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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; ....10 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. do 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. 10 U. S. Const. Art. II, $ 3.
ong. Rec. 2215 (1886).
tion of the Government and every part of it, not only its legislative part about which the l’resident 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 1 "right to know everything that is in the Executive Departments of the Government."
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. 3 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 years 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 flouse 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 lbid. 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 L'nion” 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. 28 17 Cong. Rec. 2216 (1886).
conduct of all its agents, proceeded to call for this information, and got it as a matter of course. It was not exercising a jurisdiction to confirm or reject Russell for anything, or to ratify or reject a treaty. It was getting information in a general way for its general purposes in the exercise of its general duty.
(Emphasis supplied.) 28 The Senate Committee on the Judiciary was instructed on March 13, 1822, to procure from the Secretary of State a letter written by a Mr. Jennings of the State of Indiana, recommending one Dewey for appointment as United States Attorney for Indiana. The Senator indicated that the resolution instructing the committee to obtain this paper implied that the power to secure the same extended to a private paper, so far as such a paper can be a private paper, and described the document in question as being a letter that the Senate had reason to believe was in the files of our Department of State. The paper was turned over to the Committee without objection."
The Secretary of War was directed by the Senate on October 30, 1828, to furnish copies of the reports of the Inspector-General of the Army of the United States, confidential as well as others, including the details of all statements and instructions. This order, the Senator informs us, was adopted in executive session and was complied with by the Secretary of War as a matter of course.
The Senator similarly cited numerous other occasions on which the executive had without argument surrendered information to Congress. But of all the cases amassed by the Senator from Vermont in this discussion, his last probably had the most telling effect. In March and April 1879 the Senate Judiciary Committee, controlled by a Democratic majority, had sought and received from the Attorney-General, the same type of information which Cleveland and his Attorney-General, Mr. Garland, were refusing to submit to the Republican-controlled Senate Judiciary Committee in 1886. The information requested in 1879 concerned nominations for certain vacancies and also dealt with the propriety of the removal of one Michael Schaeffer, Chief Justice of the Supreme Court of the Territory of Utah and the appointment of David Corbin to that office. To cap the climax, Senator Edmunds gleefully noted that in 1879 some of the most famous Democrats of the era were on that
28 17 Cong. Rec. 2217 (1886).
81 17 Cong. Rec. 2219-2220 (1886); Josephson, The Politicos (Harcourt Brace & Co., 1938) p. 100 et seq.
judiciary committee, three of whom were presently members of Cleveland's Cabinet, and one of whom was the present Attorney-General, Mr. Garland. The Democratic Senatorial Committee had asked for information and the Republican Executive had acceded to the request. Edmunds concluded his recitation of this incident with the following biting peroration:
Alas, for the Democracy of those days! Think sir, of the infinite idiocy, unpatriotism, usurpation of that number of five Senators of the United States of the Democratic Party assailing a Republican Attorney-General and a Republican President with the insulting and impertinent inquiry as to papers and information touching a man, to be removed whose successor was nominated to accomplish his removal. And yet those men were in their day and in those times among the headlights of the Democratic locomotives. There was Thurman-his light is put out-the greatest Democrat in the United States (applause in the galleries) and the best one, and the noblest one, and the bravest one, for he had the courage not long ago in your State, sir, to denounce the Democratic frauds on the ballot. There was Thurman, and there was Joe McDonald, a name familiar in the West as well as in the East as the embodiment of upright Democratic pluck and constitutional law; and there was Garland, whom we all knew here, the leader on the Democratic side of the Senate, and running over with constitutional and statute and reported law, knowing his rights as a Sena tor and as a member of the committee and knowing his duties; and Lamar, and then all the rest of us on this side, joining in what the present President of the United States calls an impertinent invasion of his rights in asking for information from him. Sir, if I was going to be rhetorical, I should say just here:
O shame! Where is thy blush? . . .32 It is submitted that Mr. Edmunds presented well the answer of his era to the "precedent" argument of the executive branch. His answer is that there is no precedent for the statement that the executive branch may withhold information from the Congress and their committees of investigation, when the former branch feels that the submission of such information is for the public interest. He contends that, because of its responsibility to present to Congress information on the state of the union and otherwise, the executive branch must comply with requests for information and documents from the legislative branch and its committees. He supports this proposition by examples of the continued adherence of the executive branch to this norm and he shows that refusals are usually based solely on political and party arguments.
The Republican House majority in the Eightieth Congress carried this argument one step further. They passed a resolution requiring the
82 17 Cong. Rec. 2221 (1886).