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The Twenty-Fifth AmendmentIts Complete History and Application$

John D. Feerick

Print publication date: 2013

Print ISBN-13: 9780823252008

Published to Fordham Scholarship Online: May 2014

DOI: 10.5422/fordham/9780823252008.001.0001

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An Analysis of Sections 1, 2, 3, and 4 of the Amendment

An Analysis of Sections 1, 2, 3, and 4 of the Amendment

Chapter:
(p.108) 8 An Analysis of Sections 1, 2, 3, and 4 of the Amendment
Source:
The Twenty-Fifth Amendment
Author(s):

John D. Feerick

Publisher:
Fordham University Press
DOI:10.5422/fordham/9780823252008.003.0008

Abstract and Keywords

This chapter discusses the four sections of the Twenty-Fifth Amendment. Section 1 codifies the Tyler Precedent and states, “In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.” Section 2 deals with filling vacancies in the Vice Presidency and states, “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take upon confirmation by a majority vote of both Houses of Congress.” Section 3 describes presidential inability when the president is able to discharge his duties and states, “Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.” Section 4 covers the most cases of inability – where the President cannot or does not declare his own inability.

Keywords:   Legislative history, inability, hearings, officers, Cabinet

We had more cooks with more zeal concerned with preparing this “broth” than any piece of proposed legislation I have ever seen in the time I have been in the Senate.

sam J. ervin, July 6, 19651

Section 1

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

This Section specifically confirms the Tyler precedent whereby a Vice President becomes President when there is a vacancy in the presidential office because of the President’s death.2 It also extends the precedent to cover vacancies in the presidency caused by resignation and removal after an impeachment.3 In any of these cases, the Vice President takes the presidential oath4 and serves as President for the remainder of the unexpired term.5 The contingency of “inability” is removed entirely from this Section.6

Section 2

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

The congressional debates and hearings in 1964 and 1965 established a number of underlying principles with respect to the meaning and intent of Section 2.7

(p.109) First, the “vacancy” terminology is intended as an abbreviated way of covering situations involving the death, resignation, or removal of the President or Vice President.8 When the Vice President succeeds to the presidency, he is empowered to nominate a successor.9 The legislative history is clear that an “inability” of the President resulting in the Vice President’s having to act as President is not a situation involving a vacancy in the vice presidency.10 Nor is there a vice-presidential vacancy when the Vice President becomes disabled.11 Even the inability of both the President and the Vice President does not bring Section 2 into play.12 Moreover, the legislative history is unclear whether a Speaker acting as President upon a President’s inability should nominate a new Vice President when there is no Vice President.13

Second, the use of “whenever” and “shall” is intended to make clear that the President is required to nominate a person for Vice President in the event of a vacancy.14 It is not left to his discretion whether or not to nominate, although mention was made in the 1965 House hearings of the possibility of the President’s not having to make a nomination when a vacancy occurs just prior to the end of his term.15

Third, the terminology “the President shall nominate a Vice President” contemplates that the President submit one name, not several, to Congress.16 A proposal made in 1964 for the submission of several names was not accepted for the reason, among others, that it was felt the President should have a free hand in nominating the person he believed best qualified for the office and with whom he could work most closely.17 Were the President to submit several names, it is questionable whether he would be discharging his obligation under Section 2 of nominating “a Vice President.” It is arguable that the submission of several names would in effect transfer to Congress a portion of the nominating function, which function should be exercised exclusively by the President.

In giving the President the role of initiation in filling a vice-presidential vacancy, the Amendment follows the historical practice whereby a presidential candidate has a decisive voice in the selection of his running mate.18 The Amendment’s history is replete with statements to the effect that the President should initiate the nomination to ensure a Vice President of the same party for purposes of continuity19 and of compatible temperament and views for an effective working relationship.20 The history also reflects the intent that, before making a nomination, the President seek the advice and views of congressional leaders.21

Fourth, should a President’s nomination be rejected, the legislative history is plain that the President would be obliged to nominate another person.22 No limit is placed on the number of nominations that can be made.

Fifth, frequent references are made in the history concerning the “confirmation” role of Congress, bringing into play the “advise and consent” check currently in the Constitution with respect to other appointments.23 It was contemplated that there might be occasions on which a nominee’s qualifications are so well known and readily acceptable that little debate might be required, and other occasions on which his qualifications might have to be closely scrutinized, which would involve (p.110) congressional hearings and extensive debate.24 The wording of Section 2 gives to the President and Congress the power each currently has in the process of selecting officials such as federal judges, ambassadors, and Cabinet members.*25 That Congress was to be the “voice of the people” is a concept which appears throughout the legislative history26 and was a reason for giving the House of Representatives a confirmatory role.

Sixth, the coupling of “nomination” with “confirmation” instead of the “advise and consent” language of Article II was designed to ensure that a nominee cannot act as Vice President pending congressional confirmation.27 Consequently, if a vacancy should occur when Congress is out of session, it could not be filled until the next regular session or at a special session called for that purpose by the President. Until a vacancy is filled, whoever is first in the statutory line of succession would be the heir apparent, since the Amendment leaves intact the power of Congress to establish a line of succession beyond the vice presidency.28 The statutory successor, however, would have no right to act as Vice President because under Article II, Section 1 she is limited to acting as President only.29 Thus, if at a time a vacancy in the vice presidency exists, the President should die, resign, or be removed, the Speaker, upon his resignation from Congress, would fill out the presidential term by reason of the 1947 succession statute.30 He also would have the power to nominate a Vice President, since, upon succession, he would assume the discharge of all the powers and duties of President. The Speaker’s succession to the presidency would not be affected by a pending vice-presidential nomination at the time of the presidential vacancy, as confirmation is essential to filling a vice-presidential vacancy.31 It is not entirely clear whether the intervening events would operate to render the nomination of no further effect, but since nominations made by a President who has died or resigned are treated as still valid when a Vice President succeeds, the result should be no different in the case of a vice-presidential nomination, since Section 2 was (p.111) referred to throughout its legislative history as being analogous to the present “advise and consent” process.32 It therefore would seem that upon the Speaker’s succession he could, and should, either withdraw the nomination and nominate someone else or continue the nomination.* If he continued the nomination and the nomi-nee were confirmed, that nominee would not replace the Speaker but rather would be the former Speaker’s Vice President, since in the event of a dual vacancy, the 1947 law provides for the Speaker to act as President for the rest of the established term. One interesting example given in the legislative history involves a situation in which the Speaker is nominated to fill a vice-presidential vacancy and the President dies while confirmation hearings are in progress. Under such circumstances, it was noted, the Speaker would take over the powers and duties of President for the rest of the term by virtue of the 1947 law.33

