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The CHAIRMAN. Representative Sumners, we will be glad to hear



Mr. SUMNERS. Senator, I do not know what you would be especially interested in, but may I take just a minute to direct your attention to one or two things that I think are worthy of consideration.

The CHAIRMAN. Please do so in your own way, Judge.

Mr. SUMNERS. Mr. Chairman, we have, as you all know, the custom of doing what we call pocket-vetoing of bills. That custom grew up during the first 18 years of our operation and originated out of a confusion, a failure to distinguish between the constitution of our legislative body and the constitution of the British House of Commons. In the British House of Commons they have to introduce, at the beginning of each session, all legislation that has to be considered, and we did the same thing during the first 18 years of our own legislative experience. About that time somebody discovered that the adjournment of the first session of Congress did not terminate the Congress and did not have any effect at all on any pending, uncompleted legislation, so as we came back to the second session everything that remained in status quo in the interim was taken up.

But in the meantime this custom of pocket-vetoing of legislation had grown up, and nothing had ever been done about it. As a result, we have to introduce at the beginning of the second session all uncompleted legislation that did not reach the President 10 days before the expiration of the legislative period.

The matter was carried to the Supreme Court a good many years ago, and on that occasion I appeared as friend of the Court, and the Court was confronted with the difficulty of possibly reviving about 100 bills that were supposed to be dead. The Court did its best to get around the situation and wrote, I think, a very poor opinion, but it held against it.

As you recall, a few years ago Chief Justice Hughes wrote an opinion in which he held that the delivery of a bill during a 3-day recess to the Secretary of the Senate was a good delivery-that it was a delivery to the Senate. Well, it is impossible to draw a distinction between that sort of delivery and a delivery at the expiration of the first session.

Now, I have introduced in the House, and I called it to the attention of the Senate, a resolution (H. Res. 98, 79th Cong., 1st sess.) which proposes that delivery to the Clerk is delivery to the House. The Clerk of the House is the custodian of all unfinished legislation, and when we come back for the second session it is redistributed, and we begin exactly where we left off. I would like to leave that for the consideration of the committee.

The CHAIRMAN. It may be incorporated in the record at the conclusion of your statement.

Mr. MICHENER. What is the number of that bill?

Mr. SUMNERS. House Resolution 98.

Now, Mr. Chairman, there are two other matters that it seems to me might be of interest to this committee. About 20 years ago I introduced a resolution to create a committee composed of House


Members and Senate Members, with the notion of having a conference of all persons interested, including the Governors of the States, to see if we could not get back into the States some of this accumulated governmental responsibility, which I think all Members of Congress now recognize is beyond human capacity to comprehend.

I have given as good a study as I am capable of giving to this matter, and it seems to me perfectly clear that we cannot have any substantial hope of getting rid of the distinctive characteristics of our Government.

So long as the total governmental power concentrated at Washington can be discharged only through bureaus-I do not think anybody wills to have it, but when you reach the situation where the total governmental power is beyond the capacity of the Members of Congress to legislate, then we have to pass a few general laws and turn them over to these bureaus to make rules and regulations, which have, insofar as the private citizen is concerned, the ordinary citizen, the force of law.

If you should become seriously interested in going into details on that, I would like to discuss that matter in detail with your committee.

(See H. J. Res. 64, 79th Cong. 1st sess., below.)

The CHAIRMAN. We would be glad to have you do so at your con- . venience, Judge.

Mr. SUMNERS. Now, there is another more important propositionI would not say it is more important, but it is becoming more and more important-and that is my proposed constitutional amendment, which if adopted, would continue the present practice of having bills go to the President for his examination, and for his criticism. But if the President returns a bill without his signature, and if, after reconsideration, a majority of both Houses agree to pass the bill, it would become law.

I think it is one of the most remarkable things that this custom has obtained so long. From time immemorial it has been held that the majority shall speak the voice of the group. It has its defects, of course, but it is the best thing we have been able to devise.

The first article of the Constitution puts the power to legislate in the Congress, and that is where it belongs.

