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The President's News Conference

January 23, 1931

BENEDICT CROWELL

THE PRESIDENT. I have today forwarded to the Senate the nomination of Mr. Benedict Crowell, of Cleveland, as a brigadier general of the Reserve Corps of the Army. As you know, Mr. Crowell has long been a member of the Reserve Corps, and he did very distinguished service during the war as Assistant Secretary of War and subsequently as the Director of Munitions. And this promotion in itself is not so material as it affords an opportunity to indicate the feeling of his Army associates and his friends in the War Department and my own feeling toward what we have always considered was an inadvertent but very grave injustice.

FEDERAL POWER COMMISSIONERS

I have some inquiries here for the Attorney General's opinion on the three Power Commissioners. The Attorney General will release that opinion for you this afternoon if you want it.

Otherwise, I have nothing on this occasion.

Note: President Hoover's one hundred and sixty-eighth news conference was held in the White House at 4 p.m. on Friday, January 23, 1931.

On the same day, the White House issued a text of the President's statement on the nomination of Benedict Crowell as brigadier general of the Army Reserve Corps (see Item 32).

In his remarks the President referred to the Attorney General's opinion on the Federal Power Commission appointments; that opinion, dated January 10, 1931, follows:
Sir:
You have asked my opinion on the legal aspects of the resolutions of the Senate, passed January 9, 1931, requesting you to return to the Senate the certified copies of the resolutions of the Senate expressing its consent to the appointment of George Otis Smith, Marcel Garsaud, and Claude L. Draper as members of the Federal Power Commission.

These men were nominated for these positions, and their nominations were considered by the Senate, which passed resolutions consenting to their appointment. Formal notification of this action was transmitted to you by the Secretary of the Senate, and in reliance thereon you made the appointments. The question is now presented whether, if you comply with the Senate's request and the Senate goes through the form of withdrawing its consent to the appointments, such action would have any legal effect or operate to remove or oust the appointees.

The nomination of Mr. Draper was confirmed on December 19, 1930, by the passage of a resolution in the following form:"Resolved, That the Senate advise and consent to the appointment of the following-named persons to the offices named agreeable to their respective nominations: Federal Power Commission .... Claude L. Draper, of Wyoming, to be a member for the term expiring June 22, 1931."

The nominations of Mr. Smith and Mr. Garsaud were confirmed by the passage of a similar resolution on December 20, 1930. In the cases of Smith and Draper, after the votes were taken the presiding officer caused to be entered in the Record without objection a statement that--

"The Senate advises and consents to the nomination, and the President will be notified." (Cong. Rec. Dec. 19, 1930, p. 1101; Cong. Rec. Dec. 20, 1930, p. 1266.)

The Executive Journal of the Senate for December 19, 1930, in recording the passage of the resolution on confirming the nomination of Draper, contains the following:

"Ordered, that the foregoing resolution of confirmation be forwarded to the President of the United States." There is a similar entry and order in the Executive Journal of December 20, 1930, relating to the Smith appointment. In the case of Garsaud the Congressional Record does not disclose a statement by the presiding officer that the President would be notified, but the Executive Journal of the Senate for December 20, 1930, contains, in addition to the resolution consenting to the appointment of Garsaud, the following:

"Ordered, that the foregoing resolution of confirmation be forwarded to the President of the United States."

On December 20, 1930, the Senate recessed until January 5, 1931. On December 20, 1930, the Secretary of the Senate duly notified you of the confirmation of the nomination of Draper, and on December 22, 1930, the Secretary of the Senate duly notified you of the confirmations of Smith and Garsaud. In each case the notice was in the regular form, delivered by messenger, and consisted of a copy of the resolution of the Senate certified by the Secretary of the Senate. On December 22, 1930, in reliance upon these formal notifications that the Senate consented to the appointments, you appointed Smith, Garsaud, and Draper, who, on December 22, 1930, took the oath of office and entered upon the discharge of their duties. The appointments were effected by signing and delivering commissions to the appointees. On January 5, 1931, which was within two days of actual executive session of the Senate following the confirmation, motions to reconsider the nominations, accompanied by motions to request the return of the notifications, were made in the Senate and, having been passed on the 9th of January, are now before you.

The action of the Senate in such matters is governed by Rule XXXVIII of the Standing Rules of the Senate, of which paragraphs 3 and 4 are as follows:

"3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual Executive session of the Senate; but if a notification of the confirmation or rejection of a nomination shall have been sent to the President before the expiration of the time within which a motion to reconsider may be made, the motion to reconsider shall be accompanied by a motion to request the President to return such notification to the Senate. Any motion to reconsider the vote on a nomination may be laid on the table without prejudice to the nomination, and shall be a final disposition of such motion.

"4. Nominations confirmed 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 a motion to reconsider ispending, unless otherwise ordered by the Senate."
It is provided in Article II of the Constitution that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; . . ."

This clause contemplates three steps. There is, first, the nomination, which is a mere proposal. Next comes action by the Senate consenting or refusing to consent to the appointment. Finally, if the Senate consents to the appointment there follows the executive act of appointment. It has long been recognized that the nomination and the appointment are different acts, and that the appointment is not effected by the Senate's so-called confirmation of the nomination. After the Senate has consented to the appointment, the nominee is not entitled to the office until the consent is followed by the executive appointment. After a nomination is sent to the Senate and has received the approval of that body, the President may, having changed his mind, decline to make the appointment. See Marbury v. Madison, 1 Cranch 137; 12 Op. Arty. Gen. 32, 42; 12 Op. Atty. Gen. 304, 306; 3 Willoughby on The Constitution, 2d Ed. (1929), Sec. 987.

