The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth Amendment
The Bipartisan Bayh Amendment: Republican Contributions to the Twenty-Fifth A mendment
I. THE LEGAL 0
A. The Original Succession Clause 0
0 Saint Louis University School of Law
Law; Constitutional Law; Law and Politics; Law and Society; President/Executive Department; Legislation;
Thi s symposium is available in Fordham Law Review: http://ir.lawnet.fordham.edu/flr/vol86/iss3/7
THE BIPARTISAN BAYH AMENDMENT:
REPUBLICAN CONTRIBUTIONS TO THE
Joel K. Goldstein*
It is appropriate that Senator Birch Bayh has been widely recognized as
the author and person most responsible for the Twenty-Fifth Amendment.
His work was indispensable, and he was helped by other Democrats and
nonpartisan actors including the American Bar Association and John D.
Feerick, among others. Yet the Amendment was also the product of
bipartisan cooperation. Important provisions were based on work done
during the administration of President Dwight D. Eisenhower, and
Eisenhower and his Attorney General, Herbert Brownell, played important
roles in supporting Bayh’s proposal as did other Republicans in and out of
Congress. Republicans like Representative Richard Poff pushed ideas and
provisions that found their way into the Amendment, helped create important
legislative history, and contributed in the legislative process. Bayh’s
legislative contribution included the inclusive manner in which he operated,
and many Republicans deserve credit for participating constructively in a
process they could not direct.
In describing the bipartisan character of the Bayh Amendment, this Article
seeks to fill a void in scholarly writing since no prior work has this focus. It
also uses the Twenty-Fifth Amendment as a case study of the sort of
bipartisan effort on which any constitutional amendment depends. And it
suggests that the dispositions that produced the Twenty-Fifth Amendment—
in particular, communal problem solving based on a recognition of the need
for interested parties to build from areas of agreement—would contribute to
addressing other social problems.
* Vincent C. Immel Professor of Law, Saint Louis University School of Law. I am grateful
to Roy E. Brownell II and John Rogan for helpful comments on an earlier draft. I am most
grateful to John D. Feerick for more than four decades of conversations about presidential
succession and inability, a topic on which he is the nation’s foremost expert. Katie Finnegan
provided helpful research assistance. This Article was prepared for the symposium entitled
Continuity in the Presidency: Gaps and Solutions held at Fordham University School of Law.
For an overview of the symposium, see Matthew Diller, Foreword: Continuity in the
Presidency: Gaps and Solutions, 86 FORDHAM L. REV. 911 (2017).
IV. PARTISANSHIP (AND BIPARTISANSHIP) IN A BROADER CONTEXT ... 1171
Senator Birch Bayh, deservedly, is recognized as the person most
responsible for the Twenty-Fifth Amendment to the U.S. Constitution, which
addresses presidential succession and inability and vice presidential
vacancy.1 The young, first-term Democratic Senator’s skill, commitment,
and leadership were indispensable to the development, proposal, and
ratification of the Amendment during the mid-1960s.2 Democratic
Representative Emanuel Celler (New York) has also received credit for what
was sometimes referred to as the “Bayh-Celler Amendment.”3 He performed
important work on presidential inability during the 1950s and helped steer
the Amendment through the House of Representatives in 1965.4 President
Lyndon B. Johnson’s support helped too,5 as did the testimony of Nicholas
Katzenbach, Johnson’s Deputy Attorney General and later Attorney
General.6 Crucial nonpartisan contributions came from the American Bar
Association (ABA),7 Lewis F. Powell Jr., then one of its leaders,8 and John
D. Feerick, who played an extraordinary and diverse role as a scholar,
activist, and citizen.9
Republicans also contributed significantly to the Twenty-Fifth
Amendment. They helped conceive, promote, and advance the Amendment
to its ultimate ratification. Former Attorney General Herbert Brownell,10
former President Dwight D. Eisenhower,11 former Vice President Richard M.
Nixon,12 and Republican Representatives William McCulloch13 (Ohio) and
Richard H. Poff14 (Virginia) were among those who played critical roles.
Although earlier works have discussed the steps leading to the
Amendment,15 no scholarly work has focused on the roles Republicans
played in the achievement. Without detracting from the credit appropriately
given Bayh, other Democrats, and nonpartisan actors, it is important to focus
on Republican contributions as well. The Twenty-Fifth Amendment was the
product of bipartisan cooperation.16 Absent that quality, it would not have
become part of the Constitution.17
Far from diminishing the legislative achievement of Bayh and the other
architects of the Amendment, its bipartisan nature is another significant
reason to admire their work. Bipartisanship did not just happen on the
Twenty-Fifth Amendment. It was deliberately sought and carefully
cultivated by people on both sides of the aisle. The proponents understood
the bipartisan requisite, and their successful efforts to practice an inclusive
brand of problem-solving were an aspect of their accomplishment.
This discussion does not simply supplement historical understanding of the
events that led to Congress proposing the Twenty-Fifth Amendment in the
summer of 1965, although that is part of its intended contribution. It also
furnishes an instructive case study regarding formal constitutional
amendment and bipartisan legislative collaboration generally. Constitutional
arithmetic makes bipartisanship a likely prerequisite to any constitutional
amendment. Moreover, the factors that produced legislative bipartisanship
for the Twenty-Fifth Amendment offer lessons not only for cross-party
cooperation but also for common action in a variety of contexts.
This Article focuses on the bipartisan nature of the Twenty-Fifth
Amendment by discussing events culminating with Congress’s proposal of
the Amendment to the states in July 1965. It is not a complete study of
bipartisanship in connection with the Amendment because it does not discuss
the ratification process in the states. Its account of the legislative process is
also incomplete because it omits many contributions by Democratic figures.
These have been recognized elsewhere and are outside the scope of this
Article. Rather, this Article focuses on the contributions of Republican
figures in the legislative process that culminated in Congress proposing the
Twenty-Fifth Amendment to the states in July 1965.
Part I sketches the legal and political context in which the legislative
deliberations occurred. Part II describes the different ways in which various
Republicans contributed to the proposed Twenty-Fifth Amendment. Part III
extracts some lessons from their contributions and the deliberations in
general, especially the importance of bipartisanship during the legislative
process. Finally, Part IV puts bipartisanship in a larger context.
I. THE LEGAL AND POLITICAL CONTEXT OF THE TWENTY-FIFTH AMENDMENT
A. The Original Succession Clause and Eisenhower’s Proposal
The text of the Constitution as it existed in the early 1960s suggested that
presidential inability—like presidential death, resignation, or removal—
triggered some transfer of presidential power to the vice president.18 Yet
18. U.S. CONST. art. II, § 1, cl. 6 (“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,
whereas law or practice made the existence and operation of the other three
contingencies clear, presidential inability was characterized by ambiguity.
The Constitution did not define inability or indicate how it was determined.
Unlike the other three contingencies, the existence of which tends to be
evident, inability can be controversial. And whereas presidential death,
resignation, or removal are inherently final events that separate the chief
executive permanently from office, a presidential inability can be transitory,
of indefinite duration, long lasting, or permanent.19 The first three
contingencies create an automatic vacancy in fact; whether the fourth also
does turns partly on the legal consequence attached to presidential inability.
Vice President John Tyler’s claim that William Henry Harrison’s death in
April 1841 made him President, not simply Vice President acting as
President, was probably wrong,20 but little turned on it since Harrison’s death
ended his claim to the office. But, the text of the Constitution suggested that
whatever devolved on the Vice President following death also devolved
following inability.21 That textual symmetry created apprehensions that
since the Vice President became President upon his predecessor’s death
under the Tyler precedent, he might also do so during a presidential inability
even if the inability proved transient.22 That concern was one factor that
inhibited a transfer of power to Vice Presidents like Chester A. Arthur and
Thomas Marshall during the incapacities of James Garfield and Woodrow
Eisenhower, who suffered three presidential incapacities between
September 1955 and late November 1957,24 focused on ensuring that
presidential illness would not impede effective presidential leadership, an
increasingly serious problem during the Cold War and nuclear age.25
Although some thought Congress could address the issue by statute, most
thought a constitutional amendment was necessary to address presidential
inability.26 Speaking through Attorney General Brownell, the Eisenhower
administration proposed a constitutional amendment in April 1957 which
distinguished presidential inability from cases of death, resignation, or
removal.27 In the latter three, consistent with the Tyler precedent, the Vice
President became President;28 in the former, he simply exercised presidential
powers and duties during the inability.29 The proposed amendment allowed
the President to declare his inability in writing, at which point the Vice
President acted as President.30 If the President failed or was unable to declare
his inability, the Vice President upon written approval “of a majority of the
heads of executive departments who are members of the President’s Cabinet”
could declare the President’s disability.31 In either event, the President’s
written statement of his ability would allow him to resume presidential
functions.32 The Eisenhower proposal kept decision-making within the
executive branch and rejected any role for a presidential inability
commission.33 The proposal was criticized for not providing sufficient
protection should a disabled President assert his capacity to act; as a result,
other proposals were offered.34 Ultimately, no legislative action followed.35
The following year, Brownell’s successor, William P. Rogers, endorsed
Brownell’s proposed amendment with an added provision.36 The
modification stated that if the Vice President and Cabinet disagreed with the
President’s assertion of ability to resume the discharge of the powers and
duties of his office, Congress must resolve the dispute.37 In March 1958, a
bipartisan group of Senators introduced a revised form of this approach,
which provided that if the Vice President and Cabinet disagreed with the
President’s declaration of his capacity, Congress would decide the issue.38 A
two-thirds vote in both houses was needed to sustain the Vice President’s
claim.39 Even so, the President could later resume the discharge of his
powers and duties by agreement of the “Acting President” or by a majority
vote in each house.40 Although the Senate Subcommittee on Constitutional
Amendments endorsed the Eisenhower-Brownell-Rogers amendment,41
Congress took no action in 1958 or the following years.42
With no sign that Congress would act, Eisenhower entered into a letter
agreement with Vice President Nixon as a stopgap measure.43 It provided
that either Eisenhower or Nixon could determine that Eisenhower was
disabled, thereby transferring presidential powers and duties to Nixon until
Eisenhower concluded that he was able to resume their discharge, at which
point he would do so.44 Eisenhower rejected the formalistic conclusion that
the Constitution’s textual symmetry extended the Tyler precedent to
presidential inability.45 Instead, he preferred the common-sense idea that the
Constitution should allow a temporary transfer of presidential powers and
duties to handle what might be a transient inability, even if custom dictated a
permanent succession to the office when the triggering event produced an
inherently enduring vacancy due to death, resignation, or removal.46
Eisenhower established the idea that either the President or Vice President
could trigger the transfer, but the President could reclaim power.47 Finally,
Eisenhower wrote to Nixon privately that if “any group of distinguished
medical authorities” Nixon assembled concluded that the President had a
permanent disability, Eisenhower would resign; however, if he did not,
Nixon should assume the presidency nonetheless.48 The Eisenhower-Nixon
agreement was made public in part49 and largely followed by President John
F. Kennedy and Vice President Lyndon B. Johnson;50 President Johnson and
Speaker of the House of Representatives, John McCormack;51 and President
Johnson and Vice President Hubert H. Humphrey.52
Senator Estes Kefauver, Chairman of the Senate Subcommittee on
Constitutional Amendments, had previously introduced Senate Joint
Resolution 161 (“S.J. Res. 161”) in 195853 and Senate Joint Resolution 28
(“S.J. Res. 28”) in 1963,54 both of which essentially followed the
Eisenhower-Brownell-Rogers approach.55 However, he subsequently joined
with Senator Kenneth Keating, the ranking minority member of the Senate
Subcommittee on Constitutional Amendments, in introducing Senate Joint
Resolution 35 (“S.J. Res. 35”) in 1963.56 This resolution provided that in the
event of a presidential inability, the Vice President would simply discharge
the powers and duties of the office without assuming the office, but also
authorized Congress to provide by statute how and by whom the beginning
and end of presidential inability would be determined.57 The ABA supported
this congressional-enabling approach,58 Deputy Attorney General Nicholas
deB. Katzenbach testified in favor of it for the Kennedy administration,59 and
the Subcommittee on Constitutional Amendments reported it to the Senate
Judiciary Committee on June 25, 1963.60 Kefauver, however, died on August
10, 1963, before further action occurred.61
In autumn of 1963, Congress seemed unlikely to address presidential
inability. The title of John D. Feerick’s first article on the subject, “The
Problem of Presidential Inability—Will Congress Ever Solve It?,”62
suggested pessimism. His letter of November 8, 1963, which the New York
Times published nine days later, observed that “Congress has consistently
failed the American people by not acting” to address problems regarding
President Kennedy’s assassination on November 22, 1963, created
renewed interest in the subject of presidential continuity.64 The Cold War
was near its height in the nuclear age with the Cuban Missile Crisis occurring
only thirteen months earlier, which added urgency to the question of
presidential leadership.65 The then-existing Presidential Succession Act of
194766 placed the Speaker of the House and Senate President pro tempore
immediately after the Vice President in the line of presidential succession and
then extended the line through the Cabinet.67 Concern was magnified by the
fact that Johnson suffered a serious heart attack in 195568 and those next in
line of succession, Speaker John McCormack and Senate President pro
tempore Carl Hayden, were elderly69 and not regarded as presidential
These circumstances focused attention on the line of succession following
the Vice President in addition to presidential inability.71 Legislative and
Cabinet succession each had proponents and critics, and the recent rise of the
vice presidency beginning with Nixon’s term72 prompted a belief that filling
a vice presidential vacancy presented the best means to deal with presidential
succession and one which would also reduce the importance of the rest of the
Bayh, having succeeded Kefauver as chairman of the Senate
Subcommittee in late September 1963,74 seized the opportunity to use the
national tragedy to galvanize Congress to act. The first step was to formulate
a proposal. Congress had offered two bipartisan options for addressing
presidential inability: the Eisenhower-Brownell-Rogers approach, which
Kefauver had initially supported75 and which specified procedures for
transferring presidential powers voluntarily or involuntarily,76 and the
Keating-Kefauver congressional-enabling approach (Senate Joint Resolution
35), which Katzenbach77 and the ABA had endorsed.78 Two days after
Kennedy’s assassination, the New York Times called for Congress to adopt
the Keating approach.79
B. Incorporating Eisenhower’s Proposal
Bayh determined that he preferred the Eisenhower-Kefauver “specific
procedural constitutional amendment” to the Keating-Katzenbach
congressional-enabling approach.80 Bayh thought that S.J. Res. 35
insufficiently protected the President’s position, doubted that state
legislatures would give Congress a blank check, and worried that the
proposal’s failure to prescribe procedures might result in Congress deferring
indefinitely the task of coming up with some.81 Bayh thought that Congress
needed to develop procedures promptly while the trauma of Kennedy’s
assassination still provided an incentive to act, not simply to obtain power to
legislate in the future.82 He also thought that filling a vice presidential
vacancy was the most pressing problem83 and proposed to remedy that
deficiency by allowing the President to nominate a Vice President to be
confirmed by Congress.84 Such an innovation would diminish the
importance of who followed the Vice President in the line of succession, but
Bayh also favored replacing the legislative leaders with the Cabinet to keep
succession within the executive branch.85
Within three weeks of Kennedy’s assassination, Bayh had introduced
Senate Joint Resolution 139 (“S.J. Res. 139”), a proposed constitutional
amendment addressing presidential succession, vice presidential vacancy,
and presidential inability, and he announced that his Subcommittee would
conduct hearings early in 1964.86 In crafting S.J. Res. 139, Bayh took the
basic provisions regarding presidential inability from the
EisenhowerBrownell-Rogers proposal with some changes, while adding a new section to
