ever confront ús—it has happened twice in all the history of the country, and it was settled satisfactorily without a judicial determination; and I think from a practical standpoint that if the Speaker of the House or the President pro tempore felt that it was a temporary disability, there would be no question but what they would wait and see what happened.

Senator KNOWLAND. In the two cases where it happened, in the case of Garfield and in the case of Woodrow Wilson, there was a Vice President serving who obviously, if the disability was removed, would continue to occupy the office of Vice President of the United States. So it was not a question of resigning a job.

Senator WHERRY. But in this particular case you could pass it on to the Secretary of State if the President pro tempore or the Speaker did not care to resign and there were no Vice President. So from a practical point of view this settles it. But I do admit that that is the most difficult constitutional question to answer, I think, of all of them, because who is going to determine the inability of anyone?

Senator LODGE. It has never been settled at any time in our history.

Senator HICKENLOOPER. We have a precedent in our State where at one time we had a governor who became very ill, and really physically disabled, and by his own declaration he absented himself for almost a year. He acknowledged his physical inability to perform the duties of office, as I remember, and designated the lieutenant governor to take over the job, and no question was raised about it. But that was not a question of mental disability. His mental ability under the circumstances was sufficient, but he put it upon the basis of his physical inability to perform the duties of his office.

Senator WHERRY. That was a question of where a man made his own declaration.

Here we provide by statute the line of succession.' First it goes to the Speaker; if he fails to qualify for any reason—say he didn't want to do it—then it goes to the President pro tempore. If he fails to qualify for any reason, then it goes to the Secretary of State.

The CHAIRMAN. That doesn't completely answer that question, which I agree is difficult to answer here. We have a similar situation in Illinois, where the Lieutenant Governor and the Governor, although of the same party, were at very great odds; and the Governor was ill, and he stayed in the mansion and they called it government by cabinet. They didn't let anybody in to see him. But they issued releases from him, and orders, out of the capitol; and finally he died, and it was then quite generally known that he hadn't been competent for some months. But he did not admit he wasn't competent, his cabinet wouldn't let him admit it, and they ran the government as a government by cabinet; which might be done pretty much in this instance unless you finally decide how the question can be raised, who can settle the question. But that is beside the point in this bill, I think.

Senator WHERRY. I agree with that a hundred percent. The only final way you can judge the disability of a person would be either for those who are favorable to the individual, or those who are opposed, to raise the question. Then you would have to have a judicial determination of it. I imagine that is the only way you can get over that constitutional question.

But for all practical purposes, I think from a legislative point of view that this would handle the situation better than any bill I know of that has been introduced. With that thought in mind, I made that succession that way.

Going back to my statement, I had read to you article II, section 1 (par. 5) of the Constitution. Like most of the provisions of the Federal Constitution, that paragraph was the result of compromises in the Constitutional Convention, as will appear from the following excerpts from the report of James Madison on the Federal Convention of 1787, that had to do with this succession bill. I hope some of you feel this isn't too dry, but it represents a lot of work, and it gives quite a lot of the foundation on how the Congress passed the act of 1792.

The Convention met on Monday, May 14, 1787, adjourned over until Friday, May 25, when seven States were convened, and elected George Washington President of the Convention.

On Tuesday, May 29, Mr. Randolph introduced the “Virginia resolution," one of which reads as follows:

7. Resolved, That a national executive be instituted; to be chosen by the national legislature for the term of —; to receive punctually, at stated times, a fixed compensation for the services rendered, in which no increase or diminution shall be made, so as to affect the magistracy existing at the time of increase or diminution; and to be ineligible a second time; and that, besides a general authority to execute the national laws, it ought to enjoy the executive rights vested in Congress by the Federation.

Later the same day, Mr. Charles Pinckney introduced his plan for a Constitution, Article VIII of which read, in part, as follows:

In case of his removal, death, resignation, or disability, the President of the Senate shall exercise the duties of his office until another President be chosen. And in case of the death of the President of the Senate, the Speaker of the House of Delegates shall do so.

