"(g) As used in this Act, the term 'lands and other properties' includes public lands and other public property, and the term 'public lands and other public property' means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired in exchange for lands or properties so ceded."

PRESIDENTIAL INABILITY

Article II, section 1, clause 6 of the Constitution authorizes the Vice President to act as President in the event of the President's inability to discharge the powers and duties of his office, and to act in that capacity "until the disability be removed."

The same Article is interpreted as vesting authority in the Vice President to decide whether Presidential inability exists, if the President is unable to do so, and authorizes the President to determine when his inability has ended.

The memorandum of March 3, 1958, between former President Dwight D. Eisenhower and former Vice President Richard M. Nixon, representing their understanding of the constitutional role of the Vice President as acting President in the event of Presidential inability, is consistent with the correct interpretation of Article II, section 1, clause 6 of the Constitution.

Attorneys General Herbert Brownell, Jr. and William P. Rogers have expressed the same views on the identical questions.

THE PRESIDENT.

AUGUST 2, 1961.

MY DEAR MR. PRESIDENT: I have the honor to respond to your request for my opinion upon the construction to be given to the Presidential inability clause of the Constitution. Article II, section 1, clause 6 reads as follows:

"In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

You request my opinion on these questions: first, whether when Presidential inability occurs, the Vice President under

Article II, section 1, clause 6 succeeds to the "Powers and Duties" of the Presidency or whether he succeeds to the “Office," i.e., becomes President and remains in the office even if the inability should cease; second, who determines whether the inability exists and who determines whether the inability has ended; and third, whether the memorandum of March 3, 1958, between former President Eisenhower and former Vice President Nixon, representing their understanding of the constitutional role of the Vice President as acting President, is a desirable precedent for this Administration to follow.

As shall be shown hereafter, the great majority of scholars and my two immediate predecessors have expressed the opinion that upon a determination of Presidential inability the Vice President succeeds temporarily to the powers and duties of that office, and does not permanently become President; and it is also their opinion that the Vice President may determine whether the inability exists. My immediate predecessors were also of the opinion that the President may determine when his inability has ended, and thereupon resume the discharge of the Presidential functions. For reasons to be discussed hereafter, I concur in their opinions. I also conclude that the understanding of March 3, 1958, is in keeping with the Constitution, and that the precedent set by it could appropriately be followed by this Administration.

I

In case of Presidential inability does the office itself or do merely the powers and duties of the office devolve on the Vice President?

For many years constitutional scholars have debated whether Article II, section 1, clause 6 was intended to transform a Vice President into a President upon the occurrence of the latter's inability. It will be noted that this clause contemplates four situations in which the Vice President may be called upon to act as President. In three situations, permanent exclusion of the President from the remainder of his term is obvious since these involved removal from office, death or resignation. The difference of opinion arises respecting the fourth contingency, viz: "Inability to discharge

the Powers and Duties of the said Office." Did the authors of the Constitution intend to exclude the President thereafter, despite his complete recovery, from resuming the discharge of his powers and duties? It may be noted that after this fourth contingency follow the words "the Same shall devolve on the Vice, President." Do the words "the Same" refer to the office of President, or do they refer to "the Powers and Duties"?

It is my opinion that under Article II, section 1, clause 6 of the Constitution the Vice President merely discharges the powers and duties of the Presidency during the President's inability and this conclusion, as shall be shown hereafter, finds support in the following:

1. The records and history of the Constitutional Convention.

2. Debates in the Convention and ratifying conventions. 3. Consideration of other provisions in the Constitution. 4. The example and experience of the States in providing for succession.

5. The dictates of reason and established rules of statutory construction.

6. The great weight of constitutional authority. These considerations will be discussed in order.

1. The records and history of the Constitutional Convention.

Without dispute, Article II, section 1, clause 6 nowhere expressly provides that the Vice President shall under any circumstances become President. Had the framers of the Constitution intended the Vice President in certain contingencies to become President, they would not have been at a loss for words. Reference to the records of the Constitutional Convention discloses that the framers of the Constitution never intended the Vice President in event of Presidential inability to be anything but an acting President while the inability continued.

Of the various written plans submitted for consideration at the Convention, only Charles Pinckney's draft offered May 29, 1787, specifically referred to Presidential disability. Article VIII of this draft provided in part that in case of the President's removal through impeachment, death, resignation