fill vice presidential vacancies by presidential nomination subject to
confirmation by both houses of Congress.87 As modified during the next
nineteen months, S.J. Res. 139 formed the basis for the Twenty-Fifth
Amendment, which Congress proposed in the summer of 1965 and which
received the required three-fourths ratification of the states by February 10,
Although the Kennedy assassination focused attention on the subject, it did
not produce an immediate consensus regarding a solution. The following
period produced many suggested reforms regarding presidential succession
79. Editorial, The Presidential Succession, N.Y. TIMES, Nov. 24, 1963, at 94.
80. BAYH, supra note 10, at 32, 34–35.
81. Id. at 30, 32, 34–35.
82. See id. at 34–35.
83. Id. at 32.
85. See S.J. Res. 139, 88th Cong. § 6 (1963).
86. 109 CONG. REC. 24,420 (1963); John D. Morris, Study of Succession Is Planned in
Senate, N.Y. TIMES, Dec. 13, 1963, at 1.
87. BAYH, supra note 10, at 35; FEERICK, supra note 4, at 244.
and inability and vice presidential vacancy. Eisenhower, for instance,
initially proposed changing the line of succession to run through the Cabinet
whereas McCormack and former President Harry S. Truman endorsed the
existing line beginning with legislative leaders.88 Additionally, whereas
Bayh thought a constitutional amendment was required,89 some thought the
issues of succession and inability could be addressed by statute.90 Those who
favored some constitutional amendment were nonetheless divided among a
variety of ways to fill a vice presidential vacancy and address inability.91 The
proposals included holding a special presidential election following a
succession during the first half of a presidential term,92 selecting two Vice
Presidents,93 allowing one94 or both95 houses to elect a Vice President
without a presidential nomination or from a list of prospective nominees,96
or reconvening the Electoral College,97 as well as several other options.98
Regarding presidential inability, some, like Keating, favored an enabling
amendment99 whereas others suggested an “inability commission.”100
A constitutional amendment as Bayh proposed would, of course, impose a
heavy burden. Article V of the Constitution, which governs constitutional
amendment, requires common action by the House of Representatives, the
Senate, and the states, and it imposes a daunting supermajority requirement
at each stage.101 The House and Senate must propose an amendment by a
two-thirds vote and three-fourths of the states must ratify it for it to become
part of the Constitution.102 That extraordinary level of consensus makes
constitutional amendments difficult and, accordingly, rare. Democrats held
sixty-six of 100 seats in the Senate and 258 of 435 in the House between 1963
and 1964—not enough to reach the two-thirds threshold in either house even
assuming perfect party discipline. Substantial opposition in either house
would likely encourage resistance elsewhere. Any successful amendment
would require bipartisan cooperation.
Yet issues regarding presidential succession and inability often sparked
partisan conflict, not cooperation. In the early 1790s, when Congress first
sought to create a line of succession behind the Vice President, Alexander
Hamilton and his Federalist allies had favored a legislative line in part to
avoid placing Secretary of State Thomas Jefferson second in line to the
presidency,103 whereas Jeffersonians, like James Madison, had argued for
Cabinet succession.104 In 1919 and 1920, Republicans seemed disinclined to
contribute to a resolution of Woodrow Wilson’s disability, concluding that it
hurt the Democrats.105 In 1947, Republicans seemed more enthusiastic about
placing legislative leaders after the Vice President, perhaps because
Republican Joe Martin was Speaker of the House rather than Democrat
Senator Sam Rayburn, who held the position the year prior. Although the
House voted on a bipartisan basis to elevate the speaker, the Senate voted
along party lines in support of the measure, which placed two Republican
legislators, not a Democratic Secretary of State, next in line.106 Democratic
congressional leaders reportedly balked at addressing inability issues during
Eisenhower’s second term for fear that a resolution would elevate Nixon’s
standing and suggest that Eisenhower was more ill than known.107
The questions about McCormack’s fitness to be next in line introduced a
further complication. They added urgency to reform efforts but also impeded
them. Since some members of the House feared that action might seem to
impugn McCormack’s fitness, they resisted moving forward.108 Bayh’s
original proposal, which would have placed Cabinet members rather than
legislative leaders after the Vice President,109 probably exacerbated the
problem. Even when Bayh dropped that provision, McCormack was
reportedly cool to the measure.110 It became clear that the House of
Representatives would not address presidential succession until after a new
President and Vice President were inaugurated in January 1965.111
Ironically, the House’s delay allowed the Senate to claim the initiative and
largely define the basic shape of the proposal.
II. REPUBLICAN CONTRIBUTIONS
In this promising but uncertain environment, the actions of Republicans,
as well as Democrats, helped produce the Twenty-Fifth Amendment. Bayh’s
proposal ultimately defined the basic terms of the Amendment, but
Republicans made crucial contributions to the shape and legislative success
of the Twenty-Fifth Amendment. Many of these contributions were
interrelated and some Republicans contributed in diverse ways.
A. Incorporating a Republican Proposal
The first way in which Republicans contributed to the Twenty-Fifth
Amendment has already been mentioned—S.J. Res. 139 and its successor
regarding presidential succession and inability largely followed the
Eisenhower-Brownell-Rogers approach. Although Bayh’s proposal differed
in some particulars, like Eisenhower-Brownell-Rogers, it embraced the Tyler
precedent for presidential death, resignation, and removal (but not inability),
provided for the voluntary transfer of presidential powers and duties by the
President on a temporary basis and the involuntary transfer of presidential
powers and duties by the Vice President with Cabinet support, and specified
that Congress would resolve a dispute regarding the President’s subsequent
ability to exercise presidential powers and duties.112 Bayh acknowledged,113
and perceptive Republicans114 and observers115 noticed, the Republican
connection to these ideas.
B. Early Prominent Republican Supporters
If Bayh had constructed a wish list of coveted Republican supporters,
Eisenhower, Nixon, and Brownell would have likely been at or near the top.
Eisenhower was the beloved, former two-term President who had
experienced and taken responsible action to address presidential inability.
Nixon, the 1960 Republican presidential candidate, was Vice President
during both the office’s migration to the executive branch and Eisenhower’s
incapacities. Brownell had studied the issue as Eisenhower’s Attorney
General during his disabilities and enjoyed great prestige. Within a few
months, all three had endorsed most of S.J. 139 and played important roles
in enhancing its prospects for success.
1. Herbert Brownell
Brownell played multiple roles and his multifaceted contributions were
critical to the Amendment’s success.116 His past activities and conclusions
made his early support of Bayh’s approach unsurprising. He was a key
participant in a blue-ribbon ABA group that met in January 1964 to consider
the subject117 and formulated principles consistent with Bayh’s proposal,
which the ABA endorsed on February 1
,118 thereby switching its
support from Keating’s to Bayh’s approach. The ABA’s support made an
enormous difference in achieving the success of the proposal and the
ratification of the Amendment.119
Brownell provided important support for Bayh’s proposal as a witness
when Bayh’s Subcommittee on Constitutional Amendments held hearings on
February 25, 1964.120 In his testimony, Brownell agreed that a constitutional
amendment was needed121 and endorsed the presidential inability122 and vice
presidential vacancy123 provisions of S.J. Res. 139. Brownell explained that
the participants at the ABA conference the prior month had overcome their
“widely” divergent views to achieve consensus because “they all agreed that
the dire necessities of promptly solving the problems outweighed their
individual preferences.”124 Brownell was a persuasive advocate for Bayh’s
proposal with enormous credibility. He was able to contradict Keating’s
view that state legislators would be more likely to support an enabling
amendment rather than one detailing procedures;125 Brownell’s experience
of five terms in the New York State Assembly no doubt added weight to his
opinion126 and reinforced Bayh’s own analysis based on his service in the
Indiana General Assembly.127
When the ABA hosted the National Forum on Presidential Inability and
Vice Presidential Vacancy in Washington, D.C., on May 25, 1964, to educate
more than 500 leaders from around the country, Brownell was part of the
featured panel along with Bayh, Celler, and Edward L. Wright, chair of the
ABA House of Delegates.128 Brownell presented the history of the problem
and explained the need for a constitutional amendment to address presidential
inability.129 As shown below, however, Brownell’s contributions that day
went well beyond his public comments.
Brownell chaired the ABA’s Committee on Presidential Inability and
Vice-Presidential Vacancy and in that capacity testified before Bayh’s
Subcommittee again on January 29, 1965, as a main witness during the
single-day hearing.130 Brownell again supported Bayh’s proposal,131 now
Senate Joint Resolution 1 (“S.J. Res. 1”),132 and responded to arguments and
questions advanced by various Republicans.133 Brownell supported Bayh’s
approach to hold separate votes of the House and Senate to confirm a vice
presidential nominee134 and to allow either the Cabinet or Vice President to
initiate a disability determination,135 and he supported the approach of S.J.
Res. 1 generally on disability.136 Brownell also testified before the House
Committee on the Judiciary on February 1
,137 where he again
emphasized the importance of Congress addressing the problem, supported
the Bayh-Celler proposal, and responded to extensive questions, especially
from Republican members.138
Brownell’s influence was further reflected by the extent to which some of
his ideas helped shape the defense of the proposals that became the
TwentyFifth Amendment. For instance, in testifying before the Senate
Subcommittee on Constitutional Amendments in 1964, Brownell had
repeated an idea from his 1958 Yale Law Journal article139—that “ultimately
the operation of any constitutional arrangement depends on public opinion
and . . . ‘constitutional morality’” rather than procedural guarantees and that
“[n]o mechanical or procedural solution will provide a complete answer if
one assumes hypothetical cases in which most of the parties are rogues and
in which no popular sense of constitutional propriety exists.”140 Brownell
went on to endorse the combination of the Vice President and Cabinet as the
“the most feasible formula” consistent with constitutional principles.141
Brownell’s formulation was incorporated without attribution in the Senate
and House reports that accompanied S.J. Res. 139142 and House of
Representatives Joint Resolution 1 (“H.R.J. Res. 1”),143 and the idea echoed
in important discussions during congressional deliberations.144
Brownell’s skill, leadership, credibility, and commitment to the principles
and procedures that led to the Twenty-Fifth Amendment played an important
role in its eventual success.145 He was a compelling witness but also played
an important role in securing ABA support for Bayh’s proposal and in other
behind-the-scenes roles described below.