On Friday, June 1, in debate on Resolution 7 (Virginia resolutions), the matter of succession did not arise, as there was then no unanimity as to the number of persons who should comprise the Executive.

On Wednesday, June 13, Mr. Gorham reported the following resolutions :

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9. Resolved, That a National Executive be instituted, to consist of a single person; to be chosen by the National Legislature, for a term of seven years; with power to carry into execution the national laws; to appoint to offices in cases not otherwise provided for; to be ineligible a second time; and to be removable on impeachment and conviction of malpractice or neglect of duty; to receive a fixed stipend by which he may be compensated for the devotion of his time to the public service, to be paid out of the National Treasury.

On Friday, June 15, Mr. Patterson laid before the Convention the “New Jersey Plan,” Resolution 4 of which provided for a multiheaded executive for — years; ineligible for a second term, removable by Congress on application of a majority of State Executives; and so forth, but no mention was made of a successor.

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In the debates which followed, Hamilton proposed-June 18-in his plan:

IV. The Supreme Executive authority of the United States to be vested in a Governor, to be elected to serve during good behaviour; the election to be made by Electors chosen by the people in the Election Districts aforesaid

V. On the death, resignation, or removal of the Governor, his authorities to be exercised by the President of the Senate until a successor be appointed.

In the ensuing debate on Federal versus State government, the question seems not to have arisen at all, and it was not until July 19 that the Convention reached a discussion of the appointment of an Executive. However, there was no discussion of a successor.

On July 6–Thursday—the proceedings “since Monday last” were unanimously referred to the Committee of Detail; and the Convention adjourned until Monday, August 6. Resolution 12, so referred, provided for “a National Executive, to consist of a single person. There was no mention of a successor.

On August 6, Mr. Rutledge delivered the report of the Committee on Detail. Article X, section 1 read as follows:

The Executive power of the United States shall be vested in a single person. His style shall be “The President of the United States of America”, and his title shall be, “His Excellency". He shall be elected by ballot by the Legislature. He shall hold his office during the term of seven years ;. but shall not be elected a second time.

(NOTE.-Article V, section 4 provided: "The Senate shall choose its own President and other officers.") Article V, section 4 was agreed to August 9. The last part of section 2 of said article X read as follows:

He shall be removed from his office on impeachment by the House of Representatives, and conviction in the Supreme Court, of treason, bribery, or corruption. In case of his removal, as aforesaid, death, resignation, or disability to discharge the powers and duties of his office, the President of the Senate shall exercise those powers and duties, until another President of the United States be chosen, or until the disability of the President be removed.

On Monday, August 27, in Convention, article 10, section 2, being resumed-quoting from Madison's notes: Mr. Gouverneur Morris objected

to the President of the Senate being provisional successor to the President, and suggested a designation of the Chief Justice.

Mr. Madison adds, as a ground of objection, that the Senate might retard the appointment of a President, in order to carry points whilst the revisionary power was in the President of their own body; but suggested that the executive powers during a vacancy be administered by the persons composing the Council to the President.

(NOTE.—At this time, provision had been made for selection of the President “by ballot by the Legislature". -Article X, section 1).

Mr. Williamson suggested that the Legislature ought to have power to provide for occasional successors; and moved that the last clause of Article 10, Section 2, relating to a provisional successor to the President, be postponed.

Mr. Dickinson seconded the postponement, remarking that it was too vague. What is the extent of the term “disability” and who is to be the judge of it? The postponement was agreed to, nem con.

On August 31, such parts of the Constitution as had been postponed, and such parts of reports as had not been acted upon, were referred to a committee of a member from each State; which committee, in Convention, made a partial report on September 4—Tuesday-including a proposal for addition to article 10, section 1, as follows:

After the word “Excellency", in Section 1, Article 10, to be inserted : “He shall hold his office during the term of four years, and together with the Vice President,





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