The Daily Alaska empire., 1931-02-07
TESTING A SENATE RULE.

The Senate is about to seek a court ruling on of it's ancient rules of procedure-the one under which it maintains it had the authority to request President Hoover to resubmt to it for further con- sideration the of three of the Commissioners on the Federal Water Power Board. By resolution it has directed the United States District Attorney of the District of Columbia to determine the right of George Otis Smith to hold a place on the Com mission after it had reconsdered it's original con- firmation and reversed it's first action by refusing to confirm.
 Opinion is sharply divided upon the subject. Senator Walsh Montana Democrat and high author ty constitutional questions of law, maintains the Senate was within it's powers in it's action on the Power Commission The Senate has a rule which gives it the right reconsider it's action on Presi- dential nominations within two legislative days after it has acted The Senate notified the President on December 20 it had approved the nomination of MT. Smith It then adjourned for the holidays. When it reconvened it immediately started a movement for reconsideration.
 The President referred the question to the De- partment of Justice and Attorney General William Mitchell rendered opinion saying:
 The position that the Senate did consent
 that these appointments be immediately
 made, subject to revocation on reconsd-
 eration by the Senate is wholly untenable.
 That would allow the Senate to encroach
 upon executive functions by removing an
 officer within a limited time after his ap-
 pontment because of dissatisfaction with his
 official acts Any rule that provided for
 such course would be void. The consent
 required by the Constitution is a consent
 absolute and irrevocable when acted on by
 the Executive. With such condition at
 tached it would be case, not of a void
 condition but of an invalid appointment
 Either these appointments valid because
 made with the unqualified consent of the
 Senate or they are void There is no middle
 ground
 Had the Senate not notified the President of it's confirmative action but had held the matter over until it had reconvened after the holidays, the question of reconsideration probably would not be debatable But this was not the procedure It and it seems reasonable to conclude, did the Attorney General, that it's notification of consent was deliberate expression to the President of the Senates unqualified consent to the immediate appointment, and that it amounts to decision by the Senate, not under suspension of the rules but in accordance with them, and to place reconsideration beyond its power if the President should act and make the appointment before a request of the Senate for a return of the papers reaches him.
 It is admitted that the Senate desired to reverse its favorable action, not because of some new light on the appointees which in existence before it acted but not available but the result of official action taken by the Commission after the Senate had consented to the appointments This of course puts entirely differnt light upon its proposed procedure and its subsequent proceedings smack of removal from office more than failure to confirm.