2. Dwight D. Eisenhower
Eisenhower provided important support for S.J. Res. 139 even while
disagreeing on some particulars. In a letter dated March 2, 1964, which Bayh
made public on March 4, 1964,146 Eisenhower agreed that a constitutional
amendment was necessary and endorsed Bayh’s proposal to fill a vice
presidential vacancy.147 He thought the President should announce his own
disability “[w]herever possible,” but if “circumstances made this
impossible,” the Vice President should announce the disability and assume
presidential powers “with the concurrence of a majority of the Cabinet.”148
In either case, Eisenhower strongly agreed that the Vice President was simply
acting as president temporarily.149 The one instance where Eisenhower
departed from Bayh’s approach regarding presidential inability was in his
suggestion that a dispute between the president and vice president should be
resolved by a disability commission consisting of some Cabinet members,
legislative leaders, and medical professionals.150
Eisenhower was the featured speaker at the ABA’s National Forum in May
1964. Brownell had recruited Eisenhower for that assignment and lobbied
him to abandon his support for a disability commission.151 Brownell and
Bayh approached Eisenhower during the reception before his speech to argue
against the commission proposed in his March 1964 letter.152 In his speech,
Eisenhower unequivocally supported section 2 of Bayh’s proposal and
praised the vice presidency as a vehicle for succession.153 Regarding
inability, Eisenhower argued that presidential inability needed to be solved
“now” through a constitutional amendment and supporting legislation.154
Eisenhower thought the Vice President should make the decision, assuming
the President did not initiate the transfer himself.155 Although his remarks
were ambiguous regarding how much the amendment should detail and how
much should be left to statute, he made no reference to a commission and
was open to Cabinet participation with Congress as an umpire of an
intraexecutive branch dispute,156 thus bringing his position close to Bayh’s
Eisenhower’s impact went beyond the immediate audience to the millions
of those who read accounts of his speech across the country.157 His unique
stature guaranteed coverage and his popularity made his support significant.
“Truly we had made great progress that day,” Bayh wrote later.158 Bayh
thought that Eisenhower “had fired the audience, and through the press the
country at large, with the urgency of working out a solution to the problems
of Presidential succession and disability.”159 Eisenhower had provided “a
3. Richard M. Nixon
Former Vice President Nixon was a third Republican luminary who
provided important support for S.J. Res. 139. His testimony highlighted the
final day of the first round of Senate hearings on March 5, 1964.161 Nixon
had previously proposed that a vice presidential vacancy be filled by a
presidential nomination confirmed by the presidential electors from the most
recent presidential election, and he adhered to that preference during his
testimony.162 However, Nixon backed the disability approach of S.J.
Res. 139 and specifically criticized Eisenhower’s then-recent disability
commission proposal; he believed that Congress should resolve an
intraexecutive branch dispute as Bayh’s proposal provided.163 Nixon also
agreed that a constitutional amendment was needed.164 He elaborated on the
importance of the vice presidency, predicted its further growth, and opposed
Keating’s two-vice presidents proposal as likely to diminish the office,165 all
of which had particular credibility because of Nixon’s own contributions to
the growth of the vice presidency.166 Nixon agreed with Bayh that a vice
presidential vacancy needed to be filled.167
Bayh later described Nixon as “an exceptional witness” and his statement
as “the most effective of our entire series of hearings.”168 Nixon’s
appearance attracted wide media coverage.169 Bayh thought that Nixon’s
contribution “was of inestimable inherent value,”170 not only for the positions
recounted above but also for reasons discussed below.
The three Republican luminaries clearly had an impact. The Washington
Post began its editorial of March 9, 1964, supporting a constitutional
amendment by referencing the calls of Eisenhower and Nixon for action on
presidential inability.171 Their vocal support no doubt encouraged others to
C. Creating a Climate for a Cooperative Effort
Nixon’s primary contribution was not, however, in his support for most of
Bayh’s approach but in his eloquent insistence that interested parties put
aside their differences and reach consensus. Nixon modeled that behavior in
his testimony given extemporaneously for about thirty minutes.173 Nixon
began, and ended, his direct testimony by underlining the importance of
Bayh’s work, calling Bayh’s hearings the “most important hearings”174 being
conducted in Washington because they involved “the future of the United
States as no other hearings perhaps in recent years have.”175
Nixon had “strong convictions”176 that his proposals were “the best
approach”177 but did not insist that they were “the only way to handle the
problem.”178 He stated, “what is important is not that this committee adopt
my proposals, what is important is that this committee make a
recommendation to the Congress, to the Senate, and to the Nation which will
get action on these two problems, the problem of succession and the problem
of disability.”179 Nixon thought that “the time ha[d] come” for Bayh’s
Subcommittee to identify “a united proposal” and to act while the sense of
urgency from the Kennedy assassination remained.180 It was “imperative that
this problem [of disability] be dealt with and dealt with now.”181 When asked
whether he would prefer an amendment specifying a procedure or enabling
Congress to take further action, Nixon replied, “[t]he approach I would prefer
is the one that this committee finally concludes has the best chance to
success.”182 Nixon emphasized, “all of the nit-picking arguments” between
approaches “make very little impression on me” and “our major
concern . . . is to find a solution that will be least controversial but will get at
the major problem.”183 In his view, the Subcommittee should collect ideas
and adopt “the best idea in [its] opinion, and  get the public support and go
forward with it.”184 Nixon would support the Subcommittee’s judgment
because “the important thing is to get action and get it fast.”185 Nixon’s
promise set a powerful example; the most recent Republican presidential
nominee was basically giving a blank check to a subcommittee with a
Other Republicans showed dispositions consistent with Nixon’s guidance.
Republican Senator Jacob Javits (New York), for instance, had previously
amended his Senate Joint Resolution 138 (“S.J. Res. 138”) to bring it closer
to S.J. Res. 139,186 which he later agreed to cosponsor.187 Keating, though
still preferring his two-Vice Presidents-and-enabling approach, suggested in
late March 1964 that he would support S.J. Res. 139 if the Senate preferred
it to his proposal.188
When House Democrats subjected Bayh to aggressive and skeptical
questioning as he testified before the House Judiciary Committee on
,189 Poff modeled behavior consistent with Nixon’s
urging.190 Poff urged that all should “recognize candidly what hasn’t yet
been articulated”—that the Bayh-Celler proposal “is the end result, the
precipitant of a long process of distillation and filtration in which many hands
have played a part.”191 Poff emphasized that it was “not a carelessly drawn
measure” because he was “anxious” that Congress take “expeditious
action . . . on this vitally important matter.”192 Poff disclaimed any intent to
“unduly” probe Bayh’s proposal, telling Bayh, “I want to see this thing done
as expeditiously as possible and I am willing to compromise.”193 Later
during the hearings, Poff expressed disagreement with allowing the Cabinet
(as opposed to just the Vice President) to initiate a presidential disability
determination, but indicated that he was “prepared to make a compromise, if
necessary, to get something done,” because he “want[ed] to see something
Some independent witnesses who promoted different proposals also called
for cooperation. Marion B. Folsom, Eisenhower’s former Secretary of
Health, Education, and Welfare, testified on behalf of the Committee on
Economic Development195 and suggested an approach that differed
somewhat from Bayh’s proposal.196 Nonetheless he said that Senators should
pass Bayh’s proposal without changes if they thought it most likely to win
D. Legislative Efforts
Republicans also played crucial roles at virtually every stage of the
legislative efforts that resulted in the passage by the House and Senate of the
proposed Twenty-Fifth Amendment in summer 1965.
1. 1964 Republican Collaboration: The Senate
Although Bayh initially introduced S.J. Res 139 with only the
cosponsorship of Democratic Senator Edward V. Long (Missouri),
Republican Senators James Pearson (Kansas) and Hiram Fong (Hawaii)
joined as cosponsors in March198 and April199 of 1964. By the time the
Senate considered S.J. Res. 139, ten of the thirty cosponsors were
Republicans, including Fong and Keating, worked with Bayh to refine S.J.
Res. 139 in May 1964 before reporting it to the Senate Judiciary Committee
with the understanding that Keating would seek to amend it with his proposal
on the floor.201 Although the Republican Minority Leader, Senator Everett
Dirksen (Illinois), was not yet prepared to support the measure202 and
Keating preferred his own approach, the Subcommittee voted unanimously
to report S.J. Res. 139 to the full Committee203 on May 2
204 In early
, the full Judiciary Committee unanimously reported S.J.
Res. 139 to the Senate with the understanding that amendments could be
offered to it including by Committee members.205
When Senate Majority Leader Mike Mansfield advised Bayh on
September 28, 1964, that the Senate could consider S.J. Res. 139 that very
afternoon,206 both Keating and Senator Roman Hruska, who wanted to
propose changes, were out of town.207 Both Republicans agreed to release
Bayh from the understanding that they would have the opportunity to offer
amendments so he could proceed in their absence.208
Four209 of the eleven Senators who spoke in favor of S.J. Res. 139 that day
were Republicans.210 The measure carried on a voice vote.211 After
Democratic Senator John Stennis (Mississippi) objected the following day
that a proposed constitutional amendment should require a recorded vote,212
the Senate passed the measure by a vote of 65 to 0 with Republicans
providing 21 of the aye votes, including those of Minority Leader Dirksen
and Republican Whip Thomas Kuchel, respectively.213 Some nine of the
absent thirteen Republican Senators were recorded as supporting S.J. Res.
139.214 Accordingly, thirty of the thirty-four Republican Senators, or 88
percent, supported the measure.215
The House of Representatives predictably took no action in 1964.216 The
November 1964 election of Senator Hubert H. Humphrey as Johnson’s Vice
President and his inauguration on January 20, 1965, mitigated the appearance
that section 2 was directed against McCormack.217 Johnson’s landslide
election had coattails that produced a new Senate in which Democrats held
sixty-eight (of 100 seats) and a House in which they held 295 (of 435) seats.
Keating, the leading proponent of the congressional-enabling approach, lost
his seat to Robert F. Kennedy.218
2. Winning Celler’s Support: Calling on Brownell Again
Bayh reintroduced his proposal in the new Congress as S.J. Res. 1. He
hoped to have Celler, the House Judiciary Committee chair, offer the
identical measure in the House given his position, long association with the
issue, and standing in the House.219 Celler had served in Congress since
1923, forty years more than Bayh, and worked on presidential inability for a
decade,220 so understandably might not have been disposed to defer to a
newcomer. In 1958, he had introduced legislation calling for the
establishment of a commission on presidential inability composed of
members of the executive and legislative branches to determine the beginning
and end of a presidential inability.221 At the ABA’s National Forum in May
1964, Celler proposed incorporating Cabinet succession such that the
Secretary of State would become Vice President rather than Bayh’s method
for filling a vice presidential vacancy.222
Soliciting Celler’s support for Bayh’s proposal required someone of
uncommon skill and stature. Bayh and ABA officials decided that “the
obvious person” to handle the delicate assignment was Brownell, who had
already been “invaluable” in advancing Bayh’s proposal.223 Brownell went
to see Celler and successfully persuaded him.224
3. 1965 Republican Collaboration: The Senate
Because the Senate held extensive hearings in 1964 (and approved S.J.
Res. 139 unanimously)225 and because S.J. Res. 1 had seventy-six
cosponsors,226 Bayh held only a single day of hearings on January 29, 1965,
to consider S.J. Res 1 and four other proposals.227 He announced that the
hearings would “emphasize . . . views from those who differ in part or
entirely from the consensus which has developed over the past year on this
issue.”228 Nonetheless, during the 1965 Senate hearing, Fong supported S.J.