A representative system of government, I guess we agree, is a democracy which has outgrown itself. When we examine the divisions of governmental power which we have in our system, we find it does not come from the deliberations of any convention, nor the mind of any philosopher. Instead, it grew up out of experience, out of necessity, and an interesting thing, too, is that the business of these groups was governed by natural law.

Now, I may take just a minute-and I think these fundamental considerations probably might help us to see a few things--to discuss the business of judges.

It was provided, as you know, in the Acts of Settlement, when William and Mary came to the throne in the beginning of the eighteenth century, that the judges should hold office during good behavior, because the Stuarts had been controlling the judgment of the judges. You do not have to read a lot of books to see that you have to have independent judges. You can see that by going out to a football game. You see a man who is a referee, I think you call him, and you know that man cannot properly referee that game if he is interested

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in either one of the teams. He ought to be able to see the plays all over the field impartially, and then he must call them as he sees them.

If anybody wants to know just how crooked judicially a judge is who tries to throw decisions and what happens to him, you just watch that fellow on the football game when the crowd catches him doing it. Now, these things have developed: You have an Executive, a President I do not mean this President, I am talking about the Presidency and we have given him this power. Now, this arrangement of the three coordinate branches was something that the people who met in the Philadelphia Convention had nothing to do with. They had no commission to create a government; they were the crea ture of the Government of these three coordinate branches.

So in the first article of the Constitution they put the power to legislate where nature puts it, in the policy-making agency of the Government, but when they got over to the mechanics of the thingwhich is human nature, and the boys in Philadelphia had to arrange the mechanics-when they provided that the bill should go up to the Presidency, then they actually, in effect, made the Presidency a part of the legislature, which is an unnatural confusion of governmental


So when the bill is examined by the President, he does a very helpful service to the legislative branch. He points out to the legislative branch the reasons why that legislation ought not to be enacted as it has been drawn.

That is a helpful service if the House would get it without any stick in the hands of the Executive. The country would get it, and that would react on the Senate. In that event it is a fine service for the Presidency to have that power.

But when the President objects, he becomes immediately a part of the legislature, and a tremendously powerful part of the legislature. He has, in effect, as many votes, assuming he were over here, as 15 or 16 Senators; and if he gets licked here, he goes in the House, and he has as many votes as all the Members of Congress from Washington to the Gulf of Mexico, which is an absurdity.

I am going to be very candid about it. When you consider that power and, in addition to it, the disposition of judgeships-I do not know whether you have any over here, but sometimes we have persons in the House who are sort of angling for a judgeship, who want to be taken care of in a good job in the event they are defeated.

Now, that man may not be influenced at all; but I mean, in effect, he is the man that the Presidency is tremendously interested in. Mr. MICHENER. That would be especially true if the President called the Members up and in substance said to them, "Well, I hope you will go along with me today."

Mr. SUMNERS. I have a notion, Mr. Chairman, that if a man has got his heart set on a job and a vote is coming up, you generally find him voting according to the desire of the appointing power.

Mr. Cox. May I make a comment there?


Mr. Cox. I have been here a number of years myself, and I have seen fine, talented people in the grip of an ambition for an office with life tenure crumple like torn paper.

Mr. SUMNERS. That is right. Well now, you just take it and bring it home. Suppose you have power to appoint someone to a post

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office and you have got an election on; well, that fellow who wants to be appointed to the post office down at that cross roads would be pretty liable to support you; or, if he does not support you, he hasn't got much chance getting the job.

Mr. MICHENER. Judge, you are talking in the past, because we passed a civil-service law here just a few years ago which relieves the Congressman from that responsibility. As a minority member, I will say I am sure that the Congressman is relieved.

Mr. Cox. I wonder if you would join me in the observation that the civil service, after all, is more or less of a humbug.

Mr. SUMNERS. The point I am trying to make, Mr. Chairman, is this: With all these powers which the Presidency has, and then this power really to sit in your body, and in our body, and in effect cast 15 votes in the Senate and 71 votes in the House, that is an unnatural confusion of governmental powers which is going to give us tremendous difficulty in this country unless we do something about it while we can do it deliberately.