Seventh, the history of Section 2 manifests the intention that there be both a President and a Vice President at all times34 and that whenever a vacancy occurs in the latter office, both the President and Congress act with reasonable dispatch to fill it,35 putting aside partisan politics36 and seeking, as Representative Peter W. Rodino stated in the House debates of 1965, the selection of a person of the “highest character and national stature.”37 Originally, Senate Joint Res. 139 had required the President to make a nomination within thirty days of a vacancy, but the time limit was eliminated because, among other reasons, unforeseeable circumstances might prevent the President from adhering to the limit, thereby causing him to violate the Consti-tution.38 A proposal made during the Senate debates to add the word “immediately” to Section 2 was defeated largely because of the concern that it might prevent Congress from conducting a proper investigation of a nominee’s background.39

Eighth, the phrase “by a majority vote of both Houses of Congress” is similar to that used elsewhere in the Constitution40 and is designed to make clear that each House votes separately on a nomination and that the required vote in each is a majority of those members present and voting, provided there is a quorum.41 A proposal for a two-thirds vote was rejected because it was thought to give too much control to those who might oppose a President.42

Ninth, the legislative history also is clear that a nominee for Vice President must meet the constitutional qualifications of being a natural-born citizen of the United (p.112) States, at least thirty-five years of age, and a resident within the United States for a minimum of fourteen years.43 Although under the Twelfth Amendment the presidential electors of a state must cast one of their two votes for an inhabitant of another state, a President is not prevented under the Twenty-Fifth Amendment from nomi-nating an inhabitant of his own state.44

Tenth, a Vice President selected under the Twenty-Fifth Amendment occupies the same status as an elected Vice President.45 Thus, when an appointed Vice President succeeds to the presidency, as Gerald R. Ford did in 1974, he may also use the procedures of Section 2.

Section 3

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

This Section is designed to make clear that in a case of presidential inability the Vice President simply discharges the powers and duties of the presidency; he assumes neither the office nor the title of President. Rather, he remains the Vice President, exercising presidential power, under the title of Acting President.46 Accordingly, this Section solves the problem first raised by John Tyler’s succession to the presidency.

Although the terms “unable” and “inability” are nowhere defined in either Section 3 or 4 of the Amendment (or in Article II), this was not the result of an over-sight. Rather, it reflected a judgment that a rigid constitutional definition was undesirable, since cases of inability could take various forms not neatly fitting into such a definition.47 The presence of a definition would only give rise to difficult questions of interpretation at a time when the country was confronted with a case of inability. The debates surrounding the Twenty-Fifth Amendment indicate that the terms “unable” and “inability” are intended to cover all cases in which some condition or circumstance prevents the President from discharging his powers and duties and the public business requires that the Vice President discharge them.48 Situations involving physical and mental illness, temporary or permanent, were the most frequently mentioned cases covered by the expression.49

Section 3 deals with a case in which the President recognizes his own inability and wishes to suspend temporarily his exercise of the powers and duties of President.50 It involves a personal judgment on the part of the President.51 As Representative Richard C. White of Texas noted in the House debates of April 13, 1965, “There is no requirement that a reason be given other than that the President is ‘unable’ to act. ….”52

(p.113) The legislative history of Section 3, however, leaves no dispute about the specific types of cases contemplated. It was intended to cover situations such as the President’s entering a hospital for an operation or other medical attention, or going abroad where he might be out of effective communication with the White House.53 Said former Attorney General Herbert Brownell during the House hearings:

A typical situation that is covered by this section is one in which the President is physically ill and his doctors recommend temporary suspension of his normal governmental activities, to facilitate his recovery.

Other situations that have been visualized are those where the President might be going to have an operation, or where he was going abroad and might be out of reliable communication with the White House for a short period.54

Under Section 3 a President is permitted to declare himself disabled either for an indefinite or a specified period of time and to name the hour when the Vice President is to begin as Acting President.55 The declaration could even be conditional and prospective in nature, stating, for example: “[I]f in the event I am under anes-thesia or similarly unable, I wish you to assume those duties.…”56 Once the Vice President commences his role as Acting President, the Amendment contemplates that he would continue in such capacity until the President terminates it by a sub-sequent declaration of recovery.

Whether Section 3 is broad enough to cover the case of a President’s deciding to step aside temporarily—as was suggested during President Richard M. Nixon’s last year in office57—in order to devote his full time to his defense against impeachment and removal is a debatable question. Although such a use of the Amendment was never mentioned by the Congress that proposed it, it probably would not be beyond the scope of Section 3, since the Section was intended to be broadly interpreted. However, Section 3 does not provide a mechanism for a President to step aside temporarily without justification, thereby neglecting his duties.

Section 3 encourages a President to declare his own inability since, if he does, his declaration of restoration to capacity is not subject to the challenge procedures of Section 4.58 “A President would always hesitate to utilize the voluntary mecha-nism if he knew that a challenge could be lodged when he sought to recapture his office [i.e., its powers and duties].”59

The Vice President becomes Acting President as soon as the President transmits a written declaration of inability to the President pro tempore and to the Speaker, or, as the case may be, at the time or under the circumstances specified in the declaration. He ceases to be Acting President as soon as the President transmits his written declaration of recovery to these two officials.60 Whenever the Vice President is called upon to act as President, he loses his title as President of (p.114) the Senate.*61 Whether the Vice President would be required to take the presidential oath before serving as Acting President is not entirely clear. The limited legislative history on this point suggests that the President’s oath need not be taken.62 It would seem that it should not, since the Vice President does not become President and the duty of acting as President is encompassed by his vice-presidential oath to perform his duties faithfully.