Res. 1,229 as did Republican Senators Pearson,230 Javits,231 Leverett
Saltonstall (Massachusetts),232 Karl Mundt (South Dakota),233 and Strom
Thurmond (South Carolina), although Thurmond preferred to use the most
recent presidential electors to fill a vice presidential vacancy.234
After Bayh’s Subcommittee unanimously sent S.J. Res. 1 to the full
Judiciary Committee in early February 1965,235 even Republicans with
misgivings about the proposal worked to advance it. Hruska acceded to a
request by James Eastland, chairman of the Senate Judiciary Committee, to
expedite consideration of the proposal rather than deploy procedural tactics
to delay action since Senate floor time was most available early in the
session.236 Dirksen accepted sections 1 and 2237 but proposed amendments
to other portions.238 For instance, he pointed out that section 3 did not specify
to whom the President’s disability declaration should go.239 Discussion
between Senators Dirksen, Javits, Hruska, and Samuel Ervin produced a
formulation contemplating a presidential declaration to the President of the
Senate and Speaker of the House, which was adopted with Bayh’s
approval.240 Some other relatively cosmetic changes were made.241
Although Hruska objected to Congress playing an umpire role on separation
of powers grounds,242 and he and Dirksen favored an enabling amendment
similar to the one Keating had introduced in the prior Congress,243 the
Committee unanimously reported S.J. Res. 1 as amended.244
When the Senate considered S.J. Res. 1 on February 19, 1965, its advocates
included Republican Senators Milward Simpson (Wyoming),245 Fong,246
Saltonstall,247 Frank Carlson (Kansas),248 and ultimately, Hruska249 in
addition to Bayh and Ervin. Some Democratic Senators seemed critical or
questioning of provisions of S.J. Res. 1,250 and the debate between Bayh and
various Democrats was characterized as “heated” and “hot and
acrimonious.”251 When Bayh was on the verge of accepting a change that
would have introduced procedural complications, the more experienced
Hruska and Ervin dissuaded him. Bayh later recognized that Hruska had
helped in the February 1965 debate.252
When Dirksen moved to substitute an enabling amendment for S.J. Res. 1,
Republicans Simpson, Fong, Carlson, and Saltonstall were among those who
spoke in favor of S.J. Res. 1 or against Dirksen’s proposal.253 The Dirksen
substitute was defeated by a vote of 60 to 12.254 Although twelve
Republicans voted for their leader’s proposal255 and five absent Republican
Senators expressed support,256 thirteen Republican Senators voted against
the Dirksen substitute and the absent Javits opposed it.257
Although some like Republican Senator Hugh Scott (Pennsylvania)
preferred the Dirksen substitute, they supported S.J. Res. 1 in order to adopt
a “workable proposal.”258 S.J. Res. 1 carried 72 to 0, with 24 of the votes
coming from Republicans. The eight absent Republicans all were recorded
as supporting the proposed amendment.259 In other words, 100 percent of
Republican Senators were ultimately recorded as supporting S.J. Res. 1 on
February 19, 1965.
In addition to their votes and their voices, Republicans contributed in other
ways during the Senate debate on S.J. Res. 1. Hruska’s amendment to
increase from two to seven days the time the Vice President and Cabinet
would have to contest the President’s declaration of his capacity260 was
accepted. Some Republicans helped shape important legislative history.
Saltonstall established that a Vice President acting as President would lose
the ability to preside over the Senate.261 Senator Gordon Allott helped Bayh
to establish legislative history supporting the view that the Vice President
would continue to act as President during the period in which the Vice
President and Cabinet could contest the President’s declaration.262
4. 1965 Republican Collaboration: The House
If anything, Republicans played an even more active role in the House of
Representatives. While Celler introduced H.R.J. Res. 1,263 which was
identical to Bayh’s original S.J. Res. 1, McCulloch, the ranking minority
member on the Judiciary Committee, and Poff each introduced amendments
that largely tracked the Bayh-Celler proposal with an important difference.
H.R.J. Res. 1 provided that if the Vice President and Cabinet contested the
President’s declaration of capacity, Congress must “immediately decide the
issue.”264 By contrast, S.J. Res. 1, as amended by the Senate Judiciary
Committee, provided that Congress must “immediately proceed to decide the
issue.”265 Unlike the Bayh and Celler proposals, McCulloch266 and Poff267
each imposed a ten-day time limit for Congress to resolve such an
intraexecutive branch disagreement. However, their proposals differed
slightly in that McCulloch’s ten-day period ran from the transmittal of the
President’s declaration of fitness268 whereas Poff gave Congress ten days
from receipt of the Vice President’s letter challenging the President’s
The House began four days of hearings on February 9, 1965, ten days
before the Senate passed S.J. Res. 1.270 In his opening statement, McCulloch
spoke of the urgency of the issues that the Bayh-Celler amendment
addressed; however, he expressed unease at the “speed” with which the
proposal was progressing since “[u]ndue haste could lead to oversight,
imperfection, and regret.”271 He explained that in most respects, his proposal
was identical to H.R.J. Res. 1,272 but that he thought that “a definite time
period should be established”273 for Congress to resolve an executive branch
dispute regarding presidential inability, even though he was “not wedded to
a particular time period.”274 McCulloch viewed the concept of immediate
action in the Bayh-Celler proposal as too indefinite.275
Republican members of the House Judiciary Committee participated
actively in its 1965 hearings. Representatives Arch Moore, Charles Mathias,
and McCulloch questioned Bayh regarding the meaning of “principal officers
of the executive departments” in the disability provisions of S.J. Res. 1.276
Moore asked whether someone other than the President or Vice President
should be able to initiate an inability determination.277 He and other
Republicans raised concerns regarding forcing Congress to resolve an
intraexecutive dispute quickly.278 Mathias discussed the use of impeachment
against a Vice President who refused to relinquish power to the President,279
challenged the vice presidential vacancy provision,280 and questioned the
impact of allowing Congress to umpire an intraexecutive branch dispute on
presidential inability.281 During Bayh’s testimony, Moore observed that “it
is fair to determine from the manner of the questions and the questions
themselves that we are interested in this. We want to see the problem and it
is a very severe problem as far as the administration of our Government is
concerned, solved.”282 Later Poff, McCulloch, Mathias, Moore, and Lindsay
engaged intensively with Katzenbach.283
No Republican worked harder to improve the amendment than did Poff.
During Bayh’s House testimony, Poff made numerous suggestions that
reflected the careful attention he had given the Bayh-Celler proposal.284 Poff
and McCulloch pressed Bayh about the need for a specific time limit for
Congress to decide an intrabranch dispute285 and Poff repeatedly advocated
a time limit on congressional action during hearings.286 Bayh resisted the
idea, owing to the sensitivity of time limits for some Senators and because a
more flexible approach would allow handling different situations differently.
Although the discussion of the time limit signaled a difference between the
Bayh-Celler and McCulloch-Poff approaches, Poff helped Bayh in other
respects. When a number of predominantly Democratic representatives
posed critical questions at the outset of the hearing,287 Poff interjected to
point out the care and deliberation that had gone into the Bayh-Celler
proposal.288 Poff defended the provisions of H.R.J. Res. 1 during
hearings.289 Poff also helped Bayh to craft important legislative history on a
number of points.290 In fact, when Bayh misstated one conclusion, Poff
interjected to indicate that Bayh had misunderstood the question, thus
allowing Bayh to correct his testimony.291
When the House Committee on the Judiciary reported H.R.J. Res. 1 to the
House on March 2
, two facts suggested the Republican influence.
First, ranking member McCulloch, not Committee chair and H.R.J. Res. 1
author Celler, presented the report.292 Second, the reported version of
H.R.J. Res. 1 had been amended to include a ten-day time limit for
congressional action measured from receipt of the written declaration of the
Vice President and Cabinet contesting the President’s declaration of
fitness.293 H.R.J. Res. 1 was still Bayh-Celler, but in this respect, it was also
When H.R.J. Res. 1 came to the floor on April 1
, Celler began his
opening remarks by noting that the measure had “bipartisan support” and
singling out for praise “particularly” McCulloch and Poff, “who participated
in the fashioning and polishing of this resolution. They did so most wisely
and painstakingly. They immersed themselves into the intricacies of the
legislation. Their help was immeasurable.”294 Celler went on to praise “the
constructive work done by most of the members of our committee,
Democrats, and Republicans alike,” and specifically mentioned Republicans
John V. Lindsay (New York) and William C. Cramer (Florida), along with
When Republican Representative Durward Hall (Missouri), a physician,
questioned the lack of medical testimony during the hearings and inquired
whether medical personnel would be consulted in a disability
determination,296 Poff came to Celler’s aid.297 Poff pointed out that Brownell
had relied on medical opinions in advising Nixon and the Cabinet that no
287. See id. at 45–63 (statements of various Reps.)
288. Id. at 63–64 (statement of Rep Richard Poff).
289. See id. at 206–07 (defending the provision for filling a vice presidential vacancy).
290. Id. at 87 (establishing that presidential inability or vice presidential inability did not
create a vacancy and that the Vice President, as Acting President during a presidential
inability, need not take the presidential oath); id. at 94 (interrupting after Bayh initially, and
mistakenly, suggested that the President could not reassert ability after an unfavorable
congressional decision); see id. at 196 (discussing the meaning of a vice presidential vacancy);
id. at 246 (establishing, with Brownell, that a vice presidential disability is not a “vacancy”).
291. Id. at 94 (establishing that the President could reassert the ability to discharge the
powers and duties of his office after an adverse decision by Congress).
292. See H.R. REP. NO. 89-203, at 1 (1965).
293. Id. at 2–3.
294. 111 CONG. REC. 7936 (1965) (statement of Rep. Celler).
296. Id. at 7938–39 (statement of Rep. Hall).
297. Id. at 793
formal transfer was needed and suggested that future decision-makers would
surely consult medical professionals,298 a point Republican Representative
Clark McGregor (Minnesota) reinforced.299
Poff described H.R.J. Res. 1 as involving “some degree of compromise,”
praised Celler as “an impartial, fair-minded arbiter” who “stood firm when
firmness was necessary but has yielded when logic dictated,” and said no
“partisan consideration was advanced” in the Committee’s deliberations.300
Poff provided a scholarly justification for H.R.J. Res. 1, which explained and
justified the changes made during the Committee’s deliberation. In
particular, H.R.J. Res. 1 as amended made clear that a President who
voluntarily transferred power could resume powers immediately upon his
written declaration of his fitness, required Congress to assemble if not in
session, and added a time limit for Congress to act within ten days.301
McCulloch largely echoed Poff’s defense.302 Other Republicans, including
Representatives Frank Horton (New York),303 Willard S. Curtin
(Pennsylvania),304 Robert Stafford (Vermont),305 Robert McClory
(Illinois),306 James Battin (Montana),307 Lindsay,308 William Cahill (New
Jersey),309 Seymour Halpern (New York),310 and F. Bradford Morse
(Massachusetts),311 also filed statements supporting H.R.J. Res. 1.
Poff, McCulloch, and other Republicans helped defend H.R.J. Res. 1 from
amendments on the House floor (some proposed by other Republicans).
When Democratic Representative Roman Pucinski (Illinois) sought to strike
section 2, Poff argued that his premise was wrong in thinking that section 2
would repeal the 1947 succession law which placed the Speaker after the
President and Vice President.312 Lindsay offered other passionate arguments
in opposition.313 When Republican Representative Charles Jonas (North
Carolina) suggested that the Vice President’s appointment be temporary
pending a special election,314 McCulloch pointed out that a special election
would be costly and might produce a Vice President from the opposing
party.315 When Moore proposed amending H.R.J. Res. 1 so that the President
would exercise powers while Congress resolved a dispute over his
300. Id. at 7940 (statement of Rep. Poff).
301. Id. at 7941.
302. Id. at 7942–43.
303. Id. at 7943–44.
304. Id. at 7945.
306. Id. at 7946–47.
307. Id. at 7947.
308. Id. at 7947–48.
309. Id. at 7951.
310. Id. at 7951–52.
311. Id. at 7952.
312. Id. at 7960.
313. Id. at 7961–62.
314. Id. at 7962.
capacity,316 McClory was among those who objected that Moore’s
amendment would contribute to instability.317
Poff, at McCormack’s request, offered the one floor amendment that was
accepted.318 It required Congress to reassemble within forty-eight hours if
not in session in response to the Vice President’s challenge to a President’s
assertion of his ability to resume his powers and duties.319 Poff’s willingness
to accommodate the Speaker was further evidence of the bipartisan spirit that
pervaded the treatment of H.R.J. Res. 1.
Just as he had during hearings, Poff helped make important legislative
history through his comments during debate.320 Of the 140 Republicans, 122
voted for H.R.J. Res. 1 and only eight opposed it on April 1
5. Collaboration: The Conference and Adoption
To resolve the differences between the House and Senate regarding the
content of the proposed amendment, a conference committee was
appointed.322 The committee included, from each body, three Democrats—
Senators Eastland, Ervin, and Bayh, and Representatives Celler, Byron G.
Rogers (Colorado), and James C. Corman (California).323 The committee
also contained two Republicans from each body—Senators Dirksen and
Hruska, and Representatives McCulloch and Poff.324 The conferees
ultimately resolved the differences, the major one being a compromise
between the House’s ten-day McCulloch-Poff limit for Congress to resolve
an intraexecutive branch dispute and the Senate formulation that encouraged
“immediate” action without any time limit.325 McCulloch was, apparently,
reluctant to move from the House’s position.326 Although the Democratic
majority would have allowed the conference committee to complete its work
on a partisan basis, Bayh and Celler were anxious to reach a bipartisan and
unanimous agreement.327 After two months of meetings, both sides agreed
to a twenty-one day period.328 Quicker agreement was reached on other
316. Id. at 7963–64.
317. Id. at 7966.
318. Feerick, supra note 4, at 192 n.103.
319. 111 CONG. REC. 7966–6
320. Id. at 7946 (statement of Rep. Poff) (stating that a vote for Vice President required
action in each house separately, not in a joint session); id. at 7951 (establishing that the
proposed amendment would not supplant Article II’s language that allowed Congress to
provide for death, resignation, removal, or inability of both the President and Vice President);
id. at 7963 (stating that absent a Vice President, sections 3 and 4 are inapplicable, but noting
that Congress could deal with the issue of double vacancy or inability by statute).
