Presidential Inability and the 88th Congress: Reaction to the Kennedy Assassination

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President John F. Kennedy’s assassination in November 1963 prompted renewed congressional interest in a constitutional amendment addressing presidential succession and inability.1 Lyndon B. Johnson’s succession to the presidency, which left the vice presidency vacant for fourteen months,2 also highlighted the Constitution’s lack of a mechanism for filling vice presidential vacancies.3 At the time, Johnson’s potential successors under the Presidential Succession Act, House Speaker John McCormack and Senate President pro tempore Carl Hayden, were 71 and 86 years of age, respectively.4

In the 88th Congress, Senator Birch Bayh of Indiana became Chair of the Senate Judiciary Committee’s Subcommittee on Constitutional Amendments after Senator Estes Kefauver’s death.5 On December 12, 1963, Senator Bayh introduced S.J. Res 139, a joint resolution proposing a constitutional amendment addressing presidential vacancy, vice presidential vacancy, and presidential inability.6 In statements on the Senate floor, Bayh emphasized the importance of ensuring that the nation would always possess a President “capable of making rational decisions and rational determinations” in an age of nuclear weapons.7 S.J. Res. 139 was referred to the Senate Judiciary Committee.

In August 1964, the Senate Judiciary Committee favorably reported a revised version of the joint resolution.8 According to the committee’s report, the draft amendment was intended to: (1) separate constitutional rules on presidential succession, which involves a permanent vacancy, from rules on inability, which may be temporary; (2) specify who should determine presidential inability so that the President’s powers and duties could be transferred promptly to the Vice President; (3) clarify that an incapacitated President may “resume the functions of his office upon recovery” if he had self-certified his inability; (4) provide that the Vice President serves only as Acting President during periods of presidential inability; and (5) provide rules for vice presidential succession.9 The Senate approved the joint resolution unanimously on September 29, 1964.10 However, the 88th Congress adjourned sine die—without a date to reconvene—without the House taking action on the proposed amendment.

1: E.g., S. Rep. No. 88-1382, at 9 (1964).
2: Id. Hubert Humphrey’s election as vice president filled this vacancy in January 1965.
3: See id. Enacted under the authority of Article II’s Presidential Succession Clause, the Presidential Succession Act of 1947 addresses the line of presidential succession in the event of dual vacancies or inabilities in the presidency and vice presidency. 3 U.S.C. § 19(a)(1).
4: Ryan T. Harding, Preventing Presidential Disability Within the Existing Framework of the Twenty-Fifth Amendment, 40 U. Ark. Little Rock L. Rev. 1, 9 (2017).
5: John D. Feerick, The Twenty-Fifth Amendment—In the Words of Birch Bayh, Its Principal Author, 89 Fordham L. Rev. 31, 31 (2020).
6: 109 Cong. Rec. 24420 (1963) (statement of Sen. Bayh) ( “The accelerated pace of international affairs, plus the overwhelming problems of modern military security, make it almost imperative that we change our system to provide for not only a President but a Vice President at all times.” ). In January 1963, Senators Estes Kefauver and Kenneth Keating, chair and ranking minority member of the Senate Judiciary Committee’s Subcommittee on Constitutional Amendments, had sponsored a proposed constitutional amendment that would have incorporated the Tyler precedent on presidential succession into the Constitution, distinguished presidential disability from vacancy, and authorized Congress to provide by law a method for ascertaining the commencement and termination of presidential inability. S.J. Res. 35, 88th Congress, 1st Sess. (1963). The bill was not considered on the Senate floor.
7: 110 Cong. Rec. 22990 (statement of Sen. Bayh). Senator Bayh’s resolution drew in part upon earlier proposals and protocols developed by the Eisenhower Administration on the issue of presidential inability. See Herbert Brownell Jr., Presidential Disability: The Need for a Constitutional Amendment, 68 Yale L.J. 189, 196–97, 201–03 (1958).
8: S. Rep. No. 88-1382, at 1 (1964).
9: Id. at 4, 6, 11, 13.
10: 110 Cong. Rec. 23061 (1964) (recording a roll call vote of 65 to 0 in favor of the joint resolution one day after the Senate had unanimously approved the resolution by voice vote). See also id. at 23002 (voice vote).