The legislative history also is not clear on whether the Vice President would be entitled to a presidential salary during the period he serves as Acting President. Given that he does not become President, it would seem that he should not be so paid, although there is legislative history to the contrary.63 The succession statute of 1947 specifically provides for a statutory successor to be paid at the presidential salary rate in all cases (i.e., death, resignation, removal, and inability), and Con-gress could, of course, legislate a similar provision with respect to a Vice President who acts as President in a case of inability.

Because of its flexibility, Section 3 is likely to be used in most cases of presiden-tial inability.

Section 4

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress (p.115) is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

This Section, like Section 3, provides for an Acting President in a case of inability. It should be noted, however, that the inability procedures of these sections do not apply to the inability of a Vice President, or of a Vice President as Acting President, or to a case of simultaneous inabilities of the President and Vice President when the Speaker is designated to serve as President.*64

Section 4 covers the most difficult cases of inability—when the President cannot or does not declare his own inability.65 Cases involving a mental inability were commonly referred to as falling within this section,66 as were situations in which the President is kidnapped or captured, under an oxygen tent at a time of an enemy attack, or bereft of speech or sight.67

As for the cases falling within this Section, Senator Bayh said in the Senate debates of February 19, 1965:

[T]he word “inability” and the word “unable” as used in [Section 4] …, which refer to an impairment of the President’s faculties, mean that he is unable either to make or communicate his decisions as to his own competency to execute the powers and duties of his office. I should like for the record to include that as my definition of the words “inability” and “unable.”68

In the Senate debates of June 30, 1965, Senators Bayh and Robert F. Kennedy referred to cases involving physical or mental inability to make or communicate a decision regarding incapacity and physical or mental inability to exercise the powers and duties of office. The following important exchange took place between Kennedy and Bayh:

MR. KENNEDY of New York. Is it not true that the inability to which we are referring in the proposed amendment is total inability to exercise the powers and duties of the office?

MR. BAYH. The inability that we deal with here is described several times in the amendment itself as the inability of the President to perform the powers and duties of office.

It is conceivable that a President might be able to walk, for example, and thus, by the definition of some people, might be physically able, but at (p.116) the same time he might not possess the mental capacity to make a decision and perform the powers and duties of his office. We are talking about inability to perform the constitutional duties of the office of President.

MR. KENNEDY of New York. And that has to be total disability to perform the powers and duties of the office.

MR. BAYH. The Senator is correct. We are not getting into a position, through the pending measure, in which when a President makes an unpopular decision, he would immediately be rendered unable to perform the duties of his office.

MR. KENNEDY of New York. Is it limited to mental inability to make or communicate his decision regarding his capacity and mental inability to perform the powers and duties prescribed by law?

MR. BAYH. I do not believe that we should limit it to mental disability. It is conceivable that the President might fall into the hands of the enemy, for example.

MR. KENNEDY of New York. It involves physical or mental inability to make or communicate his decision regarding his capacity and physical or mental inability to exercise the powers and duties of his office.

MR. BAYH. The Senator is correct. That is very important. I would refer the Senator back to the definition which I read into the RECORD at the time the Senate passed this measure earlier this year.

MR. KENNEDY of New York. It was that definition which I was seeking to reemphasize. May I ask one other question? Is it not true that the inability referred to must be expected to be of long duration or at least one whose duration is uncertain and might persist?

MR. BAYH. Here again I think one of the advantages of this particular amendment is the leeway it gives us. We are not talking about the kind of inability in which the President went to the dentist and was under anesthesia. It is not that type of inability we are talking about, but the Cabinet, as well as the Vice President and Congress, are going to have to judge the severity of the disability and the problems that face our country.

MR. KENNEDY of New York. Is it not true that what we are talking about here as far as inability is concerned, is not a brief or temporary inability?

MR. BAYH. We are talking about one that would seriously impair the President’s ability to perform the powers and duties of his office.

MR. KENNEDY of New York. Could a President have such inability for a short period of time?

MR. BAYH. A President who was unconscious for 30 minutes when missiles were flying toward this country might only be disabled temporarily, but it would be of severe consequence when viewed in the light of the problems facing the country.

(p.117) So at that time, even for that short duration, someone would have to make a decision. But a disability which has persisted for only a short time would ordinarily be excluded. If a President were unable to make an Executive decision which might have severe consequences for the county, I think we would be better under the conditions of the amendment.69

In the House debates of April 13, 1965, Representative Richard Poff said that Section 4 provides for two categories of cases: (1) when the President “by reason of some physical ailment or some sudden accident is unconscious or paralyzed and therefore unable to make or to communicate” a decision; and (2) “when the President, by reason of mental debility[,] is unable or unwilling to make any rational decision, including particularly the decision to stand aside.”70

At various times in the debates and hearings of 1964 and 1965, it was made clear that unpopularity, incompetence, impeachable conduct, poor judgment, and laziness do not constitute an “inability” within the meaning of the Amendment.71 As Senator Bayh stated in the Senate debates of February 19, 1965:

The Senator from Indiana agrees with the Senator from Michigan [Philip A. Hart] that we are not dealing with an unpopular decision that must be made in time of trial and which might render the President unpopular. We are talking about a President who is unable to perform the powers and duties of his office.72

Under Section 4, the Vice President and a majority* of the “principal officers of the executive departments” (popularly known as the Cabinet) are empowered to declare the President disabled by transmitting a written declaration of this fact to the President pro tempore and to the Speaker.73 Few subjects received as much at-tention as that of the composition of the Cabinet. The debates make clear that the following ten officials were intended, plus the head of any executive department established after July 1965: Secretaries of State; Treasury; Defense; Interior; Agriculture; Commerce; Labor; and Health, Education and Welfare; the Attorney General, and the Postmaster General.74 The following were not intended: the U.S. Representative to the United Nations; the Secretaries of the Army, Navy, and the Air Force; the Director of the Poverty Program; and the head of the Atomic Energy Commission.75 Whether an Under Secretary can participate as a member of the Cabinet when there is a Cabinet vacancy was dealt with by the House Judiciary Committee in its report:

(p.118) In case of the death, resignation, absence, or sickness of the head of any executive department, the acting head of the department would be authorized to participate in a presidential inability determination.*76