321. Id. at 7968–69.
322. Feerick, supra note 4, at 193.
323. Id. at 193 n.107.
325. Id. at 193.
326. BAYH, supra note 10, at 296–97, 303.
327. Id. at 303–04.
328. Feerick, supra note 4, at 193; see also BAYH, supra note 10, at 282–304 (describing
the events leading to the compromise).
matters. The House version of section 3 was adopted, which allowed a
President who had voluntarily transferred power to reclaim it based on a
similar declaration.329 The conferees compromised between the two- and
seven-day limits for the Vice President and Cabinet to respond to the
President’s declaration by agreeing to a four-day period.330 Poff’s
amendment that required Congress to convene within forty-eight hours was
accepted.331 In addition, at Hruska’s urging, language in section 4 was
modified to make clear that even if Congress created some “other body” to
replace the Cabinet, the Vice President would remain a necessary actor.332
Although the House quickly agreed to the conference report on June 30,
1965,333 Senate proceedings provided more drama. Bayh presented and
explained the conference report and thanked all who had contributed,
“especially” Hruska,334 and Hruska called for approval of the report.335 The
discussion became contentious as Democratic Senators Eugene McCarthy
(Minnesota) and Al Gore Sr. (Tennessee) began to criticize the amendment.
Gore, in particular, suggested that the language of section 4 allowed Congress
to supplement the Cabinet by creating an “other body” that could allow the
Vice President to shop between the Cabinet or that “other body” for an
agreeable partner to oust the President.336 Gore’s point was directed at
language added during the conference at Hruska’s insistence to clarify that
the Vice President was a necessary participant in a determination of
presidential inability even if Congress created “[an]other body” to replace the
Once again, Republicans came to Bayh’s aid to help address arguments
advanced by Democrats. John Sherman Cooper (Kentucky) engaged in a
colloquy with Bayh to establish legislative intent that creation of “[an]other
body” to act with the Vice President would supplant, not supplement, the
Cabinet338 and that the vice president would be a necessary party to the
decision in any case.339 After Gore persisted, another Republican, Javits,
came to Bayh’s aid to argue that Congress could specify that an “other body”
would be exclusive but that in any event he did not think the language was
329. Feerick, supra note 4, at 193.
330. H.R. REP. NO. 89-564, at 70 (1965) (Conf. Rep.).
332. Feerick, supra note 4, at 194.
333. 111 CONG. REC. 15,212–16 (1965).
334. Id. at 15,378–79.
335. Id. at 15,379–80.
336. Id. at 15,382–83.
337. FEERICK, supra note 6, at 101, 364 n.118.
338. 111 CONG. REC. 15,38
340. Id. at 15,385–86.
When the Senate returned to the matter on July 6, 1965, Javits promptly
reaffirmed his support.341 Although Ervin assumed the burden of replying to
Gore, so, too, did Dirksen,342 Javits,343 and Cooper.344
Ultimately, the conference report passed sixty-eight to five, with the
opponents consisting of four Democrats and one Republican.345 Twenty-one
Republicans voted for the proposed amendment and eight of the ten absent
Republicans announced their support.346
III. LESSONS FROM A BIPARTISAN ACCOMPLISHMENT
The Twenty-Fifth Amendment is properly called the Bayh Amendment in
recognition of Bayh’s able and indispensable leadership. Yet the proposed
amendment went to the states covered with Republican fingerprints. Sections
1, 3, and 4 followed the basic approach of the Eisenhower-Brownell-Rogers
proposal from 1958. Hruska added the seven-day challenge period for the
Vice President under section 4347 (later compromised to four days)348 and
language to clarify that the Vice President was a necessary party to a section
4 determination.349 Poff added the requirement that Congress reconvene in
response to the Vice President and Cabinet challenging a presidential
declaration.350 The twenty-one-day time period for Congress to resolve an
intraexecutive branch conflict was a compromise forced by the
McCullochPoff ten-day limit.351 Eisenhower, Brownell, and Nixon helped shape the
public and congressional disposition to find a solution; McCulloch, Poff,
Hruska, Dirksen, Javits, Cooper, and others made helpful floor statements;
Poff and others helped create important legislative history; and many
Republicans and Democrats compromised and supported a product different
from the one they would have preferred.352
The bipartisan character of the effort was celebrated. During the
September 1964 Senate debate, Mansfield expressed pleasure that S.J.
Res. 139 commanded support “on both sides of the aisle.”353 President
Johnson’s message to Congress on January 28, 1965, supporting S.J. Res. 1
and H.R.J. Res. 1 acknowledged a “consensus of an overwhelming”
341. Id. at 15,584.
342. Id. at 15,591–93.
343. Id. at 15,595.
345. Id. at 15,596.
347. 111 CONG. REC. 3274, 3276 (1965).
348. H.R. REP. NO. 89-564, at
) (Conf. Rep.).
349. FEERICK, supra note 6, at 101.
350. 111 CONG. REC. 7966–67 (1965).
351. H.R. REP. NO. 89-564, at 72.
352. See Feerick, supra note 4, at 203 (“The proposed twenty-fifth amendment has been
made possible because of the willingness of Democrats and Republicans alike to compromise
in the best interests of the Nation.”).
353. 110 CONG. REC. 23,00
congressional majority “without thought of partisanship” committed to
Some unique factors invited bipartisan behavior. The onerous and multiple
supermajority requirements associated with constitutional amendment
provided special incentive for bipartisanship. Even the Johnson 1964
landslide, which gave Democrats 68 percent of each house of Congress, did
not render bipartisanship unnecessary. While some Democrats, like Gore
and McCarthy, were vocal Senate critics,355 and twenty-one House
Democrats voted against H.R.J. Res. 1 in April 1965,356 several Republicans,
like Poff, McCulloch, Dirksen, Hruska, Cooper, and Javits, advocated for
Bayh-Celler. House Republicans supported H.R.J. Res. 1 at roughly the same
rate as Democrats. Bayh recognized that the two-thirds requirement
cautioned against making the issue partisan.35
7 When Dirksen stated at a
markup that something was agreeable to “the Minority,” Bayh’s
antennae went up for fear that the issue would become partisan.358
The fact that presidential succession and inability and Vice Presidential
vacancy were not campaign issues mitigated partisan pressures. Since a
legislator’s position on Bayh-Celler would affect few, if any, election votes,
lawmakers felt free to act based on their perception of the public interest with
limited regard to partisan considerations. The Amendment did not favor one
party or the other (and, ironically, the first six applications of the
TwentyFifth Amendment have been in Republican administrations).359 Interest
groups were not heavily engaged and the ABA was an independent and
respected nonpartisan endorser.
Finally, the two parties were not as ideologically aligned in the mid-1960s
as they later became. Republican liberals and moderates held seats in
industrial states and in New England, and Democratic conservatives still
dominated the South. Although ideology did not drive behavior on the
Twenty-Fifth Amendment, the nonideological nature of the parties made
bipartisan cooperation more the norm than the exception. Many other
measures in the mid-1960s—such as the Civil Rights Act of 1964, the Gulf
of Tonkin Resolution, and the Voting Rights Act of 1965—had bipartisan
Yet bipartisanship did not simply happen. Bayh and others contributed to
the bipartisan quality of the Twenty-Fifth Amendment by structuring the
proposal and proceedings to encourage Republican participation. By
incorporating the Eisenhower-Brownell-Rogers 1958 amendment as the
Senate Hearing, supra note 130, at 13 (reprinting Johnson’s message).
355. See 111 CONG. REC. 15,381–86 (1965).
356. Id. at 7969.
357. BAYH, supra note 10, at 209.
359. Gerald R. Ford and Nelson Rockefeller became Vice President under Section 2.
GOLDSTEIN, supra note 72, at 239–46. Ford became President under Section 1. Goldstein,
supra note 2, at 969. Presidents Ronald Reagan and George W. Bush (twice) briefly
transferred powers to their Vice Presidents under Section 3. GOLDSTEIN, supra note 166, at
framework for the disability provisions of his resolution, Bayh made it more
likely that Eisenhower Republicans would support his proposal.
Bayh and his ABA allies adopted an inclusive approach. They consciously
included Republicans like Brownell and Eisenhower in visible roles and were
solicitous to Republican legislators. They made a point to work closely with
Republicans including Dirksen and his staff, and with McCulloch and Poff,
knowing that their support would be important.360 Bayh encouraged
exchange with others, including Republicans, to improve the measure and
broaden support. When Poff justified his probing questioning during the
1965 House hearing, Bayh replied that no apology was needed because “[t]he
more questions we ask and the more we try to delve into each other’s minds,
the more all of us can see the difficulty of solving this problem and the more
opportunity we will have of finding a solution. So fire away.”361 McCulloch
justified the extensive questioning regarding a proposed constitutional
amendment and criticized some (but not Bayh, he hastened to add) “who have
raised the question of some of the minority to try to improve” the Bayh-Celler
proposal.362 Bayh repeatedly expressed his willingness to consider
objections and compromise.363 Many on both sides of the aisle had reason
to feel part of the process.
This inclusive disposition developed and spread because leaders on both
sides of the aisle preached and modeled a collaborative, problem-solving
approach to the issue. That was Nixon’s message in his March 1964
testimony, and it was apparent when Keating accommodated Bayh’s wish to
bring S.J. 139 to the floor, when Javits abandoned his proposal in favor of
Bayh’s, and when Dirksen and Hruska championed S.J. Res. 1 after their
amendments were defeated. Bayh argued at the Senate’s 1965 hearings that
the failure to solve problems regarding presidential inability was not due to a
lack of proposals but rather because of “a refusal or reluctance on the part of
the proposers to sit down and work out an agreement which we admit is not
perfect, but which is better than no solution at all.”364 Democrats, like Bayh,
Ervin, and Katzenbach, also compromised. Partisans on both sides of the
aisle seemed to respond to the words and deeds that encouraged and modeled
Bayh also recognized that Eisenhower, Nixon, and Brownell could speak
powerfully regarding presidential inability and the rise of the vice presidency
from their experiences during the Eisenhower administration. He gave them
prominent roles in the hearings he held, the ABA made Eisenhower and
Brownell featured speakers at its forum, and Bayh and other Democrats often
cited them as authorities in discussions of the proposal. In arguing that letter
agreements were insufficient, Bayh pointed out that both Eisenhower and
360. See BAYH, supra note 10, at 98–99, 105–06, 150; BECK, supra note 9, at 92, 98–100.
361. 1965 House Hearings, supra note 114, at 86 (statement of Sen. Birch Bayh).
363. Id. at 67; id. at 84 (referring to the importance of “give and take”); id. at 86 (discussing
the importance of questions).
Senate Hearing, supra note 130, at 42 (statement of Sen. Birch Bayh).
Nixon had taken that position.365 When Folsom spoke of the difficult
position of the Vice President during presidential disability deliberations
based on the Eisenhower experiences,366 Bayh replied that Eisenhower
thought that the Vice President had an inescapable constitutional
responsibility.367 Celler invoked Brownell’s earlier rationale for why a
constitutional amendment was needed368 and quoted Brownell in response to
criticism from Republican Representative Clarence Brown (Ohio).369
Democratic Senators often invoked Eisenhower’s observations.370
A proposal supported by Eisenhower and Johnson; Brownell and
Katzenbach; Javits, Cooper, and Ervin; and Poff, McCulloch, and Celler
became harder to challenge. Alternatives, like the enabling approach, could
not overcome the bipartisan pedigree of Bayh’s proposal. Ultimately the
arguments ended up being over details, like whether to include time limits
and whether creation of an “other body” would supplant or supplement the
Cabinet. It was easier to obtain the two-thirds majorities in the House and
Senate since proponents of the proposal could seek support from all
members, not simply Democratic ones. And the bipartisan support of the
measure strengthened the prospects of ratification of the proposed
What produced the Twenty-Fifth Amendment was the willingness of
legislators of both parties to focus on the national interest and on problem
solving and to operate in a way that encouraged those dispositions.
Democrats and Republicans agreed that existing provisions regarding
presidential succession and inability were inadequate, presented perils, and
needed to be addressed. They agreed that the status quo was unacceptable
and presented a less attractive option than alternative courses. This
disposition informed much behavior and persisted and grew as the proposal
passed the various stages of the bicameral amendment process before being
submitted to the states for ratification.
Rather than allowing disagreements to prevent achievement, the
participants emphasized and built upon their common ground. In so doing,
Republicans and Democrats together effectively addressed a problem that
had confounded the founding fathers and America for 180 years.
IV. PARTISANSHIP (AND BIPARTISANSHIP) IN A BROADER CONTEXT
Partisanship is, of course, one, but only one, of the ways in which
legislators and voters organize themselves to compete for political power and
to pursue policy objectives. Bipartisanship involves a recognition that
365. 1964 Senate Hearings, supra note 89, at 3 (statement of Sen. Birch Bayh).
366. 1965 Senate Hearing, supra note 130, at 53–54 (statement of Sen. Birch Bayh).