As the Executive Act of appointment follows the Senate's consent, the necessity for and the important function of a formal notification to the President, expressing the Senate's consent, become at once apparent.

Upon the foregoing facts the ultimate question in this case is whether the appointments were made with the consent of the Senate. If the appointments were made without that consent they were ineffective and invalid, but if made with the Senate's consent the function of the Senate in respect of the appointments is ended.

The formal notifications of confirmation sent you by the Secretary of the Senate were sent by authority of the Senate before the expiration of the time allowed for reconsideration by paragraph 3 of Rule XXXVIII. While these orders for notification to the President did not explicitly state that the notifications should be sent forthwith, there seems to be no substantial dispute about the fact that the orders were so intended and that orders in that form for immediate notification of the President are in accordance with the traditional practice of the Senate, and that the Secretary of the Senate was justified in treating these orders as authority for immediate notification.

The contention has been made that although the Senate intended to and did convey to the President a formal notice of consent to the appointments, unconditional in form, there was an implied qualification that the Senate might reconsider and withdraw the consent and therefore the President should have withheld action until the expiration of the period allowed by Senate rules for reconsideration.

While the Senate rules are not very explicit, a reasonable and fair interpretation, with a view to reconciling all their provisions and in the light of established legislative and executive practice, leads only to the conclusion that the Senate intended to and did constitutionally consent to your making the appointments when you did. Reasonably construed there is nothing about the rules which renders them obnoxious to any constitutional provision. One provision of these rules is that when a nomination is confirmed, a motion for reconsideration may be made within either of the next two days of actual executive session. This must be read in connection with paragraph 4, which provides that nominations confirmed or rejected shall not be returned by the Secretary to the President until the expiration of the time limited for making a motion to reconsider or while such a motion is pending "unless otherwise ordered by the Senate". That rule was intended to protect and preserve the power of the Senate to reconsider. It carries the inference that if notification of confirmation be transmitted to the President, the Senate loses the power of reconsideration if the President should act on the notification by making an appointment before a request for return of the notification is delivered to him.

The rules also plainly recognize that before the time for reconsideration has expired or even while a motion for reconsideration is pending, the Senate may order an immediate notification of its consent to the appointment to be transmitted to the President. If the Senate makes no order directing immediate notification to be sent to the President, the notification would be withheld until the expiration of the time allowed for reconsideration; but where the Senate orders a notification to be sent forthwith and without waiting for the expiration of the reconsideration period, some purpose must be attributed to that action. Why order immediate notification to be sent to the President unless he is expected to act upon it? The only conceivable purpose in expediting the notice is to make it possible for the President to expedite the appointment. If ordering the notification of confirmation to be sent to the President in advance of the expiration of the time allowed by the rules for reconsideration is not intended as a formal announcement and expression of the Senate's consent to an immediate appointment, the advanced notification would have no purpose whatever. The rules provide in such a case for no second notification, and if the first one be not effective so that the President may rely on it, he never will receive a notification of final consent, to the appointment. The President would never be able to rely on any notification and would be obliged to inform himself as best he might as to whether the Senate had finally consented to the appointment.

It has been suggested that even though a notification of the confirmation has been sent by the Senate to the President in advance of the expiration of the period allowed for reconsideration, it is subject to recall at the pleasure of the Senate without regard to what the President has done in reliance on it, and that this is implied in the provision in paragraph 3 of Rule XXXVIII to the effect that where a motion for reconsideration is made it shall be accompanied by a motion to request the President to return the notification. The fallacy of that argument rests in the assumption that paragraph 3 contemplates that the notification is under all circumstances subject to recall during the reconsideration period. This rule assumes that a request for a return of the notification may be effective if it reaches the President before he has made the appointment. In that case he would, no doubt, comply with the request. It also assumes that where nominations have been rejected and the President consequently makes no appointments, there is no difficulty about recalling the notification. It is consistent, however, with the idea that the request for return of the notification will be too late if it fails to reach the President before the appointment is made. Senate practice lends weight to these conclusions.

The position that the Senate did consent that these appointments be immediately made, subject to revocation on reconsideration 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 appointment because of dissatisfaction with his official acts. Any rule that provided for such a course would be void. The consent required by the Constitution is a consent absolute and irrevocable when acted on by the Executive. With such a condition attached it would be a case, not of a void condition, but of an invalid appointment. Either these appointments are valid because made with the unqualified consent of the Senate or they are void. There is no middle ground.

Ordinarily the Senate is the judge of its own rules, but where it makes a retroactive interpretation applicable to past transactions which involve action of the executive branch of the Government, the question becomes a legal one and open to judicial inquiry. I cannot escape the conclusion that, fairly construed, the rules of the Senate contemplate that where it orders notification of the Senate's consent to an appointment to be forthwith transmitted to the President without waiting for the expiration of the period for reconsideration, that action is intended as a deliberate expression to the President of the Senate's unqualified consent to the immediate appointment, and that it amounts to a decision by the Senate, not under suspension of its rules but in accordance with them, 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.

I am of the opinion, therefore, that what transpired in this case amounted to an expression by the Senate of its consent to these appointments and that the appointments were constitutionally made and became effective; and that the return of the papers to the Senate would serve no lawful purpose because no action which the Senate could now take would disturb or operate to revoke the appointments.
Respectfully,
WILLIAM D. MITCHELL

Attorney General

[The President, The White House]

On February 4, 1931, the Senate voted to confirm Messrs. Garsaud and Draper but not to confirm Mr. Smith. In a subsequent court case the Supreme Court upheld the President's position that confirmation could not be reconsidered and rescinded.

Herbert Hoover, The President's News Conference Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/212108

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