A different view was expressed in the Senate debates of February 19, 1965;77 but the view of the House Judiciary Committee, which the author believes to be the correct one, was articulated by Senator Robert Kennedy in the Senate debates of June 30, 1965,78 and was assumed by a number of senators on both June 30 and July 6, 1965, when the discussion centered on the firing and replacement of Cabinet members.79 These later debates, as well as the earlier Senate debate, also indicate that a recess appointee to the Cabinet would be able to participate in the determination of in-ability.80 With respect to the Senate debate of February 19 and the statement that an Under Secretary would not participate when there is a vacancy, it should be noted that the principal subject of discussion concerned not vacancies but whether the expression “heads of the executive departments” included subdivision and bureau heads. Indeed, a memorandum from the Library of Congress was placed in the record to indicate that the latter were not intended to be included.81

Under Section 4 the declaration of inability probably would be a joint one, although the Vice President and Cabinet might choose to send separate declarations.82 In answer to the question concerning the way in which a written declaration might be prepared under Section 4, Brownell stated:

Undoubtedly the Justice Department would prepare the papers, and the action would be taken at a joint meeting of the Vice President and the Cabinet members. It might not even be a matter of public knowledge as to who signed first. That particular point would fade into insignificance in getting the group action.83

The question of whether an inability had occurred could be initiated for discussion purposes by the Vice President or by any member of the Cabinet.84

Upon the transmittal of a declaration of inability to the Speaker and the President pro tempore, the Vice President immediately takes over as Acting President and is entitled to discharge all the powers and duties of President.85 It makes no difference if Congress is not in session at the time of such transmittal.86 During the period in which the Vice President serves as Acting President, the President is prevented from exercising his powers and duties.87

Once the President announces his recovery by transmitting an appropriate written declaration to the Speaker and the President pro tempore, he then must wait four days before resuming his powers and duties.88 In the meantime, the Vice (p.119) President continues to act as President,89 and he and the Cabinet have an opportunity to review the situation. Either the Vice President alone or the Cabinet and Vice President can agree to the President’s taking over immediately or at any time short of four days.90 If they disagree with the President’s declaration of recovery, they are required to send, within four days, a written declaration of that fact to the President pro tempore and the Speaker, and Congress then is required to decide the issue, with each House meeting separately.91 If there is a disagreement between the Vice President and the Cabinet about the President’s recovery, the issue is not appropriate for Congress to decide and the President then resumes his powers and duties. Agreement between the Vice President and the Cabinet that the President has not recovered is a condition which must precede congressional consideration.92 If Congress is not in session at the time an issue of disagreement is raised, it is obliged to assemble within forty-eight hours from the time the Vice President and the Cabinet transmit their declaration to the President pro tempore and the Speaker. It is incumbent upon the Vice President as Acting President to fix a certain time within forty-eight hours when Congress must assemble.93 If he fails to do so, the President pro tempore and the Speaker are obliged to call their respective House into session within the forty-eight-hour period.94 Upon their failure to do so, Con-gress must come into session within forty-eight hours on its own initiative.95

Congress has twenty-one days from the date of receipt of the transmittal, if it is in session, or from the time it is required to assemble, if not in session, in which to decide a disagreement issue.96 Pending the decision of Congress, the Vice President continues to act as President, so that the powers and duties of President will not be in the hands of a person whose capacity has been seriously challenged.*97 Furthermore, by allowing the Vice President to continue as Acting President during this period, there would be fewer transfers of power and more continuity. Otherwise, there would/could be a ping-pong sort of situation wherein the Vice President takes over as a result of an inability declaration, the President returns immediately by making a recovery declaration, and the Vice President returns by virtue of Con-gress’s decision in his favor on the disagreement issue.98

Congress has three choices under the twenty-one-day limitation: to decide in favor of the President; to decide in favor of the Vice President; or to reach no decision at all.99 Said Poff of the last decision:

(p.120) Circumstances may be such that the Congress by tacit agreement may want to uphold the President in some manner which will not amount to a public rebuke of the Vice President who is then Acting President. … [This] option furnishes the graceful vehicle.100

If Congress fails to reach a decision within this time, or if more than one-third of either House sides with the President, the President automatically reassumes his powers and duties.101 “[I]f one House voted but failed to get the necessary two-thirds majority, the other House would be precluded from using the 21 days and the President would immediately resume the powers and duties of his office.”102 The twenty-one-day limit is an outside limitation, it being the Amendment’s intent that Congress act as speedily as possible under the circumstances presented. If Congress fails to act until the twenty-second day, its decision will be of no effect, since the President automatically would have resumed the discharge of his powers and duties at the end of the twenty-first day. Of course, the Vice President and the Cabinet would have the power to reactivate the procedures of Section 4, since there is no limit on the number of times those procedures can be used. The two-thirds vote is of those present and voting, provided there is a quorum.103 In deciding the issue, Congress can proceed as it thinks best. It can prescribe rules governing the process.104 Thus, it may request that the President undergo medical tests and examinations or submit to questioning at hearings.105 As Senator Roman Hruska said:

Obviously, such a decision must rest on the relevant and reliable facts regarding the President’s physical or mental faculties. It must be divorced from any thoughts of political advantage, personal prejudice, or other extraneous factors.106

If a challenge is resolved in favor of a Vice President by a two-thirds vote of both Houses,* he continues as the Acting President until the President recovers from his inability. Since an inability decision does not result in the President’s removal from office, there is nothing to prevent him, after an adverse congressional decision, from issuing another recovery declaration, thereby activating the process again.107 The debates indicate that a congressional decision supporting either the President or Vice President is not subject to judicial review.108

If future circumstances indicate that the Cabinet is not a workable body, Congress has the power under Section 4 to entrust to another body the responsibility of deciding, with the Vice President, a question of presidential inability.109 This power can be exercised even in the midst of a case of presidential inability as, for example, when a Cabinet refuses to declare an obviously sick President unable.110 But any (p.121) legislation adopted by Congress is subject to the President’s veto power.111 The debates make clear that Congress’s power with respect to the creation of “another body” is vast. It can designate itself,112 expand or restrict the membership of the Cabinet,113 combine the Cabinet with other officials,114 require a unanimous vote of the body established by law,115 and prescribe the rules and procedures to be followed by that body.116 As Senator Jacob Javits stated:

Congress has the right to provide for the exclusivity of that body in exercising this authority, as well as the way in which the body shall exercise that authority, and other pertinent details necessary to the creation of such a body, its continuance, its way of meeting, the rules of the procedure, and the way in which it shall exercise its power.117

This power, however, cannot be exercised to replace the Vice President.118 The legislative history of the “other body” provision clearly shows that, when Congress designates such a body, it replaces the Cabinet as the group that must act in conjunction with the Vice President.119 In this connection, it must be emphasized that the provisions of Sections 3 and 4 cannot operate without a Vice President. He is the key to the effectiveness of the procedures prescribed in the Amendment.120

During the hearings and debates, criticism was voiced that the President could discharge Cabinet members before they had a chance to declare him disabled, thus nullifying that prescribed method.121 While the possibility of removal is there, if a President were to act in such a manner, Congress could cope with the situation by exercising its power under Section 4 to establish another body. Another observation was that a Vice President acting as President would have the presidential powers of appointing and removing Cabinet members during his tenure as Acting President.122 Should he use these powers for the purpose of stacking the Cabinet in his favor, the President, having declared himself disabled under Section 3, could regain his powers and duties immediately by a declaration of recovery. If the President were declared disabled under Section 4, he could issue a recovery declaration and, assuming a challenge by the Vice President and the Cabinet within four days, could get Congress to pass on the issue. Congress certainly would not look favor-ably on a Vice President who had acted in an irresponsible manner.

The record is replete with suggestions that irresponsible behavior also might subject a Vice President to impeachment.123

This chapter is taken essentially from my article “The Proposed Twenty-Fifth Amendment to the Constitution,” 34 Fordham Law Review 173, 196–202 (1965), which was reprinted and made part of the “Selected Materials on the Twenty-Fifth Amendment” in the October 1973 Report of the Senate Constitutional Amend-ments Subcommittee.

Notes:

(*) However, not all aspects of the “advise and consent” process were intended to be applicable to the nomination of a new Vice President. The involvement of both Houses of Congress was intended to give Congress a more active role in the selection of a Vice President than the Senate’s role in confirming or rejecting other presidential nominations. Second, the use of the term “confirmation” in Section 2 was intended to achieve another distinction between the “advise and consent” process and that of selecting a new Vice President. See text accompanying note 27, infra. Third, the rule that the President is under no duty to appoint an officer approved by the Senate would not be applicable, since the selection of a Vice President under the Twenty-Fifth Amendment involves only the steps of nomination and confirmation. Presidential nominations made under Article II involve the steps of nomination, senatorial advice and consent, appointment by the President, and commissioning by the President. See Marbury v. Madison, 1 Cranch 137, 155–57 (1803); see Can the President appoint and sign commissions of persons who have been nominated and confirmed during the administration of his predecessor, Department of Justice, Nov. 26, 1963 (informal staff memorandum).

() See 1975 Review hearings, infra, and note. In her treatise, Ruth Silva takes the position that the law of 1947 “is based on two irreconcilable premises. It recognizes a designated officer as becoming President by providing for his resignation from his legislative or Cabinet post. At the same time it denies that he becomes President by failing to give him the tenure [i.e., four years] which the Constitution guarantees to a President. It is submitted that this contradiction is rather blatant.” Silva, Presidential Succession 142.

(*) Under Rule 38.6 of the Standing Rules of the Senate, a presidential nomination under Art. II continues until it is returned to the President as rejected by the Senate, not acted upon when the Congress adjourns for thirty days or more, or withdrawn by the President. There is no similar House rule since, until the Twenty-Fifth Amendment, it had no role in the nomination process. If a vacancy should occur in the Office of the President while a vice-presidential nomination is pending, it can reasonably be argued that the nomination should subsist in accordance with the general practice of the Senate with respect to other presidential nominations. For a contrary view, see the testimony of Assistant Attorney General Antonin Scalia. Hearing on the First Implementation of Section Two of the Twenty-Fifth Amendment Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 94th Cong, 1st Sess. 51–55 (1975): but see the 1975 Report of the subcommittee at 5.

(*) The President pro tempore serves in that capacity in the interim, because of U.S. Const. art. I, § 3, cl. 5, which provides: “The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.”

() See pages 196–203, infra.

(*) Language to deal with these contingencies was placed in the record by Representative Poff. Hearings on Presidential Inability and Vice Presidential Vacancy Before the House Comm. on the Judiciary, 89th Cong., 1st Sess. 86 (1965).

(*) A “Majority” and not unanimous action was decided upon in order to take care of a situation in which one member “might be entirely out of sympathy with the national administration.” 1965 House Hearings 248.

(*) It also should be pointed out that 5 U.S.C. § 4 (1964) specifically provides that, in the case of the death, resignation, absence, or sickness of a department head, the first assistant of the department shall, unless otherwise directed by the President, perform the duties of the head.

(*) During the hearings Attorney General Katzenbach observed: “Now, I suppose the two problems that one is dealing with are the risk to the country of a period, however short, where a President who really is unable nonetheless declares ability, and the problem, how quick the congressional action could be gotten in that situation and the risk to the country in that period of time, as against the problem that you raised, Mr. Chairman, of the usurper, which is the traditional fear of Vice Presi-dents in exercising their power, that they would be so regarded.” Hearings on Presidential Inability and Vacancies in the Office of Vice President Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 89th Cong., 1st Sess. 17 (1965).

(*) This requirement is even more strict than that in the case of impeachment since only a simple majority vote to impeach is required of the House of Representatives.

(1) . 111 CONG. REC. 15,594–95 (1965) (statement of Senator Sam J. Ervin).

(2) . Hearings on Presidential Inability and Vacancies in the Office of Vice President Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 89th Cong. 8, 86 (1965) [hereinafter 1965 Senate Hearings]; Hearings on Presidential Inability and Vice Presidential Vacancy Before the House Comm. on the Judiciary, 89th Cong. 40 (1965) [hereinafter 1965 House Hearings]; S. REP. No. 89-66, at 12 (1965); H.R. REP. No. 89-203, at 12 (1965); 111 CONG. REC. 7942, 7953, 7955, 15378 (1965).