367. Id. at 54.
368. Id. at 55.
369. 111 CONG. REC. 7936 (1965).
370. Id. at 3255 (statement of Sen. Ervin) (recalling Eisenhower’s emphasis on the
importance of party continuity in the vice presidency); see also 1965 Senate Hearing, supra
note 130, at 54 (statement of Sen. Birch Bayh) (invoking Eisenhower’s observations regarding
the Vice President’s role in determining presidential disability).
sometimes it is advantageous to work with partisan rivals to identify and
pursue objectives collaboratively rather than competitively.
Partisanship is by no means the only obstacle to cooperative political
behavior. People organize based on a range of demographic and other
factors. Sometimes institutional commitments dictate political behavior and
impede cooperation, such as when different legislative committees battle
over jurisdiction, when Senators and representatives insist on the product of
their own house, or when congressmen and executive officials divide
regarding separation of powers issues. Sometimes egotism presents the
obstacle as when people are unwilling to relinquish their own proposal or
cede or share credit. Many of these divisions appeared when Congress
considered how to address presidential succession and inability during the
The hearings and debates on the Twenty-Fifth Amendment included
numerous statements from members of Congress and other experts on the
issue, all of which ran to nearly 1000 pages. Yet the voluminous legislative
record contains no wiser or more eloquent statement of the challenge of
collaborative problem solving than three paragraphs in the remarks of a
twenty-seven-year-old lawyer testifying before Congress for the very first
time during the hearings of the Senate Subcommittee on Constitutional
Amendments on February 28, 1964. Here are those words:
Perhaps one of the main reasons for the continued failure to solve this
problem has been the great diversity of proposals. All have some merit.
None is completely without objection. Each proposal has its adherents. No
proposal has ever commanded enough support to be adopted. I am
convinced that this problem can be solved.
However, I am equally convinced that the problem will never be solved
if the trend persists whereby each of us stubbornly adheres to his own point
of view. If this problem is ever to be solved men must agree and if they are
to agree, they must actively work at it.
The time has come for those who are genuinely interested in the safety
of this Nation to stop emphasizing those points on which they differ and to
start emphasizing those points on which they agree. It is urgent that the
problem be solved now. To miss this opportunity and again leave unsolved
one of the most serious problems ever to confront the Congress would be
to trifle with the security of this great Nation. Therefore, we must make
every human effort to agree on a workable solution.371
This comment diagnosed the perennial problem that had prevented
progress on presidential succession and inability as well as in many other
areas. It is easier to disagree than to agree, but a chorus making “My Way”
the common creed is not the route to solving communal problems. Instead,
we must prioritize problem solving, talk to one another, focus on the common
objective, and build from areas of agreement, rather than emphasize
Senate Hearings, supra note 89, at 150 (statement of John D. Feerick).
differences. And work, work, work! The message was optimistic in its faith
that the problem could be solved but realistic regarding the challenges. It
was prescient in suggesting the urgent need for a solution and wise in
recognizing that focusing on common interests and shared ideas was the route
to collaboration and agreement.
Bayh embraced the message he heard at the February 28, 1964, hearings
and professed it. During the January 29, 1965, Senate hearing, Bayh
remarked that the obstacle to dealing with presidential inability historically
had been the “many different proposals and a refusal or reluctance on the part
of the proposers to sit down and work out an agreement which we admit is
not perfect, but which is better than no solution at all.”372 Bayh closed his
testimony before the House Judiciary Committee on February 9, 1965, by
expressing a thought quite similar to the one he had heard a year earlier:
The main barrier, I want to emphasize, to our ability to find a solution has
been the fact that so far we have had so many different opinions that we
have never been able to come close to a consensus . . . . This in no way
precludes this body from making improvements to the consensus, but I
would ask you to consider once again the impossibility of finding
perfection and the gravity of the situation which now exists in which we
have no answer whatsoever.373
People of Fordham no doubt recognize those words of that young witness
as the voice of John Feerick and recognize in the 1964 statement the enduring
message and course of a lifetime. Those words resonated in Congress, and
the suggested approach helped Bayh, the ABA, and their Republican allies to
bridge the various partisan and institutional divides in order to propose the
Of course there are problems that resist solution, where the common
ground is too small or the divisions too deep or the emotions too raw. It takes
two to tango, and sometimes there is not a willing partner. And, not all parties
will have the patience or the wisdom or the skill to find the sweet spot where
collaboration can occur.
But one-half century ago, the “Feerick Way” helped Congress solve
problems that the likes of George Washington, Alexander Hamilton, and
James Madison had left to future generations—problems their successors had
exacerbated and failed to solve for nearly 180 years. Perhaps that same
approach—the approach that provided the foundation for the bipartisan effort
that led to the Twenty-Fifth Amendment—can also help us to solve many of
the problems that currently afflict our communities, our nation, and the world
in which we live. I hope so.
A. Incorporating a Republican Proposal .................................... 1149 B. Early Prominent Republican Supporters ................................ 1149
1. Herbert Brownell ............................................................. 1150
2. Dwight D. Eisenhower..................................................... 1152
3. Richard M. Nixon ............................................................ 1154 C. Creating a Climate for a Cooperative Effort.......................... 1154 D. Legislative Efforts .................................................................. 1157
1. 1964 Republican Collaboration: The Senate .................. 1157
2. Winning Celler's Support: Calling on Brownell Again .. 1158
3. 1965 Republican Collaboration: The Senate .................. 1159
4. 1965 Republican Collaboration: The House ................... 1162
5. Collaboration: The Conference and Adoption ................ 1166 III. LESSONS FROM A BIPARTISAN ACCOMPLISHMENT . ......................... 1168
1. U.S. CONST. amend. XXV.
2. See Joel K. Goldstein , Taking from the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 FORDHAM L . REV. 959 , 1006 - 07 ( 2010 ) ; Arthur Krock, In the Nation: 'The Best Obtainable' Solution , N.Y. TIMES , July 8 , 1965 , at 30 (praising Bayh).
3. See, e.g., John D. Feerick, Vice Presidential Succession: In Support of the BayhCeller Plan , 18 S.C. L. REV . 226 , 234 ( 1966 ); George D. Haimbaugh Jr., Vice Presidential Succession: A Criticism of the Bayh-Cellar [sic] Plan , 17 S.C. L. REV . 315 , 316 ( 1965 ) (referring to the “Bayh-Celler proposed amendment”).
4. JOHN D. FEERICK , FROM FAILING HANDS: THE STORY OF PRESIDENTIAL SUCCESSION 238-40 ( 1965 ) ; John D. Feerick, The Proposed Twenty-Fifth Amendment to the Constitution, 34 FORDHAM L . REV. 173 , 180 - 81 , 186 , 190 - 92 ( 1965 ).
5. John D. Feerick , Letter to the Editor, Presidential Succession, N.Y. TIMES , Jan. 12 , 1965 , at 36 (crediting Bayh, Celler, and Johnson); Interview by Paige E. Mulhollan with Birch Bayh, U.S. Sen . from Ind. (Feb. 12 , 1969 ) http://www.lbjlibrary.net/assets/ documents/archives/oral_histories/bayh_b/Bayh.PDF [https://perma.cc/Z9NP-Q7ST].
6. See generally JOHN D. FEERICK , THE TWENTY-FIFTH AMENDMENT : ITS COMPLETE HISTORY AND APPLICATIONS 80- 82 , 92 - 93 (3d ed. 2014 ).
7. See 111 CONG. REC. 7940 ( 1965 ) (statement of Rep. Poff) (stating that no one is “more deserving” than the ABA for the proposal of the Twenty-Fifth Amendment); 110 CONG . REC. 22 , 983 ( 1964 ) (statement of Sen. Bayh) (giving “particular credit” to the ABA for doing “more than any single group” to help advance the amendment ).
8. JOHN C. JEFFRIES JR., JUSTICE LEWIS F. POWELL , JR. 201 - 04 ( 1994 ).
9. See LOWELL R. BECK , I FOUND MY NICHE: A LIFETIME JOURNEY OF LOBBYING AND ASSOCIATION LEADERSHIP 91 ( 2016 ) (“It's impossible to express enough the contributions John Feerick gave to obtaining the solution to Presidential Inability and Succession .”); Joel K. Goldstein, Introduction to FEERICK, supra note 6, at ix, xii; Joel K. Goldstein, Celebrating the 50th of the 25th Amendment! , HUFFINGTON POST (Feb. 10 , 2017 , 3 :31 PM), http://www.huffingtonpost.com/entry/589e1bb7e4b080bf74f03bcc [https://perma.cc/BY2RW8QU] (referencing Feerick's roles) .
10. BIRCH BAYH , ONE HEARTBEAT AWAY: PRESIDENTIAL DISABILITY AND SUCCESSION 112 ( 1968 ) (describing Brownell as a “great help”); id. at 162 (noting that Brownell was “invaluable”).
11. Id . at 75-76 (praising Eisenhower for his support).
12. Id . at 73 (stating that Nixon's “experiences and opinions” were “valuable”); id. at 77 (describing Nixon's thoughts on succession and disability as “essential”).
13. Id . at 297 (noting that McCulloch was “very helpful”).
14. Id . (crediting Poff for his considerations and inquiries); Richard H. Poff, Presidential Inability and the Twenty-Fifth Amendment , STUDENT L.J., Dec . 1965 , at 15 , 15 .
15. See , e.g., FEERICK, supra note 6 , at 105-07; Goldstein, supra note 2, at 998- 1012 . See generally BAYH, supra note 10.
16. Feerick , supra note 4, at 203 (“ The proposed twenty-fifth amendment has been made possible because of the willingness of Democrats and Republicans alike to compromise in the best interests of the Nation .”).
17. Id . 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 .”).
19. See Joel K. Goldstein , The Vice Presidency and the Twenty-Fifth Amendment: The Power of Reciprocal Relationships , in MANAGING CRISIS: PRESIDENTIAL DISABILITY AND THE 25TH AMENDMENT 165 , 198 - 200 (Robert E. Gilbert ed., 2000 ) (discussing various contingencies).
20. See FEERICK , supra note 4 , at 50 ( stating that original-intent evidence shows that the Vice President “was merely intended to discharge the powers and duties of the President temporarily”); Joel K. Goldstein, History and Constitutional Interpretation: Some Lessons from the Vice Presidency , 69 ARK. L. REV. 647 , 668 - 74 ( 2016 ) (“[O]riginal history seemed to suggest that the Vice President would simply act as, but not become , President . . . .”).
21. Goldstein , supra note 20, at 674.
22. Goldstein , supra note 2, at 966-67.
23. FEERICK, supra note 4, at 135-36, 170 - 72 ; Joel K. Goldstein , Vice-Presidential Behavior in a Disability Crisis: The Case of Thomas R . Marshall, POL. & LIFE SCI., Fall 2014 , at 37 , 46 - 47 .
24. Eisenhower suffered a heart attack on September 24, 1955 . IRWIN F. GELLMAN, THE PRESIDENT AND THE APPRENTICE: EISENHOWER AND NIXON, 1952 - 1961 , at 260 ( 2015 ). He had an ileitis operation on June 9 , 1956 . Id. at 308. And he suffered a stroke on November 25, 1957 . Id. at 364; see also FEERICK, supra note 6 , at 19-23.
25. See Herbert Brownell Jr., Presidential Disability : The Need for a Constitutional Amendment, 68 YALE L .J. 189 , 189 ( 1958 ); Goldstein, supra note 2, at 964.
26. The Constitution empowered Congress to provide by statute “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.” U.S. CONST. art. II, § 1, cl. 6. The grant of power to address a dual vacancy was interpreted to preclude Congress from addressing simply presidential inability . See Ruth C. Silva, Presidential Succession and Disability , 21 L. & CONTEMP . PROBS. 646 , 662 ( 1956 ).
27. Presidential Inability: Hearing Before the Special Subcomm. on Study of Presidential Inability of the H . Comm. on the Judiciary, 85th Cong. 4-5 , 7 - 8 ( 1957 ) [hereinafter 1957 House Hearings] (statement of Herbert Brownell Jr ., Att'y Gen.).
28. Id . at 7.
29. Id .
30. Id .
31. Id . at 8.
32. Id .; Brownell, supra note 25, at 197.
33. Brownell , supra note 25, at 197-200.
34. Feerick , supra note 4, at 181.
35. Id .
36. Brownell , supra note 25, at 201.
37. Id . at 201-02.
38. Id . at 207; see S.J. Res . 161 , 85th Cong. ( 1958 ).
39. S.J. Res . 161 § 4 .
40. Id .; see also Note, Legislation: Presidential Disability and Succession , 32 ST. JOHN'S L. REV . 357 , 365 ( 1958 ).
41. Feerick , supra note 4, at 182.
42. FEERICK, supra note 6, at 53.
43. Agreement Between the President and the Vice President as to Procedures in the Event of Presidential Disability , PUB. PAPERS 196 (Mar. 3 , 1958 ).
