[Congressional Record Volume 158, Number 12 (Thursday, January 26, 2012)]
[Senate]
[Pages S111-S112]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. WICKER. Mr. President, I rise because I am deeply concerned about 
President Obama's unconstitutional overstep of executive authority in 
the ostensible appointment of Richard Cordray as the Director of the 
Consumer Financial Protection Bureau, the CFPB, and three new members 
of the National Labor Relations Board. These unilateral, nonrecess 
appointments are a blatant abuse of power, one that threatens the very 
legitimacy of the confirmation process and essentially undermines 
Congress's critical responsibility to restrain the excesses of the 
executive branch.
  On January 4, mere weeks after this body had rejected Mr. Cordray's 
nomination, the President went ahead with his own agenda, disregarding 
our decision and the fact that the Senate was in pro forma session. 
Days later, unbelievably, the Obama Justice Department's Office of 
Legal Counsel defended the move, essentially saying that pro forma 
sessions do not matter anymore; that the President can determine 
whether the Senate is in recess.
  Reversing years of precedent, the administration is asserting that 
the executive branch now has the authority to decide whether the 
legislative branch is or is not in session. This presumptuous action by 
the President goes far beyond the limited powers he is granted by our 
Constitution. It is an affront to the democratic checks and balances 
established by our Founders, and it constitutes a gross violation of 
precedents set by those who have come before us.
  The courts surely will have a say in what the President has done, 
amounting to an expensive, unnecessary move for pure political 
reasoning. It was only a matter of days before business groups filed a 
legal challenge against the President's appointments to the NLRB.
  To be sure, the President has the right to make recess appointments. 
This much is unquestioned and is clearly set forth in article II, 
section 2 of the Constitution, which states the President can ``fill up 
all vacancies that may happen during the recess of the Senate.''
  But the power he has to execute this right nevertheless hinges on a 
condition that all parties have acknowledged: The Senate must be in 
recess. As it states in article I, section 5, clause 4 of the 
Constitution:

       Neither House, during the session of Congress, shall, 
     without the consent of the other, adjourn for more than 3 
     days.

  The House of Representatives had not formally given our Chamber that 
consent when the President made his appointments. Moreover, Senators 
had agreed by unanimous consent to remain in pro forma session.
  What the President has done triggers a dangerous new precedent. With 
this overstep, those in the Obama administration have put their 
political agenda above the Constitution and above the founding 
principles that established our government's separation of powers. This 
is no trifling matter.
  Equally troubling is this power grab could inspire further overreach, 
setting an unconstitutional model for future administrations. It stands 
to reason that if the President's judgment, not Congress's, dictates 
when the Senate is in recess, then what would stop him from making an 
appointment whenever he chooses?
  Michael McConnell, a distinguished former Federal judge and director 
of the Constitutional Law Center at Stanford Law School, recently 
suggested in the Wall Street Journal that the President could, for 
example, make an appointment overnight or during a lunch break. The 
parameters of what recess means would be subject to his discretion and 
his discretion alone.
  In 2007, majority leader Harry Reid kept the Senate in pro forma 
session to block nominations by President Bush. He said then that 
recess appointments are ``an end run around the Senate and the 
Constitution.'' The majority leader's position then was that pro forma 
sessions may be used to prevent recess appointments. The Democratic 
leadership was correct on the law then and they ought to be outraged 
now over President Obama's disregard of precedent and of the 
Constitution.
  Instead, the Democratic leader, who should be protecting the 
institution that he currently has stewardship of, as well as protecting 
our Constitution, last week defended the President's appointments on 
the national news as ``a good move.''
  The Constitution does not change based on which party occupies the 
White House. The same rules should apply no matter who holds office. 
America was not built upon nor did it rise to greatness because of a 
single branch of government. Our democracy sits on three separate 
pillars, and the decisions of the legislative branch are not merely a 
hurdle for the President to run around.
  The Constitution endowed the Senate with exclusive authority to give 
advice and consent on the executive branch and official nominations. 
Senators upheld their role to advise when we rejected Mr. Cordray's 
nomination. Many of us made our reasons for the disapproval well known.
  Last year, 44 Republican Senators sent a letter to the President 
stating that the Consumer Financial Protection Bureau established by 
the Dodd-Frank Act was in desperate need of reform before a Director 
could be appointed. This has nothing to do with Mr. Cordray as an 
individual, but it has everything to do with creating a flawed agency--
an extremely powerful one at that. We pointed out our concerns about 
how unaccountable this Bureau will be to the American people. We raised 
a red flag about the extraordinary power it gives to unelected 
government bureaucrats, particularly the Bureau's Director. It is clear 
that our advice did not fit with the White House's agenda.
  This happens in a functioning democracy, and this should be honored. 
The President has decided not to honor the will of the Senate. He has 
tried to make an unauthorized appointment that the Members of this body 
have rejected. In doing so, in circumventing the decisions of elected 
public servants, his Executive order ultimately diminishes the voice of 
the American people.
  In recent months, the President has made it obvious that he wants to 
rail against a do-nothing Congress. Perhaps it is part of his 
reelection strategy. Yet, instead of working with Congress to make 
needed reforms, he fuels an already polarized environment with this 
move on recess appointments.
  I say this with all sincerity to the President and to my colleagues 
on the other side of the aisle: There is a time for spin and there is a 
time to make political points, but politics and theater ought to stop 
short of trampling on our Constitution.
  Like each of you, I made an oath to support and defend the 
Constitution when I took this office. I would not be upholding this 
pledge if I did not speak out now about what the President has done. 
Preserving the constitutional sanctity of the decisions of the Senate 
and the role it serves is one way we support and defend our founding 
document and the democratic ideals of those who created it.
  The chair of the Banking Committee has scheduled a hearing on 
Tuesday, supposedly to hear testimony from Mr. Cordray on his plans for 
the Consumer Finance Protection Board. Let me be explicitly clear. 
Richard Cordray is not the duly constituted Director of the CFPB. His 
purported recess appointment does not comply with the Constitution and 
is, in fact, a nullity. I will not provide the administration with an 
appearance of legitimacy in this action, and I will therefore not be in 
attendance at next Tuesday's hearing. This may seem to be a small step, 
but I hope it is the first of what will become a debate in this Senate 
by both parties about the constitutional system of checks and balances. 
This matter will also go to the courts, and I pray that somewhere in 
the process the sanctity of our Constitution will be upheld.

[[Page S112]]

  I approach this matter regretfully and soberly but with apprehension 
about what the Obama administration is trying to do to our 225-year-old 
Constitution. I call upon Members of both parties in this Senate to 
rise in solemn defense of this institution and the constitutional 
principle of the separation of power.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Alaska.

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