When you come to examine what happened in our governmental history before we separated from England, you will observe it was that sort of power exercised by the Kings of England which has been largely responsible for the fact that the King of England has no power at all now.

Now, you take what is developing. I find more and more that we are writing into the provisions of our legislation that laws may be terminated by a concurrent resolution of the two Houses. Now, that is depriving us, with regard to the field of that legislation, of the benefit of the President's advice.

I realize that you gentlemen know as much or more about it than I do, so I will not take up any more time, but I do not think there is anything more important, if we are going to try to preserve our form of government, than to put the power to legislate in the legislative branch of the Government. We are held responsible by public opinion.

Congress ought to have the power, it ought to have no escape, but you can forsake the responsibility where you are not given the power. I mean it is a confused situation. The Presidency is the center of this type of government, and I think it is perhaps in the last stage of its development as a bureaucratic system.

Mr. Cox. Does not repeal by concurrent resolution tend to accomplish the very thing you have in mind-that is, to keep the power to legislate in the Congress?

Mr. SUMNERS. Yes. We have in our committee, as these two gentlemen know, put that provision in all these war power bills especially, but you are deprived of the benefit, which is a valuable thing, of the President's criticism of what you are doing.

Mr. Cox. And yet you are afraid of his veto.

Mr. SUMNERS. You have to do it.

Mr. Cox. Because of the requirement of the Constitution as to the two-third vote.

Mr. SUMNERS. It is perfectly ridiculous. Here is a situation where, in order to get the benefit of the President's examination and criticism, the power to legislate, the power to determine what is to be your governmental policy, moves from the majority to the minority. I mean there isn't any sense to it. You have a situation where,

assuming that the entire Senate is in session, 33 Members, I believe it is, of the Senate speak the voice of the Senate if they are supported by the Presidential power. It is as absurd as anything that can happen.

Mr. MICHENER. Right there, Judge, with reference to the repealing of a law passed by the Congress and signed by the President by concurrent resolution, it was thought for many years that that could not be done constitutionally.

Mr. SUMNERS. It cannot.

Mr. MICHENER. We have been inserting those clauses recently, but the Supreme Court has never passed on it.

Mr. SUMNERS. That is right. Well, here is the theory under which we have done it, as you know: It is not a repeal by the House and Senate but it is a provision for a contingency, if it occurs, that is in the law itself at the time that it passes that makes the power terminate. We can provide upon the issuance of some certificate by the President, or proclamation by the President, that it becomes noneffective as of that date.

Now, the President cannot repeal it, but it is in the body of the law. The House passes it, the Senate passes it or the Senate concurs in it. I think they can provide for the happening of any contingency. Who is to say we cannot? Who is to say the legislation shall cease to operate? But I do not know what some Supreme Court might sometimes do.

Mr. MICHENER. The argument that the distinguished chairman of the House Judiciary Committee has just made has this value, that it would give a friendly Supreme Court a peg on which to hang its hat in case it decided so to decide.

Mr. SUMNERS. Personally I do not believe there is any question about it. I think when the Constitution gives the Congress power to legislate, if it violates no provision of the Constitution, it can put anything it wants to in its bills, provided it does not impinge upon the right of the State or the right of the individual citizen.

As Mr. Michener indicated, the question is an unsettled question and nobody knows what will happen.

Thank you very much.

The CHAIRMAN. Judge Sumners, we are very happy to have had you with us. May I ask, would you like to have any of these other resolutions inserted in the record?

Mr. SUMNERS. I think it would be a good idea to have the resolution that proposes the constitutional amendment in the record. I am very grateful to you gentlemen.

The CHAIRMAN. Thank you very much, Judge.

(H. Res. 98 and H. J. Res. 63 and 64 are as follows:)

[H. Rept. No. 98, 79th Cong., 1st sess.]

Resolved, That the Rules of the House of Representatives are amended by inserting after paragraph 3 of rule III a new paragraph as follows:

"3a. He shall have authority, in case of a recess or adjournment of the House, to receive on behalf of the House any bill, resolution, order, or vote which may be returned to the House by the President, with his objections, pursuant to section 7 of article I of the Constitution."

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