44. Id .
45. Goldstein , supra note 20, at 677-78.
46. Id .
47. Id . at 676 & n.199.
48. Letter from Dwight D. Eisenhower to Richard Milhous Nixon (Feb. 5 , 1958 ), in 19 THE PAPERS OF DWIGHT DAVID EISENHOWER 711 , 711 - 13 (Louis Galambos & Daun Van Ee eds., 2001 ).
49. See Agreement Between the President and the Vice President as to Procedures in the Event of Presidential Disability , supra note 43.
50. White House Statement and Text of Agreement Between the President and the Vice President on Procedures in the Event of Presidential Inability , PUB. PAPERS 561 (Aug. 10 , 1961 ) (describing the agreement between Kennedy and Johnson).
51. FEERICK, supra note 6, at 320-37 (providing the original agreements between Johnson and McCormack) .
52. Statement of Procedures for Use in the Event of Presidential Inability, 2 PUB . PAPERS 1044 ( Oct . 5 , 1965 ).
53. S.J. Res . 161 , 85th Cong. ( 1958 ). Joining Kefauver were Democrats Thomas Hennings (Missouri) and Olin D. Johnston (South Carolina) and Republicans Everett Dirksen (Illinois), Roman Hruska (Nebraska), William Langer (North Dakota), Arthur Watkins (Utah), William Jenner (Indiana), and John M. Butler (Maryland).
54. S.J. Res . 28 , 88th Cong. ( 1963 ).
55. BAYH, supra note 10, at 26-28.
56. S.J. Res . 35 , 88th Cong. ( 1963 ); BAYH, supra note 10, at 27-28.
57. S.J. Res . 35 .
58. Presidential Inability: Hearings on S.J. Res . 28, S.J. Res . 35 , and S. J. Res. 84 Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 88th Cong . 13 - 17 ( 1963 ) [hereinafter 1963 Senate Hearings] (statement of Lewis F. Powell Jr ., PresidentElect Nominee, American Bar Association).
59. Id . at 32 (statement of Nicholas deB . Katzenbach, Deputy Att'y Gen.).
60. S. REP . NO. 88 - 1017 , at 2 ( 1964 ).
61. Feerick , supra note 4, at 183; see JOSEPH BRUCE GORMAN, KEFAUVER: A POLITICAL BIOGRAPHY 367 ( 1971 ).
62. John D. Feerick , The Problem of Presidential Inability-Will Congress Ever Solve It? , 32 FORDHAM L. REV. 73 ( 1963 ).
63. John D. Feerick , Letter to the Editor, Fixing Presidential Succession, N.Y. TIMES , Nov. 17 , 1963 , at E8.
64. Goldstein , supra note 2, at 965.
65. See id. at 964.
66. The Presidential Succession Act of 1947 , Pub. L. No. 80 - 199 , 61 Stat. 380 ( codified as amended at 3 U .S.C. § 19 ( 2012 )).
67. 3 U.S.C. § 19(a)-(b).
68. FEERICK, supra note 4, at 6; Goldstein, supra note 2, at 965.
69. Two Old Timers Next in Line for Presidency of U.S., CHI . TRIB., Dec. 1 , 1963 , at 30.
70. See James Reston, The Problem of Succession to the Presidency , N.Y. TIMES , Dec. 6 , 1963 , at 33 ( discussing McCormack's unsuitability for presidency); The Succession, CHI . TRIB., Dec . 10 , 1963 , at 20 ( referring to Johnson's heart attack and the advanced age of his potential successors); see also Robert E. Gilbert, The Genius of the Twenty-Fifth Amendment: Guarding Against Presidential Disability but Safeguarding the Presidency, in MANAGING CRISIS: PRESIDENTIAL DISABILITY AND THE 25TH AMENDMENT , supra note 19, at 25 , 30; Goldstein, supra note 2, at 965.
71. See John D. Feerick , The Vice-Presidency and the Problems of Presidential Succession and Inability, 32 FORDHAM L . REV. 457 , 457 - 458 & n.3 ( 1964 ) (describing the media's discussion of problems).
72. See generally JOEL K. GOLDSTEIN, THE MODERN AMERICAN VICE PRESIDENCY: THE TRANSFORMATION OF A POLITICAL INSTITUTION ( 1982 ).
73. Joel K. Goldstein , The New Constitutional Vice Presidency, 30 WAKE FOREST L. REV . 505 , 536 - 40 ( 1995 ).
74. BAYH, supra note 10, at 29.
75. S.J. Res . 28 , 88th Cong. ( 1963 ).
76. Id .
77. 1963 Senate Hearings, supra note 58 , at 32 (statement of Nicholas deB . Katzenbach, Deputy Att'y Gen.).
78. Id . at 15-16 (statement of Lewis F. Powell Jr ., President-Elect Nominee , American Bar Association); see S.J. Res . 84 , 88th Cong. ( 1963 ). Senate Joint Resolution 84 was proposed by Senators Roman Hruska and John McClellan. See S.J. Res . 84 , 88th Cong. ( 1963 ). It resembled S. J. Res . 35 , but required that congressionally mandated procedures be consistent with separation of powers and the system of checks and balances . Id. § 2.
88. Eisenhower Asks Succession Shift: Favors Secretary of State to Follow Vice President , N.Y. TIMES , Dec. 8 , 1963 , at 69; Thomas P. Ronan , Eisenhower, Truman and Nixon Weigh Presidential Succession , N.Y. TIMES , Jan. 9 , 1964 , at 19.
89. Presidential Inability and Vacancies in the Office of Vice President: Hearings on S . J. Res . 13 et al. Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 88th Cong . 3 ( 1964 ) [hereinafter 1964 Senate Hearings] (statement of Sen. Birch Bayh, Chairman, Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary) (“These questions can be solved by amending the Constitution . Some say they could best be solved by statute. Frankly, I disagree . Many distinguished lawyers disagree. What most lawyers agree upon is that if there exists a reasonable constitutional doubt, the best method to eradicate any doubt is to amend the Constitution .”).
90. Id .; FEERICK, supra note 6, at 58 ( noting that several “proponents felt that Congress had the power to legislate procedures” to resolve the questions of presidential inability and succession ).
91. FEERICK, supra note 6, at 59-71.
92. S.J. Res . 13 , 88th Cong. ( 1963 ).
93. S.J. Res . 143 , 88th Cong. ( 1963 ); S.J. Res . 140 , 88th Cong. ( 1963 ).
94. H.R.J. Res . 818 , 88th Cong. ( 1963 ) (proposing a constitutional amendment whereby the Senate would elect a Vice President) .
95. S.J. Res . 147 , 88th Cong. ( 1963 ); S.J. Res . 138 , 88th Cong. ( 1963 ).
96. 1964 Senate Hearings, supra note 89 , at 79-80 (statement of Sen. Frank Church).
97. Id . at 237 (statement of Richard M. Nixon, former Vice President).
98. See FEERICK , supra note 6 , at 64-71; GOLDSTEIN, supra note 72, at 233-39 ( presenting various plans regarding vice presidential vacancy); Feerick , supra note 71, at 487- 89 & nn . 168 - 77 .
99. S.J. Res . 35 , 88th Cong. ( 1963 ).
100. FEERICK, supra note 6, at 62.
101. U.S. CONST. art. V.
102. Id .
103. FEERICK, supra note 4, at 60-61.
104. Joel K. Goldstein , Akhil Reed Amar and Presidential Continuity , 47 HOUS. L. REV. 67 , 86 ( 2010 ).
105. Goldstein , supra note 23, at 42-43; see ROSE MCDERMOTT , PRESIDENTIAL LEADERSHIP , ILLNESS AND DECISION MAKING 65-66 ( 2008 ).
106. Feerick , supra note 71, at 481-83, 482 nn. 156 - 57 . The bill, which made the Speaker, followed by the President pro tempore, next in the line of succession behind the Vice President, passed in the House by a vote of 365 to 11 . Id. at 482. Only ten Democrats and one Republican opposed the bill . Id. at 482 n.157 . In the Senate, the bill passed by a vote of 50 to 35 . Id. at 482. Forty-seven Republicans and three Democrats voted in favor of the bill and thirty-five Democrats voted against it . Id. at 482 n.156.
107. HERBERT BROWNELL WITH JOHN P. BURKE , ADVISING IKE : THE MEMOIRS OF HERBERT BROWNELL 277-78 ( 1993 ).
108. Feerick , supra note 4, at 186 n.55.
109. See S.J. Res . 139 , 88th Cong. § 6 ( 1963 ).
110. Change Doubted in Succession Law: Senate Panel Narrows Hunt for Solution on Presidency , N.Y. TIMES , Mar. 15 , 1964 , at 40.
111. BAYH, supra note 10, at 92-93, 95 .
112. Id . at 35-36.
113. Id . at 35 (stating that former Attorney General Brownell's first proposal, as modified by Rogers and Kefauver, “came closest to achieving the goals we believed to be important” and became the “basis for our constitutional amendment”).
114. See , e.g., Presidential Inability: Hearings on H.R . 836 et al. Before the H. Comm. on the Judiciary, 89th Cong . 72 ( 1965 ) [hereinafter 1965 House Hearings] (statement of Rep . John V. Lindsay) (suggesting that the Bayh-Celler plan was “an almost exact restatement of the original Brownell proposal” made to the eighty-fifth Congress); see also 111 CONG . REC. 7948 ( 1965 ) (statement of Rep. Lindsay) (making same observation); BROWNELL, supra note 107, at 278 (describing the Eisenhower provisions as providing the “nucleus” of the TwentyFifth Amendment) .
115. Feerick , supra note 4, at 184 ( noting that Bayh's “provisions were essentially the same as those embodied in the revised Eisenhower Administration approach ”).
116. See BAYH , supra note 10, at 162 ( stating that Brownell had become “invaluable” by December 1964 ).
117. Id . at 49 (describing Brownell as part of a “nucleus” in the ABA meeting favoring Bayh's approach) .
118. See Feerick, supra note 4 , at 185.
119. John D. Feerick , The Twenty-Fifth Amendment : Its Origins and History, in MANAGING CRISIS: PRESIDENTIAL DISABILITY AND THE 25TH AMENDMENT , supra note 19, at 1, 15; see JAMES M. RONAN , LIVING DANGEROUSLY : THE UNCERTAINTIES OF PRESIDENTIAL DISABILITY AND SUCCESSION 59 , 70 ( 2015 ).
120. Marjorie Hunter , Presidential Succession Plan Given, N.Y. TIMES , Feb. 26 , 1964 , at 16 ( reporting that Brownell's testimony was consistent with Bayh plan) .
121. 1964 Senate Hearings, supra note 89 , at 135 (statement of Herbert Brownell, former Att'y Gen .).
122. Id . at 136.
123. Id . at 137.
124. Id . at 138.
125. Id . at 141-42.
126. BROWNELL, supra note 107, at 23-31.
127. BAYH, supra note 10, at 34-35.
128. ABA National Forum on Presidential Inability and Vice Presidential Vacancy (May 25 , 1964 ) (transcript available at the Fordham University School of Law Maloney Library).
129. Herbert Brownell , The History of the Problem, Remarks at the ABA National Forum on Presidential Inability and Vice Presidential Vacancy , supra note 128 , at 2-5.
130. Presidential Inability and Vacancies in the Office of the Vice President: Hearing on S . J. Res . 1 et al. Before the Subcomm. on Constitutional Amendments of the S. Comm. on the Judiciary, 89th Cong . 57 - 74 ( 1965 ) [hereinafter 1965 Senate Hearing] (statement of Herbert Brownell, former Att'y Gen .).
131. Id . at 64 , 67 .
132. S.J. Res . 1 , 89th Cong . ( 1965 ).
133. See , e.g., 1965 Senate Hearing, supra note 130, at 63-64 , 71 (responding to Folsom's preference for a joint session of Congress to confirm a vice presidential nominee); id. at 64 (responding to Senator Miller's view that the amendment should specify that the vice presidential nominee needed to be from the President's party); id . at 64-65 ( responding to Senator Hruska's concerns regarding separation of powers); id. at 65 (responding to Folsom's concerns regarding the Vice President initiating disability determination); id . at 71-73 ( responding to Senator Hruska's concerns) .
134. Id . at 63-64.
135. Id . at 65-66.
136. Id . at 66-67.
137. 1965 House Hearings, supra note 114 , at 238.
138. Id . at 238-58.
139. Brownell , supra note 25, at 200. Brownell had also articulated this idea in his 1957 testimony before a subcommittee of the House of Representatives addressing presidential inability . See 1957 House Hearings, supra note 27 , at 31 (statement of Herbert Brownell Jr ., Att'y Gen.).
140. 1964 Senate Hearings, supra note 89 , at 136 (statement of Herbert Brownell Jr ., former Att'y Gen.).