(3) . 1965 Senate Hearings 8; Hearings on Presidential Inability and Vacancies in the Office of Vice President Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 88th Cong. 68 (1964) [hereinafter 1964 Senate Hearings]; S. REP. No. 88-1382, at 11 (1964).

(4) . 1965 Senate Hearings, supra note 2, at 8.

(5) . Id., at 106; 109 CONG. REC. 24,420 (1963) (Bayh).

(6) . S. REP. No. 89-66, at 12 (1965).

(7) . The author collected this legislative history in a memorandum dated September 24, 1973, to Senator Bayh, that was reprinted in S. Doc. No. 93–42, Selected Materials on the Twenty-Fifth Amendment, 93d Cong., 1st Sess. 279–300 (1973).

(8) . 1965 House Hearings, supra note 2, at 44, 87, 196, 246; H.R. REP. No. 89-203, at 18 (1965); 111 CONG. REC. 3252 (1965) (Bayh); 1964 Senate Hearings, supra note 3, at 68; 109 CONG. REC. 24,421 (1963) (Bayh).

(9) . 111 CONG. REC. 3253–56 (1965).

(10) . 1965 House Hearings, supra note 2, at 87, 192–93, 239, 246; 111 CONG. REC. 3253 (1965) (Bayh, Hruska).

(11) . 111 CONG. REC. 3253 (1965) (Bayh, Hruska).

(12) . 1965 House Hearings, supra note 2, at 77–78; 111 CONG. REC. 3265–68 (1965) (Dirksen).

(13) . 111 CONG. REC. 3253 (1965) (Bayh, Hruska).

(14) . S. REP. No. 88-1382, at 13 (1964).

(15) . 1965 House Hearings, supra note 2, at 65–66.

(16) . 111 CONG. REC. 7955 (1965) (Rodino); 110 Cong. Rec. 22,988, 22,996, 22,999 (1964).

(17) . For relevant proposals, see H. J. RES. No. 88-818 (1963); H.R. RES. No. 88-9305, 88th Cong., 1st Sess. (1963).

(18) . 1965 Senate Hearings, supra note 2, at 62; 1964 Senate Hearings, supra note 3, at 4, 68, 137; 109 CONG. REC. 24,421 (1963) (Bayh).

(19) . 1965 Senate Hearings, supra note 2, at 62, 64; 1965 House Hearings, supra note 2, at 179; 111 CONG. REC. 3255, 3262 (1965); 1964 Senate Hearings, supra note 3, at 4, 226; S. REP. No. 88-1382, at 13 (1964); 110 CONG. REC. 22,988 (1964) (Ervin); 109 CONG. REC. 24,421 (1963) (Bayh). One of the reasons for the rejection of the (p.366) proposal that Congress select a new Vice President was that it might not ensure a member of the same party as the President’s. 1964 Senate Hearings, supra note 3, at 28, 89.

(20) . 1965 Senate Hearings, supra note 2, at 11, 106; S. REP. No. 89-66, at 15 (1965); H.R. REP. No. 89-203, at 15 (1965); 111 CONG. REC. 3255 (Bayh), 3262 (Fong) (1965); 1964 Senate Hearings, supra note 3, at 4, 60, 121, 138; S. REP. No. 88-1382, at 13 (1964); 110 CONG. REC. 22,988 (Bayh), 22,994 (Fong), 23,060 (Bayh) (1964).

(21) . 1965 House Hearings, supra note 2, at 210; 1964 Senate Hearings, supra note 3, at 130–31.

(22) . 1965 House Hearings, supra note 2, at 50, 54; 1964 Senate Hearings, supra note 3, at 62, 205.

(23) . 1965 House Hearings, supra note 2, at 89, 92; 111 CONG. REC. 3275 (1965) (Bayh); 1964 Senate Hearings, supra note 3, at 68.

(24) . 1965 House Hearings, supra note 2, at 256; 1964 Senate Hearings, supra note 3, at 39, 62, 81, 218; 110 CONG. REC. 22,996 (1964) (Monroney).

(25) . 1965 House Hearings, supra note 2, at 45, 49, 89.

(26) . 1965 Senate Hearings, supra note 2, at 11; 1965 House Hearings, supra note 2, at 179; 111 CONG. REC. 3255–56 (1965) (Ervin); 1964 Senate Hearings, supra note 3, at 60; 110 CONG. REC. 22,994 (Bible), 22,996 (Bayh) (1964).

(27) . 1965 House Hearings, supra note 2, at 45; 111 CONG. REC. 7955 (1965) (Rodino).

(28) . 111 CONG. REC. 7951 (Mathias), 7960 (Poff) (1965).

(29) . 1965 House Hearings, supra note 2, at 49, 78.

(30) . 1965 Senate Hearings, supra note 2, at 102; 1965 House Hearings, supra note 2, at 48; 111 CONG. REC. 3281 (Ervin), 7960 (Poff) (1965); 110 CONG. REC. 22,995 (1964) (Bayh).

(31) . 1965 House Hearings, supra note 2, at 47, 49–50; 111 CONG. REC. 3281–82 (Bass), 7961 (Rogers) (1965).

(32) . 1965 House Hearings, supra note 2, at 45, 49, 89.

(33) . 1965 House Hearings, supra note 2, at 50.

(34) . 111 CONG. REC. 3252 (Bayh), 7949 (Cohelan), 7953 (Bennett), 7960 (Celler) (1965).

(35) . 1965 Senate Hearings, supra note 2, at 64; 1965 House Hearings, supra note 2, at 66; 111 CONG. REC. 7962 (Lindsay) (1965); 1964 Senate Hearings, supra note 3, at 229.

(36) . 1965 House Hearings, supra note 2, at 47; 111 CONG. REC. 3275 (1965) (Bayh); 1964 Senate Hearings 226; 110 CONG. REC. 22,988 (Bayh), 22,996 (Bayh), 22,999 (Church) (1964).

(37) . 111 CONG. REC. 7955 (1965). An almost identical view had been expressed earlier by Senator Bayh. 110 CONG. REC. 22,987 (1964).

