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furnishes the material for the second part of the response to the "precedent" argument of the executive branch.

During President Cleveland's first term, in March 1886, the Senate censured the Attorney-General, Mr. Garland, a former Senator from Arkansas, for his failure to furnish the Senate Judiciary Committee with information and papers relating to the suspension of George N. Duskin, a Republican, as United States Attorney in an Alabama District. The Truman Administration, in its recent struggle with the Congress, cited the debates in 1886 on this subject as a victory for their position, since Cleveland's Department of Justice was not forced in any way to submit the requested information. It is to be noted, however, that the action of the Attorney-General was condemned by the Senate in four separate resolutions, the most important of which probably was the second, in which the Senate stated expressly:

its condemnation of the refusal of the Attorney-General, under whatever influence, to send to the Senate copies of papers called for by its resolution of the 25th of January, and set forth in the report of the Committee on the Judiciary, as in violation of his official duty and subversive of the fundamental principles of the Government and of a good administration thereof.13

An attempt by Senator Morgan of Alabama, after the passage of the four resolutions, to amend the same by a tricky procedural move, failed. The attempted amendment, submitted in the form of a resolution, read as follows:

Resolved, That nothing in these resolutions contained is to be construed as declaring that the conduct of the Attorney-General renders him liable to impeachment, and the Senate disclaims the right or power to punish him by imprisonment or otherwise than by impeachment for the offense charged against him in the second resolution, which the Senate has just adopted. (Emphasis supplied.)11

This resolution was defeated by a sly maneuver of the Majority Leader, Senator Hoar of Massachusetts. When Hoar's point of order that the amendment was not timely, failed, and the President pro tem ruled that Senator Morgan clearly had the right to offer the amendment, Hoar then asked that this be allowed by unanimous consent, rather than by order, for he felt that "it would embarrass the Senate... very much

nated for appointment under the Atomic Energy Act of 1946, reprinted in 94 Cong. Rec. 6196 (1948).

18 17 Cong. Rec. 2211 (1886).

14 Id. at 2814.

to establish such a precedent." Then, hastily, Senator Hoar moved to lay the resolution on the table. His motion carried by a vote of thirtythree yeas to twenty-six nays with sixteen members absent. The effect of this motion was to reject the resolution to amend.16 By such a rejec tion, the majority in the Senate made it clear that they were in no way excusing the Attorney-General from possible impeachment and that they were not renouncing what they considered to be their legal right to punish him by imprisonment, or otherwise than by impeachment for his refusal to submit to the committee the desired information."

This hardly seems, therefore, to be a case which could or should be cited by the executive in support of that branch's "precedent" argument. In this situation, the Senate, in effect, said: We censure you, Mr. Gar18 The following colloquy, contained in 17 Cong. Rec. 2814 (1886), is pertinent:

"Mr HOAR. I desire to raise a question of order. All the resolutions have been passed, the whole four. There is no mode of amending the series now. It is simply like dividing the vote on the passage of a bill into four parts, and when they are all passed upon you can not move to amend the bill after it has been passed.

"The PRESIDENT pro tempore. The Chair is of opinion that in view of the notice given by the Senator from Alabama that he would offer an amendment, and the amendment having been sent to the desk, the question being raised as to whether he could or could not offer it, the resolution should be received.

"Mr. HOAR. To what is it an amendment? An amendment implies a pending question to be amended. The question is, Shall the bill pass? The question, shall it pass with a certain amendment, must be acted on before it is passed. But when a series of resolutions which are four distinct propositions are before the Senate and there is a demand that the question be divided, according to the usual parliamentary procedure the question is put on the passage of each separately, and when each separately has passed the matter is as much beyond the reach of amendment as a bill after it has passed. Giving a notice beforehand does not change the parliamentary law. The Senator should have made his motion as an amendment to the last resolution.

"The PRESIDENT pro tempore. In ordinary cases clearly the Senator from Massachusetts is right; but the Senator from Alabama sent an amendment that was then in order to the Chair, and the Chair was about to put the question upon it as an amendment when the Senator from Alabama gave notice to the Senate that he would offer it as an additional resolution. The Chair thinks under the circumstances that it is clearly his right to offer the amendment."

16 The following definition of a "motion to lay on the table" is to be found in Cannon, Procedure in the House of Representatives (U. S. Govt. Printing Office, 1948) p. 415 and is equally applicable in regard to the Senate:

"The motion to lay on the table is used for final and summary disposition without debate, and to protect the House against business which it does not wish to consider, and while it is not a technical rejection, it is in effect an adverse disposition equivalent to rejection."

17 17 Cong. Rec. 2814 (1886).

land, because you have not given us the information we requested; we do not force you to give us the information, but this does not mean that we do not think we have the power to do so. Nor, by these resolutions, are we waiving such power.

These debates of 1886, consuming some seventeen days, present additional information in support of the legislative branch's position and in rebuttal of the argument, based on precedent, advanced by the executive branch.