141. Id .
142. S. REP . NO. 89 - 66 , at 13 ( 1965 ) ; S. REP . NO. 88 - 1382 , 11 - 12 ( 1964 ).
143. H.R. REP . NO. 89 - 203 , at 13 ( 1965 ).
144. See , e.g., 111 CONG. REC. 15 , 591 - 92 ( 1965 ) (statement of Sen . Dirksen); id. at 7942 (statement of Rep . Poff) (“If one assumes that the Vice President and most of the members of the President's Cabinet are charlatans, revolutionaries and traitors, we are foolish to attempt any solution . . . . Certainly, we want a government of laws and not of men, but somewhere in the process of administration of the laws, we must commit our fate to the basic honesty of the administrators. Somewhere, sometime, somehow, we must trust somebody .”).
145. See BAYH , supra note 10, at 67 (describing Brownell as “an extremely effective witness”); id. at 196 (describing Brownell “as usual, highly articulate and very helpful”).
146. Eisenhower Lists Succession Views: Bids President Name a Vice President for Open Office , N.Y. TIMES , Mar. 5 , 1964 , at 25. Brownell helped to obtain the letter and to ensure that it was generally consistent with Bayh's proposal . See BAYH, supra note 10, at 61-62 , 75 .
147. 1964 Senate Hearings, supra note 89 , at 232 (statement of Sen. Birch Bayh) (reprinting Eisenhower's letter) .
148. Id .
149. Id .
150. Id .; BAYH, supra note 10, at 76.
151. BAYH, supra note 10, at 119-20; BECK, supra note 9, at 95.
152. BAYH, supra note 10, at 119-20.
153. Dwight D. Eisenhower , The Major Address, Remarks at the ABA National Forum on Presidential Inability and Vice Presidential Vacancy, supra note 128 , at 23-24.
154. Id . at 26.
155. Id . at 25.
156. Id . at 25-26.
157. BAYH, supra note 10, at 124 ( referring to the media coverage of Eisenhower's remarks); BECK, supra note 9, at 96 (stating that “[t]he press turned out in droves”).
158. BAYH, supra note 10, at 123.
159. Id . at 124.
160. Id .; see also 1965 House Hearings, supra note 114 , at 224 (statement of Lewis F. Powell Jr ., President , American Bar Association) (referring to Eisenhower's comments as “quite a dramatic demonstration of the need for action”).
161. 1964 Senate Hearings, supra note 89 , at 234-50 (statement of Richard M. Nixon, former Vice President).
162. Id . at 235-37, 249 - 50 .
163. Id . at 241.
164. Id . at 242.
165. Id . at 245-46.
166. See JOEL K. GOLDSTEIN , THE WHITE HOUSE VICE PRESIDENCY: THE PATH TO SIGNIFICANCE , MONDALE TO BIDEN 25- 26 ( 2016 ).
167. 1964 Senate Hearings, supra note 89 , at 250.
168. BAYH, supra note 10, at 83; id. at 89 ( describing Nixon as an “excellent witness”).
169. Id . at 89 (stating that Nixon brought the media “in droves” and attracted “greatly needed publicity” for the issue ).
170. Id .
171. Editorial , To Narrow the Risk, WASH. POST, Mar. 9 , 1964 , at A14; see also BAYH, supra note 10 , at 182 ( referring to the importance of support from Eisenhower and Nixon) .
172. See Part II.C.
186. Id . at 53 (statement of Sen. Jacob K. Javits) (announcing an amendment to S.J. Res. 138 that would require Congress to elect a Vice President in a joint session “by and with the advice and consent” of the President) . The change would grant the President the “authority to reject a nominee who is unsuitable to him . Id.
187. BAYH, supra note 10, at 135-36.
188. Id . at 99-101.
189. 1965 House Hearings, supra note 114, at 39-70 , 77 - 95 (testimony of Sen. Birch Bayh).
190. Id . at 45-63.
191. Id . at 63.
192. Id .
193. Id . at 86.
194. Id . at 167.
195. 1965 Senate Hearing, supra note 130 , at 46-55 (statement of Marion B . Folsom , Chairman, Committee for Improvement of Management in Government, Committee for Economic Development) .
196. See id. at 48 (favoring the confirmation of the Vice President by a joint session of Congress and the initiation of an inability determination by Cabinet rather than the Vice President); id. at 49 (opposing the use of Congress as the decider of a disagreement between the President and Vice President regarding presidential inability and suggesting that the Cabinet is better suited for that role ).
197. Id . at 50; see 1965 House Hearings , supra note 114 , at 166 (statement of Marion B . Folsom , Chairman, Committee for Improvement of Management in Government, Committee for Economic Development) (“That is why we think you ought to have this amendment, one way or the other . Whether you go along with the Bayh amendment or not, we think it is necessary that something be done .”).
198. 1964 Senate Hearings, supra note 89 , at 250-52.
199. BAYH, supra note 10, at 101-02.
200. The Republican cosponsors were Senators Clifford Case (New Jersey) , John Sherman Cooper (Kentucky) , Peter Dominick (Colorado) , Jacob Javits (New York), Thomas Kuchel (California), James Pearson (Kansas), Leverett Saltonstall (Maine), Hugh Scott (Pennsylvania), Milward Simpson (Wyoming), and Hiram Fong (Hawaii) . See S.J. Res . 139 , 88th Cong. ( 1964 ).
201. BAYH, supra note 10, at 127-28.
202. Id . at 106-07, 127 .
203. Id . at 128.
204. Cabell Phillips , Presidential Disability Amendment Is Voted by Senate Panel, N.Y. TIMES , May 28 , 1964 , at 22.
205. BAYH, supra note 10, at 130-33; see also S. REP . NO. 88 - 1382 , at 1 ( 1964 ).
206. BAYH, supra note 10, at 138.
207. Id . at 140.
208. Id .
209. 110 CONG. REC. 22 , 992 - 93 ( 1964 ) (statement of Sen . Saltonstall); id. at 22 , 993 - 94 (statement of Sen. Fong); id. at 22 , 999 - 23 ,000 (statement of Sen. Javits); id. at 23 , 000 - 01 (statement of Sen. Pearson).
210. In addition to the four Republican Senators, seven Democratic Senators spoke in favor of S . J. Res. 139. Id. at 22 ,983, 22 , 986 - 88 (statement of Sen. Bayh); id. at 22 , 988 - 92 (statement of Sen. Ervin); id. at 22 , 990 - 92 (statement of Sen. Monroney); id. at 22 ,994 (statement of Sen. Bible); id. at 22 , 997 - 99 (statement of Sen. Church); id. at 23 ,000 (statement of Sen. Hart); id. at 23 ,001 (statement of Sen. Mansfield).
211. Id . at 23 , 000 - 01 .
212. Id . at 23 , 056 .
213. Id . at 23 , 061 .
214. Id .
215. Id .
216. BAYH, supra note 10, at 159-60.
217. Id . at 161-62.
218. Id . at 181.
219. Id . at 162-63.
220. See , e.g., Rep . Emanuel Celler, Chairman, House Comm. on the Judiciary, Address: The Problem of Presidential Inability-A Proposed Solution (Aug. 2 , 1956 ), in 19 F.R.D. 153
236. Id . at 206-07.
237. Id . at 209.
238. Id . at 208-09.
239. Id . at 210.
240. Id . at 210-11.
241. Id . at 212 (providing that other disability notifications by the President or Vice President would go to the Speaker and President of the Senate and replacing “immediately decide the issue” with “immediately proceed to decide the issue” in the section regarding Congress's role in resolving an intraexecutive branch dispute).
242. S. REP . NO. 89 - 66 , at 22- 24 ( 1965 ) (providing the individual views of Senator Roman L . Hruska).
243. BAYH, supra note 10, at 212-13; see also S. J. Res . 6 , 89th Cong . ( 1965 ) ; S. REP . NO. 89 - 66 , at 17- 21 ( 1965 ) (providing the individual views of Senator Everett Dirksen); id . at 22- 24 (providing the individual views of Senator Roman L . Hruska).
244. BAYH, supra note 10, at 213; Feerick, supra note 4, at 187.
245. 111 CONG. REC. 3257 - 58 ( 1965 ).
246. Id . at 3261-63.
247. Id . at 3262-63.
248. Id . at 3265.
249. Id . at 3285.
250. See , e.g., id. at 3253-54 (statement of Sen . Ellender) (suggesting that Congress could legislatively address presidential inability); id . at 3256-57 ( questioning a provision allowing Congress to create another body to act regarding presidential inability); id . at 3275 , 3281 (statement of Sen. Bass) (questioning the propriety of allowing congressmen from an opposing party to vote on vice presidential confirmation and suggesting a time limit for section 2); id . at 3275-76, 3278 - 79 (statement of Sen. Pastore) (calling for a time limit for Congress to act on presidential inability); id. at 3277 (statement of Sen. Harris) (calling for a time limit in section 2); id. at 3279 (statement of Sen. Hart) (suggesting a time limit for Congress to act on presidential inability).
251. Tom Wicker, Senate Votes Amendment on Presidential Disability, N.Y. TIMES , Feb. 20 , 1965 , at 1.
252. BAYH, supra note 10, at 273.
253. Id . at 253-260; see 111 CONG . REC. 3257 - 58 ( 1965 ) (statement of Sen. Simpson); id . at 3261-63 (statement of Sen. Fong) ; id. at 3265 (statement of Sen. Carlson); id. at 3271 (statement of Sen . Saltonstall).
254. 111 CONG. REC. 3272 ( 1965 ). It had been reported that Democratic Senator Eugene McCarthy (Minnesota) opposed a constitutional amendment and would support Dirksen's enabling amendment rather than S . J. Res . 1. C.P. Trussell , M'Carthy Fights Disability Plan , N.Y. TIMES , Feb. 16 , 1965 , at 20. McCarthy did not vote on the Dirksen substitute but was paired as supporting it . 111 CONG. REC . 3272 ( 1965 ).
255. 111 CONG. REC. 3272 ( 1965 ). Those voting for the Dirksen substitute were Senators Bennett , Boggs, Case, Cotton, Dirksen, Hickenlooper, Prouty, Scott, Smith, Thurmond, Tower, and Williams . Id.
256. Id . Senators Dominick, Miller, Morton, Jordan, and Kuchel, though absent, also preferred Dirksen's substitute as did Democratic Senators Eugene McCarthy and Quentin Burdick . Id.
257. Id .
258. Id . at 3263.
259. Id . at 3285-86.
260. Id . at 3274 , 3276 .
261. Id . at 3270.
262. Id . at 3285.
263. H.R.J. Res . 1 , 89th Cong . ( 1965 ).
264. Id . § 5 .
265. S.J. Res . 1 , 89th Cong . § 5 ( 1965 ); BAYH, supra note 10, at 212.
266. H.R.J. Res . 119 , 89th Cong. § 5 ( 1965 ) ; 1965 House Hearings , supra note 114, at 3- 4 (statement of Rep. William M. McCulloch).
267. H.R.J. Res . 3 , 89th Cong . § 5 ( 1965 ) ; 1965 House Hearings , supra note 114 , at 68 (statement of Rep. Richard Poff).
268. 1965 House Hearings, supra note 114, at 4 (statement of Rep. William M. McCulloch).
269. Id . at 68.
270. See id. at I.
271. Id . at 3 (statement of Rep . William M. McCulloch ).
272. Id . at 4.
273. Id .
274. Id . at 67-68 (statement of Rep . William M. McCulloch) (describing the ten-day limit as “arbitrary”).
275. Id . at 231-32, 236 .
276. Id . at 59-60 (statements of Reps. Arch Moore, Charles Mathias , and William M. McCulloch).
277. Id . at 79-81 (statement of Arch Moore).
278. Id . at 85-86.
279. Id . at 88-89 (statement of Charles Mathias).
280. Id . at 89-92.
281. Id . at 92-93.
282. Id . at 85.
283. Id . at 97-98, 100 - 02 , 104 (statements of Reps. Richard Poff, William M. McCulloch , Charles Mathias , Arch Moore , and John Lindsay).
284. See id. at 64-65 (statement of Rep . Richard Poff) (suggesting that the Acting President “discharge” rather than “assume” the presidential powers and duties as Acting President); id. at 66 (requiring the President to “promptly” nominate a Vice President); id. at 78 (discussing the merits of allowing the “person next in line of presidential succession” to initiate a disability action in absence of a Vice President); id . at 81-84 (discussing the merits of allowing the Cabinet to initiate a disability determination); id. at 85 (arguing that only the Vice President, not the Cabinet or other body created by Congress, should be able to initiate proceedings); id . at 86-87 (proposing language to address vice presidential and presidential inability in the absence of a Vice President) . Poff was helped by a letter from John D. Feerick outlining areas of inquiry . See Letter from John D. Feerick to Richard Poff (Feb. 7 , 1965 ), http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1031&coconte=twentyfifth_amend ment_correspondence [https://perma.cc/8RH9-5RCT].
285. 1965 House Hearings, supra note 114 , at 66-70 (statements of Reps. Richard Poff and William M. McCulloch).
286. Id . at 187 , 233 - 34 , 236 - 37 (statement of Rep. Richard Poff).