(p.367) (38) . 1965 House Hearings, supra note 2, at 65–66.

(39) . See pp. 93–94, supra.

(40) . E.g., U.S. CONST. art. V; See Missouri Pac. Ry. Co., v. State of Kansas, 248 U.S. 276 (1919).

(41) . 1965 Senate Hearings, supra note 2, at 10, 52, 64; 1965 House Hearings, supra note 2, at 45, 60, 95–96, 101, 106; 111 CONG. REC. 7944–46 (1965).

(42) . 1965 Senate Hearings, supra note 2, at 19.

(43) . 1965 House Hearings, supra note 2, at 48–49; S. REP. No. 89-66, at 14 (1965); H.R. REP. No. 89-203, at 14 (1965).

(44) . 1965 Senate Hearings, supra note 2, at 18. This question was raised after Vice President Spiro Agnew’s resignation, when Ronald Reagan was being mentioned as President Nixon’s possible vice-presidential choice. Wallace Turners, Choice of Reagan Called Unlikely; Constitutional Question and Nixon’s Coolness Cited by Some Observers Interpretation Given Reagan Not Told, N.Y. TIMES, Oct. 11, 1973 at 35.

(45) . 1965 House Hearings, supra note 2, at 208.

(46) . 111 CONG. REC. 7953 (1965) (Gilbert); 1964 Senate Hearings, supra note 3, at 224–32; Hearings on Presidential Inability Before the Subcomm. on Constitutional Amendments of the Senate Comm. on the Judiciary, 88th Cong. 33, 38 (1963) [hereinafter 1963 Senate Hearings].

(47) . 111 CONG. REC. 7938 (Celler), 7941 (Poff) (1965).

(48) . 1965 Senate Hearings, supra note 2, at 20; 1965 House Hearings, supra note 2, at 40; 1964 Senate Hearings, supra note 3, at 215; 1963 Senate Hearings, supra note 46, at 49, 106 & n. 44.

(49) . E.g., 1964 Senate Hearings, supra note 3, at 60; 1963 Senate Hearings, supra note 46, at 106 & n. 44; see Ruth C. Silva, Presidential Succession 171 (1951).

(50) . 111 CONG. REC. 1946–47 (1965) (McClory).

(51) . 1965 House Hearings, supra note 2, at 179.

(52) . 111 CONG. REC. 7958 (1965).

(53) . 1965 Senate Hearings, supra note 2, at 9, 20, 64–65; 1965 House Hearings, supra note 2, at 40; 111 CONG. REC. 3265, 7941 (Poff), 7946–47 (McClory), 7955 (Rodino) (1965); 1964 Senate Hearings, supra note 3, at 136; 1963 Senate Hearings, supra note 46, at 22.

(54) . 1965 House Hearings, supra note 2, at 240.

(55) . 1965 Senate Hearings, supra note 2, at 20–21, 64–65; 1965 House Hearings, supra note 2, at 96–99, 240.

(56) . 1965 House Hearings, supra note 2, at 99.

(57) . Williams, An Alternative: Taking the Twenty-Fifth, National Review 476 (1974). See John D. Feerick, The Way of the 25th, N.Y. TIMES, Dec. 13, 1973 at 47. See also infra chapter 10 notes 25–28.

(p.368) (58) . 1965 House Hearings, supra note 2, at 264–65; S. REP. No. 89-66, at 3 (1965); H.R. REP. No. 89-203, at 2 (1965); 111 CONG. REC. 7938 (Celler), 7941 (Poff), 7943 (Horton), 7953 (Gilbert), 7956 (Randall), 15,214 (Poff), 15,378 (Bayh) (1965). There was confusion early in the legislative history on whether a President who had voluntarily declared his own inability nevertheless was subject to the challenge procedures of Section 4 (then Section 5). Compare 1965 House Hearings, supra note 2, at 41–42, 99, with 111 CONG. REC. 3252–53 (Bayh), 3271 (Bayh) (1965). The House amendment to Section 3 eliminated this doubt. 111 CONG. REC. 15,214 (1965).

(59) . 111 CONG. REC. 7941 (1965) (Poff).

(60) . See S. REP. No. 89-66, at 2 (1965) for an excellent summary of the congressional intent regarding written declarations.

(61) . 111 CONG. REC. 3270 (1965) (Saltonstall).

(62) . 1964 Senate Hearings, supra note 3, at 215, 232; 1965 House Hearings, supra note 2, at 87. But see 111 CONG. REC. 7950 (1965) (Moore). To be noted is that when Vice President Bush acted as President in 1985 and Vice President Cheney in 2002 and 2007 they did not take the presidential oath of office.

(63) . 1965 House Hearings, supra note 2, at 88.

(64) . 111 CONG. REC. 3253 (1965) (Hruska, Bayh); 1965 House Hearings, supra note 2, at 77–78, 193.

(65) . 1965 Senate Hearings, supra note 2, at 9; 111 CONG. REC. 3254 (Bayh), 3282–83, 7938 (Celler), 15,380 (Kennedy) (1965); 1964 Senate Hearings, supra note 3, at 44; 109 CONG. REC. 24,421 (1963).

(66) . 111 CONG. REC. 3256 (Ervin), 7941 (Poff), 7947 (McClory), 15,593 (Bayh) (1965).

(67) . 1965 House Hearings, supra note 2, at 141; 111 CONG. REC. 3265 (Carlson), 3271 (Bayh), 7938 (Celler) (1965).

(68) . 111 CONG. REC. 3282 (1965).

(69) . Id. at 15,381.

(70) . Id. at 7941.

(71) . Id. at 3282–83 (Hart); 1964 Senate Hearings, supra note 3, at 25.

(72) . 111 CONG. REC. 3283 (1965).

(73) . Id. at 7938 (Celler).

(74) . Id. at 7938 (Waggonner), 7941 (Poff), 7944–45 (Whitener), 7952, 7954 (Gilbert).

(75) . 1965 House Hearings, supra note 2, at 52, 61.

(76) . H.R. REP. No. 89-203, at 3 (1965).

(77) . 111 CONG. REC. 3284 (1965) (Hart).