The novel arguments, supporting the position of the legislative branch, were mainly advanced by Senator Edmunds of Vermont, a member of the Republican Party and the Chairman of the Senate Judiciary Committee during the Forty-Ninth Congress, in the debate on the general subject of the relations between the Senate and Executive Departments.18 The Senator's first argument was based on Article II, Section 3 of the Constitution of the United States. Article II, of course, deals with the powers of the Executive and Section 3 specifically provides that the Chief Executive:

... shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; . . . .19

The Senator gave a broad definition to the term, "state of the union", and argued that the Constitution commands the President in affirmative terms to give such information to the two houses of Congress and that when the Constitution so refers to "state of the union", it has reference to the

universal power of knowledge and information of the two Houses of Congress in respect to every operation of the Government of the United States and every one of its officers, foreign and domestic.

The Senator continued in the following words:

That is the "state of the Union." The "state of the Union" is made up of every drop in the bucket of the execution of every law and the performance of the duties of every office under the law, either within its borders or out of it. There is no one mass, no one cue, or quantity, or subject that makes up "the state of the Union", as every gentleman-and there are a good many here who have been members of the House of Representatives, when they go into the Committee of the Whole on the State of the Union-knows. It is the condi

18 Id. at 2211.

19 U. S. Const., Art. II, § 3. 20 17 Cong. Rec. 2215 (1886).

tion of the Government and every part of it, not only its legislative part about which the President of the United States could communicate no information without impertinence, for the Constitution has declared that the two Houses are to regulate themselves, but he is to give to Congress, as a positive command, from time to time, information on the state of the Union; and that is because they are entitled to have it, and they are entitled to have it every time they call for it, and he violates a positive command of the Constitution when on a constitutional call and in a regular way by either House he omits to do it.21

For this reason, Edmunds continued, from our earliest Congresses, the Chief Executive has been given much leeway by the legislative branch in determining whether the public interest would be preserved or injured by forwarding certain information to the Congress or to a committee of the Congress. This was particularly true where undue and premature disclosures of confidential fact would be involved in forwarding the information to a committee, even though the committee was entitled to have such information. Following the line of reasoning above outlined, however, this Republican leader reached the conclusion that either House of Congress had a "right to know everything that is in the Executive Departments of the Government.

9922

From his research, the Senator stated that this was the first instance. in forty years in which either House had failed "on its call to get information that it has asked for from the public Departments of the Government. 23 In all the history of our country, up to his era, declared the Senator, there had been few instances in which there was evinced the slightest reluctance on the part of either the executive or the departments to respond to calls of either House or of their committees for papers in the possession of the former.

Sometimes in a case of political fever, as it might be called, they have evinced, wide year apart, a reluctance and a hesitation on the part of the executive or of the heads of Departments to do this thing; and then, that storm being over, the orderly administration of constitutional government went on as before, and either House of Congress on its request or demand, as the case might be, and the committees of either House of Congress acting without a direct and positive authority to send for persons and papers, have always obtained from the Departments on their mere request everything that either House or its committees thought necessary for the proper discharge of their duties. (Emphasis supplied.)24

21 Ibid.

22 Ibid.

23 Ibid.

24 Ibid.

The Senator from Vermont continued his attack on the position of the minority of the committee, who had cited a few incidents in which the executive department refused to furnish papers or information to one of the Houses of Congress. He pointed to the numerous occasions on which Presidents actually furnished such information to congressional committees even on subjects which were, indeed, more confidential than the subject then under consideration, and some of which were as confidential as the information which Washington refused to furnish concerning Jay's treaty.25 His argument, supported by these numerous citations, is that the Presidents realize their responsibility to submit information to the Congress, whether based on the "state of the Union" requirement or otherwise; and that when Presidents refuse to furnish such information, they do so not on constitutional but on purely political grounds.

The willingness displayed by the executive branch in furnishing information to the various committees and to the respective Houses of Congress, in the period prior to Cleveland's first administration, is best observed by a perusal of some of the examples cited by Senator Edmunds in his argument on the opening day of this debate in the Senate on March 8, 1886. The wide range of subjects involved in the submissions of information through the years is also worthy of notice.28

In executive session on March 3, 1806, the President was requested to report all documents and papers relative to the interference of the American Minister at Paris in the case of the ship New Jersey. The President furnished this information although there was no question then pending in the Senate regarding either the ship New Jersey or the American Minister at Paris.27

The President was requested by the Senate on June 2, 1813, to inform the Senate, and the Senate was so informed by the Chief Executive, whether any communications had been received from one Russell, an agent of the United States, admitting or denying the declaration of the Duke of Bassano, as to the repeal of the Berlin and Milan decrees. With respect to this Senator Edmunds said:

It has been stated that an agent of the United States had got (sic) that information and had given it away in an improper manner; but the detail it is quite unnecessary now to go into; . . . in order, I repeat, to keep itself acquainted with the state of the Union and the executive affairs of this Government and the

25 Some of the occasions cited by Senator Edmunds are listed, supra note 6. 26 17 Cong. Rec. 2216 (1886).

27 Ibid.

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