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Senator WHERRY. I have a great admiration for your ability and you know that, Senator Green.

Senator GREEN. Thank you.

Senator HOLLAND. This just occurred to me while you were talking, and maybe there is a simple answer for it. Does the present law apply equally to Cabinet members regardless of whether they have actually been confirmed? That is, does it apply to appointees during a recess?

Senator WHERRY. I believe I have covered that in the committee print of my bill, wherein, beginning at line 20, page 3, the following appears:

(e) Subsection (a), (b), and (d) shall apply only to such officers as are eligible to the office of President under the Constitution. Subsection (d) shall apply only to officers appointed, by and with the adrice and consent of the Senute, prior to the time of the death, resignation, removal from office, inability, or failure to qualify, of the President pro tempore, and only to officers not under impeachment by the House of Representatives at the time the powers and duties of the office of the President devolve upon them.

Now I agree with President Truman completely on the main principles of his letter, because I think he is correct.

I should like to complete my prepared statement.
The CHAIRMAN. If you will do so.

Senator WHERRY. H. R. 3587 further provides that succession after the President pro tempore shall devolve upon the Secretaries of the Cabinet in the order of their rank. However, any person in the line of succession taking the powers and duties of Acting President shall relinquish them after a Speaker of the House is qualified.

The debate in the House on June 29 was confined largely to the specific provisions of H. R. 3587 but it also brought out the several constitutional questions which have complicated the matter of Presidential succession since the first debates were held in the Constitutional Convention of 1787. In discussing whether or not the Speaker of the House and the President pro tempore of the Senate are "officers" of the Federal Government, the famous Blount case was referred to. That case, which was an impeachment of William Blount, a former United States Senator from the State of Tennessee, in 1797, established the rule, which was undisputed for many years, that a Senator was not such a civil officer of the United States as to be liable to impeachment by the House of Representatives.

Those who argued in the House on June 29 that the Speaker and President pro tempore of the Senate are not such "officers” as are eligible to succeed to the Presidency, based their argument on the holding in the Blount case. In opposition to this stand, however, attention was called to the case of Lamar v. United States (241 U. S. 102), which holds that a Member of the House of Representatives of the Congress of the United States is an officer acting under the authority of the United States, within the meaning of the United States Criminal Code, section 32, making criminal the false impersonation of such officer with intent to defraud. In this case the defendant had contended that he could not be guilty under this Federal act, prohibiting impersonation of a Federal officer, because a Member of the House (whom he had sought to impersonate) was not a Federal officer. The Court, however, decided otherwise, stating:

Guided by these rules, when the relations of Members of the House of Representatives to the Government of the United States are borne in mind, and the

nature and character of their duties and responsibilities are considered, we are clearly of the opinion that such members are embraced by the comprehensive terms of the statute. If, however, considered from the face of the statute alone, the question was susceptible of obscurity or doubt—which we think is not the case—all ground for doubt would be removed by the following considerations : (a) Because prior to and at the time of the original enactment in question the common understanding that a member of the House of Representatives was a legislative officer of the United States was clearly expressed in the ordinary, as well as legal, dictionaries. (See Webster, verbo "office”; Century Dictionary verbo “officer”; 2 Bouvier's Law Dictionary, 1897 ed. 540, verbo “legislative officers”; Black's Law Dictionary, 2d ed., p. 710, verbo “legislative officer.")

(b) Because at or before the same period in the Senate of the United States, after considering the ruling in the Blount case, it was concluded that a Member of Congress was a civil officer of the United States within the purview of the law requiring the taking of an oath of office. (Congressional Globe, 38th Cong., 1st sess., pl. 1, pp. 320-331.)

(c) Because also in various general statutes of the United States at the time of the enactment in question a Member of Congress was assumed to be a Civil officer of the United States, Revised Statutes, Secs. 1786, 2010, and subdivision 14 of Sec. 563.

(d) Because that conclusion is the necessary result of prior decisions of this court, and harmonizes with the settled conception of the position of members of state legislative bodies as expressed in many state decisions.

It will be seen that there is considerable weight of arument on both sides of this question and that a solution might be made by positive legislative statement that the Speaker and the President pro tempore are "officers of the United States” and, as such, eligible to succession to the Presidency.

The House struck from the bill the provision for a special interim election on the ground that such a procedure would require amendment of the election laws of all of the 48 States, and in many cases, of their constitutions. The debate also shows that the Members felt that should the Presidency within a short space of time pass first to the Vice President and then to the Speaker that to call a special election would subject the country to so severe a shock that both the economical and political life of the country would be imperiled.

That completes my prepared statement, and I would like to devote whatever time remains to pointing out the difference between

my

bill and these other three or four bills that have been introduced.

Take Senator Green's resolution—that is a study and I am not averse to a study, we have been arguing this for 150 years, but when you get through you will have about the same facts before you as you have now.

The CHAIRMAN. May I interrupt you to say that when we sit down in committee to discuss these various bills we will have a chance to go into all these differences, and if you don't mind saving your comments in that respect until that time, we will close this hearing so that we can get over to the Senate.

Senator WHERRY. It is perfectly agreeable to me to take that matter up in committee session.

The CHAIRMAN. Then I will declare the hearings on these bills closed. (Whereupon, at 11:50 a. m., the hearing was closed.) m

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ONE CONSOLIDATED GENERAL APPROPRIATION BILL

HEARINGS

BEFORE A

SUBCOMMITTEE OF THE COMMITTEE ON RULES AND ADMINISTRATION

UNITED STATES SENATE

EIGHTIETH CONGRESS

FIRST SESSION

ON

S. Con. Res. 6

A CONCURRENT RESOLUTION TO INCLUDE ALL GENERAL
APPROPRIATION BILLS IN ONE CONSOLIDATED

GENERAL APPROPRIATION BILL

MARCH 24, MAY 1, AND JUNE 24, 1947

Printed for the use of the Committee on Rules and Administration

[blocks in formation]

COMMITTEE ON RULES AND ADMINISTRATION

C.

WÁYLAND BROOKS, Illinois, Chairman KENNETH S. WHERRY, Nebraska

CARL HAYDEN, Arizona
BOURKE B. HICKENLOOPER, Iowa THEODORE FRANCIS GREEN, Rhode Island
WILLIAM F. KNOWLAND, California BRIEN MCMAHON, Connecticut
HENRY CABOT LODGE, JR., Massachusetts FRANCIS J. MYERS, Pennsylvania
WILLIAM E. JENNER, Indiana.

SPESSARD L. HOLLAND, Florida
JOHN W. BRICKER, Ohio
IRVING M. IVES, New York

ALBERT L. SEIDEL, Clerk

SUBCOMMITTEE ON RULES

KENNETH S. WHERRY, Nebraska, Chairman IRVING M. IVES, New York

CARL HAYDEN, Arizona

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