(78) . Id. at 15,380.

(79) . Id. (Kennedy), 15,382 (Kennedy), 15,385 (Javits).

(80) . Notes 78 and 79, supra; 111 CONG. REC. 3284 (1965) (Bayh, Hart).

(p.369) (81) . 1965 House Hearings, supra note 2, at 52, 61.

(82) . 1965 House Hearings, supra note 2, at 79–80; 111 CONG. REC. 15,385 (1965) (Bayh, Javits).

(83) . 1965 House Hearings, supra note 2, at 247.

(84) . 1965 Senate Hearings, supra note 2, at 65; 1965 House Hearings, supra note 2, at 79–80, 82.

(85) . 1965 House Hearings, supra note 2, at 40, 64–65, 87–88; 111 CONG. REC. 7956 (1965) (Randall).

(86) . 111 CONG. REC. 3270 (Saltonstall, Ervin), 7956 (Randall) (1965).

(87) . See supra note 85.

(88) . 111 CONG. REC. 15,214 (Poff), 15,378–79 (Bayh) (1965); S. REP. No. 89-66, at 14 (1965); H.R. REP. No. 89-203, at 14 (1965).

(89) . 111 CONG. REC. 3284 (Bayh), 3285 (Allot), 7939 (Celler) (1965); 1965 House Hearings, supra note 2, at 41, 58, 250, 253.

(90) . 1965 House Hearings, supra note 2, at 99, 107, 243; 111 CONG. REC. 3285 (Bayh), 15,214 (Poff) (1965). As for declarations’ taking longer than four days, see 1965 House Hearings, supra note 2, at 242–43.

(91) . See supra, note 41; 1965 Senate Hearings, supra note 2, at 52, 71; 111 CONG. REC. 3285 (Hruska), 7944 (Whitener, Celler), 7946 (Hutchinson, Celler) (1965).

(92) . 111 CONG. REC. 7941 (Poff), 15,379 (Bayh) (1965).

(93) . 1965 House Hearings, supra note 2, at 100; 111 CONG. REC. 7967 (1965) (Poff, Celler).

(94) . 1965 House Hearings, supra note 2, at 100; S. REP. No. 89-66, at 2 (1965); 111 CONG. REC. 3270, 7967 (Poff), 7968 (McCormack) (1965).

(95) . S. REP. No. 89-66, at 2 (1965); 111 CONG. REC. 7968 (1965) (McCormack).

(96) . H.R. REP. No. 89-564, at 4 (1965).

(97) . 1965 House Hearings, supra note 2, at 41, 58, 250, 253; 111 CONG. REC. 3284–85 (Lausche, Bayh), 7939 (Celler); 1964 Senate Hearings, supra note 3, at 130.

(98) . 111 CONG. REC. 3284 (1965) (Bayh).

(99) . Id. at 7941 (Poff).

(100) . Id.

(101) . 111 CONG. REC. 3279 (Bayh), 15,214 (Poff), 15,379 (Bayh) (1965); H.R. REP. No. 89-564, at 4 (1965).

(102) . 111 CONG. REC. 15,379 (1965) (Bayh).

(103) . 1965 House Hearings, supra note 2, at 243.

(104) . S. REP. No. 89-66, at 3 (1965); 111 CONG. REC. 3285 (Bayh), 15,385 (Javits, Bayh) (1965).

(105) . 1965 Senate Hearing, supra note 2, at 21–22; S. REP. No. 89-66, at 3 (1965); 111 CONG. REC. 3278–79, 7939, 7954 (1965); 1964 Senate Hearings, supra note 3, at 119. On the question of the President asserting doctor–patient confidentiality, see 1965 House Hearings, supra note 2, at 143–44.

(p.370) (106) . 1965 Senate Hearings, supra note 2, at 34.

(107) . 1965 House Hearings, supra note 2, at 101–02, 251 (frequent declarations).

(108) . 111 CONG. REC. 15,588 (Ervin) (1965). The debates, however, indicate that questions involving the constitutionality of legislation passed by Congress under Section 4 would be appropriate for judicial review. 111 Cong. Rec. 15,386 (Javits), 15,594 (Bayh) (1965).

(109) . 1965 Senate Hearings, supra note 2, at 52, 61; 1965 House Hearings, supra note 2, at 45, 241, 253; S. REP. No. 89-66, at 14 (1965); 111 CONG. REC. 3257 (Bayh), 7941 (Poff), 15,380 (Bayh) (1965); 1964 Senate Hearings, supra note 3, at 44.

(110) . 111 CONG. REC. 3284 (Lausche, Bayh), 15,382 (Bayh), 15,589–92 (1965).

(111) . Id. at 3257 (Bayh), 3284 (Bayh); 1964 Senate Hearings, supra note 3, at 44.

(112) . 111 CONG. REC. 7957 (1965) (Tenzer).

(113) . Id. at 3258 (Tydings), 7941 (Poff), 15385 (Bayh).

(114) . Id. at 3258 (Tydings), 7941 (Poff).

(115) . 1965 House Hearings, supra note 2, at 254.

(116) . S. REP. No. 89-66 at 3 (1965); 111 CONG. REC. 15,595 (1965) (Javits).

(117) . 111 CONG. REC. 15,386 (1965).

(118) . 111 CONG. REC. 15,379 (Bayh), 15,383–86, 15,586–96 (1965).

(119) . 1965 House Hearings, supra note 2, at 93. 111 CONG. REC. 15,383–85 (1965).

(120) . 1965 Senate Hearings, supra note 2, at 24; 1965 House Hearings, supra note 2, at 58, 84–85, 108; 111 CONG. REC. 7963 (Celler), 15,379 (Bayh), 15,383 (Mc-Carthy), 15,586 (Gore) (1965).

(121) . 1965 Senate Hearings, supra note 2, at 28. A firing after a decision had been made should have no effect on that decision.

(122) . 1965 Senate Hearings, supra note 2, at 28; 111 CONG. REC. 15,590 (Gore, Ervin), 15,592 (Bayh) (1965).

(123) . 1965 House Hearings, supra note 2, at 62, 81, 88; 111 CONG. REC. 15,383 (1965).