Evening star. [volume] (Washington, D.C.) 1854-1972, 1931-01-13
Is the Senate Rule a Law9

is the Senate Rule Law!
Inasmuch as Senator Walsh of Mon
tana, whose motion resulted in the
reconsideration of the combinations of
three members of the Federal Power
Commission and the Presidents refusal
to rsturn the nominations, has himself
acknowledged the futility of the pro-
ceeding, the question of the Senate's
prerogative in the matter becomes, in
this instance at least, academic rather
than practical. 1t serves, however, to
call attention to the matter of the
Senates rule governing combinations,
that rule upon which was based the
action of last Friday and which the
President ignored in his refusal to re-
turn the nominations.
There is something more in the case
than the mere text of the rule. That
text is explicit enough to maet the
requirements of those who hold that
the nominations of the commissioners
have not been actually confirmed. 1t
provides that combinations may be re-
considered and, by direct implication,
nullified, upon motion made within two
executive sessions of the Senate. The
vote of Friday in reconsideration was
in strict accord with this provision. But
the President had been formally noti-
fed of the action of the Senate of
December 90 Was that not a waiver
of the right of reconsideration? The
majority who voted on Friday to recon-
slider evidently believes that it was not
a waiver. Then, it may be asked, why
was the President notified? There is
some question as to whether the Senate
actually voted that this notice be sent
to the President. The Congressional
Record states the formal resolution of
confirmation in terms of distinct order
that the President be notified. Some
Senators aver that this was gratuitous
assumption by the clerks of the Senate
who prepared the resolution, or the text
of the Record. However, the resolution
stands in the Record and presumably
in the Journal Of the Senate, to show
that the Senate did in fact order that
the President be notified of the con-
firmations
It is disclosed that section of the
rule governing combinations by the
Senate provides that nominations con-
firmed or rejected by the Senate shall
not be returned by the secretary to
the President until the expiration of
the time limited for. making a motion
to reconsider the same, or while
motion to reconsider is pending, unless
otherwise ordered by the Senate"
It is doubtful whether many members
of the Senate knew, until this case
arose, that this rule prevailed. 1t is
questionable whether it has been fol-
lowed at all in the course of years.
Countless presidential appointments
have followed Immediately upon con-
firmations and appointees have taken
Office before the expiration of the two
day period provided for possible re-
consideration.
Now the question Of real moment
arises at this point. Is the Presi- 1T
governed by the Senate rules? If ne
is notified, by inadvertence or negligent
inattention to the rule on the part of
the Senate, that his nominee has been
confirmed, must he wait for the lapse
of time prescribed by the rule, before
issuing the commission to his APP
pointee? One of the Senators the other
day in the debate so held. He said:
I submit that the President of the
United States and every appointee
claiming title through continuation OF
this booy is charged with notice OF the
rules under which the Senate operates.
The President of the United States, as
one of the other coordinate branches OF
this Government, when he deals with
the Senate, deals with it with absolute
notice-whether in fact or not, he deals
with it with constructive notice-of
the Senate's limitations, Of its powers,
and of its rules.
This raises a question that may at
any time become of vital importance.
Must the President, or any subordinate
member of the Government, acquaint
himself with the SenateS rules as the
all-governlng law? Are the Senate's
rules-written presumably for the guild
| ance and goyernance of that body alone
of equivalent force and significance
with the provisions Of the Constitu-
ton itself?
There will be general demur 70 the
contention that the executive officers
of the Government must read their
commissions in terms of the rules of
/ the Senate, and be themselves judges
Of the validity of their titles 10 Office
in terms of possible violations or waivers
of those rules by the Senate itself. II
the Senate errs in its procedure 1t has
only itself TO blame.