Senate Checkmated

Old as the Constitution is the struggle between the President and the Senate for power. Last week President Hoover and the Senate became deadlocked in another major battle which made their past controversies over tariff flexibility, export debenture and drought relief look small. By snatching at the President's prime executive authority--his control of appointees--the Senate provoked a controversy which only the Supreme Court can authoritatively settle. By fighting back at the Senate's aggression President Hoover maintained the ancient tradition of his great office.

The driving force for this new battle in an old war was hydroelectric power. Senate Democrats and that multicolored collection of individuals known as "Insurgent Republicans'' have assiduously been trying to make regulation of electric power into a great political issue for 1932.

Last month President Hoover sent to the Senate for confirmation the nominations of five new Federal Power Commissioners-- George Otis Smith. Claude Draper, Marcel Garsaud, Frank McNinch and Ralph B. Williamson. After the usual fussing, the Senate confirmed all five a day or two before it adjourned for the Christmas holiday. Organizing immediately as a quorum, Commissioners Smith, Draper and Garsaud promptly dismissed several old employes of the Commission. Two of them were Chief Accountant William V. King and Solicitor Charles A. Russell. Because Messrs. King & Russell had cut quite a large public figure bucking private power companies when haled before the old Commission, this pair had come to be known as enemies of the "power trust" and defenders of the "public interest." Democratic and Insurgent Republican Senators immediately raised a great ruckus, charged that the Power Commission had already sold out to the "power trust," hinted that President Hoover himself was instrumental in these dismissals.

But how could these Senators get their hands back on these three Power Commissioners and punish them for their conduct? Their confirmations had gone to the President. They had taken oaths of office and commenced to function. They seemed quite outside the Senate's jurisdiction.

Then up spoke Senator Thomas James Walsh of Montana, a "power trust" foe, an old, wily and astute lawyer. Under its rules the Senate may reconsider a nomination provided the motion is made within two executive session days of its confirmation. Though 14 actual days had intervened since the Power Commissioners were confirmed. Senator Walsh set forth that whereas the Senate had been in recess over the holiday, therefore the two-day rule was still technically applicable. The minute Congress reassembled last week Senator Walsh offered his resolution "respectfully requesting" the President to return to the Senate the documents certifying the confirmation of Power Commissioners Smith, Draper, Garsaud. In other words, before the Senate could actually reconsider, it had to get back from the White House something to reconsider.

Debate on the issue was slow, technical, dragging on for four days. Adroitly the "power trust" foes wangled the issue around so that it would appear that a vote against the Thomas Walsh resolution was a vote for the "power trust." Administration Senators said little. They let round-faced Lame Duck Senator Goff of West Virginia lead the Hoover defense. When the question finally came to a vote, the Thomas Walsh resolution was adopted (44-10-37) by an alliance of Democrats with the Insurgent crew including Idaho's Borah, California's Johnson, New Mexico's Cutting.

The purposes of the Senate fight on the President were perfectly obvious. The Senate was reaching for the recall. The Supreme Court had ruled that a President might remove an appointee without the "advice and consent" of the Senate. The Senate wanted a similar power of removal over appointees. Politically the fight was designed to put President Hoover in a hole. If he returned the Power Commissioners nominations, he would be bowing to the Senate's dictation. If he did not, it was argued by his enemies, he would be bowing to the dictation of the "power trust."

President Hoover quickly summoned Attorney General Mitchell and together they composed a retort to the Senate and an explanation to the Public. The militant wording of these documents, it was noticed, was so much above the President's average literary style that Attorney General Mitchell was suspected of having contributed much pen-and-ink.

To the Senate, the President wrote: "I am advised that these appointments were constitutionally made . . . formally communicated to me, and that the return of the documents by me and reconsideration by the Senate would be ineffective to disturb the appointees in their offices.

"I cannot admit the power in the Senate to encroach upon the Executive functions by removal of a duly appointed executive officer under the guise of reconsideration of his nomination.

"I regret that I must refuse to accede to the request."

To the Public he explained:

". . . The objective of the Senate constitutes an attempt to dictate to an administrative agency upon the appointment of subordinates and an attempted invasion of the authority of the Executive. These, as President, I am bound to resist.

"I cannot, however, allow a false issue to be placed before the country. There is no issue for or against power companies.

"The resolutions of the Senate may have the attractive political merit of giving rise to a legend that those who voted for it are 'enemies of the power interests' and, inferentially, those who voted against it are 'friends of the power interests,' and it may contain a hope of symbolizing me as the defender of power interests if I refuse to sacrifice three outstanding public servants. . . .

"If the appointments of these commissioners are withdrawn, it is obvious that their successors must accept the Senate's views of these subordinates.

"The resolution raises the question of the independence of the Executive arm of the Government in respect of the appointment and removal of Executive officials.

"It reaches to the very fundamentals of the Executive, whose power comes from the people alone.

"If the Power Commission shall fail to employ honest and capable officials, it is within my power to remove such officials as well as the members of the commission. I have not and shall not hesitate to exert that authority.

"The House of Representatives has the right to impeach any public official, and if the Power Commission shall be derelict in the performance of its duties, the orderly and constitutional manner of procedure by the legislative branch would be by impeachment and not through an attempt by the Senate to remove them under the guise of reconsidering their nominations.

"I regret that the Government should be absorbed upon such questions as the action of the Power Commission in employment or non-employment of two subordinate officials at a time when the condition of the country requires every constructive energy.

"The effect of this Hoover broadside which so accurately depicted the issue took most of the wind out of the Senate's sails. There was of course much noisy denunciation of the President for his failure to obey the Senate but even Senator Walsh had to admit that the President had the Senate checkmated. Any further action by the Senate, he argued, would be only a "futile gesture" so long as President Hoover supported his appointees. As an indirect attack upon the three Power Commissioners a move of unlikely success was started to delete their salaries from forthcoming appropriation bills.

How and whether the case would reach the Supreme Court remained an open question last week.

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