The Brattleboro daily reformer. (Brattleboro, Vt.) 1913-1955, 1922-03-08
BY DAVID LAWRENCE

NACAAiHlcN .AtuAAAiAslE dkAhH. 1
BY DAVID LAWRENCE
Especial Despatch to The Reformer.)
Copyright 1922.
WASHINGTON. March s. - Some
times the American constitution isl
changed by amendment. and sometimes
its meaning is developed by legal inter-
probation.
President Harding and the senate are
in the midst of a controversy which may
result in an unwritten amendment to the
constitution and may vitality affect the
constitutional system in the future.
4 subcommittee of United States sem
ators has just ruled that President Hard
ing's appointees to the allied funding
commission, namely Senator Smoot of
Utah and Representative Burton Of Ohio
are ineligible to hold Office on that com
mission because of a constitutional pro
vision which reads as follows:
mo senator or representative, shall.
during the time for which he was elected,
be appointed to any civil Office under the
authority of the United States, which
shall lave been created orthe emoluments
whereof shall have been increased dur
ing such time
The subcommittee holds that the APP
pOintment of Senator Smoot and ltcpre-
| sentative Burton is to a civil Office"
which has been created during the Germ
for which they were elected.
Legal opinions galore are beng quoted
on both sides of the question and when
Attorney General DaugheTty went to the
cabinet meeting, he gave what he termed
q "cHrbstone opinion to the effect
that he believed the office was one which
hardly could come within the meaning
of the constitution since the action OF
the funding commission would after all
be the action of the President. He adj
United, however, the fact that both Mr..
HI SmOot and MIR. Burton were named Tor
Offices. which by act of congress required
the confirmation by the senate, did give
the impression OF a civil office though
it probably differed from what the
trainers OF the constitution had in mind.
Senator Brandegee of Connecticut. Re
spublican, Joined with Senator Walsh OF
Montana, Democrat. and Senator Over
man of North Carolina, Democrat, IN
the subcommittee report which held
MeSsrs. Smoot and Burton ineligible,
while Senator Cummings of Iowa and
Sterling of South Dakota, both Renuhli-
cans took the other view.
This is not Il new question. 1t came
Iup during Mckinley s administration
when Senator Hoar, Republican, argued
that Mr.. Mckinley was wrong IN APP
pointing membeFs OF the senate to negor
tate a treaty. 1t was believed at the
time that the office vas a special one
land that it would not become Il prece-
dent. But instead the Mckinley action
has been taken as justification Tor an
appointment of Senators Lodge and I'm
derwood to the executive commission
which negotiated the treaties az the arms
conference. There was a dispute at the
time as to whether Mr.. Harding was
violating the constitution but 1t was
insisted that since the members of the
III oaY, n, ieginp Iihnf = raupirn FpnHrmqf ION
by senate and didn't receive any pay
they hardly could be called ambassadors.
n They occupied the status of senatorial
advisors by virtue of the fact that the
advice of the senat was considered by
Mr.. Harding as a treaty making tunc-
tion.
Now. however. the desire of Mr.. Hard
ing still further to please congress by
giving the legislative branch OF the gov
eminent any voice in the negotiations
whereby payments on the allied war debt
interest and principal are to be ar
ranged has developed an unforeseen con-
lict of opinion. 1t was devoid of party
or personal feeling, however, and re-
wolves entirely upon the question OF
whether the American constitutional
system viii permit close cooperation
between the legislative and executive
or whether an absolute separation was
XII intended by the father of the republic.
1t is not unrelated either TO the discus
iii SION when mas Deeu ueNelOplliB ever
since the war that the executive should
be more closely responsible to the cleo
torate during his term. The objection
to the appointment of senators and re-
representatives. on commission or which
are directly managed by the president
of the United States is that congress
surrenders its independence to the chief
executive without being able to secure
the recall OF the president as a foreign
parliamentary body would check its
prime minister or premier. The agita-
ton for the giving of seals in congress
to cabinet ministers has hinged upon the
same thing for unless the executive and
the cabinet are responsible to the cleo
torate at more frequent intervals than
VI every -four years. the tendency of most
constitutional authorities to insist upon
1.-THE absolute independence of congress
I from the influence direct or indirect of
the president whether he is the real or
nominal party leader.
Should the subcommittee s report be
ignored by the senate itself, there is a
strong probability that members of the
senate and house will serve more often
hereafter on executive commissions and.
particularly in the negotiation of treat
les. Incidentally state department au-
thorities under the last administration
in response to an inquiry by president
Wilson as to whether he should take
any members of the senate to the \ or
sailles peace conference ruled that mas
much as senators were to pass in ludg-
mpnt upon the treaties made it would be
4 violation of the condition To have
tbem under the influence or authority
OF the president at any time.