[Congressional Record Volume 158, Number 12 (Thursday, January 26, 2012)]
[Senate]
[Pages S113-S114]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
RECESS APPOINTMENTS
Mr. LEE. Madam President, in defense of the Constitution, I stand
against an action taken recently by our Chief Executive. President
Obama's January 4, 2012, appointments to the Consumer Financial
Protection Bureau and to the National Labor Relations Board are
different in kind than previous recess appointments made by Presidents
of the United States made by both political parties. These four
appointments are unconstitutional because they did not, as required by
article II, section 2, receive the ``advice and consent'' of the
Senate, even though such advice and consent was necessary under the
circumstances.
President Obama has asserted that the appointments are constitutional
under the recess appointments clause. That clause provides that the
President may ``fill up all Vacancies that may happen during the Recess
of the Senate.'' That clause does not apply here, however, because the
Senate was not in recess when President Obama made the appointments in
question.
In making these appointments, the President did not state that he
believes an intrasession adjournment of less than 3 days constitutes a
recess, and there can be little dispute that such a brief adjournment
as occurred between January 3, 2012, when the second session of the
112th Congress officially began, and January 6, 2012, when the next pro
forma session of the Senate occurred, does not, in fact, constitute a
recess for purposes of the recess appointments clause.
The Department of Justice has consistently maintained that an
intrasession adjournment must be longer than 3 days to constitute such
a recess. The text of the Constitution evidences that the Framers did
not consider an adjournment of less than 3 days to be constitutionally
significant. Indeed, in article I, section 5, we read that ``neither
House, during the Session of Congress, shall, without the Consent of
the other, adjourn for more than three days.''
Now, at the time these appointments--the appointments in question--
were made, the Senate had not received consent from the House of
Representatives to adjourn for a period of time of more than 3 days. If
an intrasession adjournment of less than 3 days were to be considered
constitutionally sufficient for the President to exercise his recess
appointment power, it is unclear what, if anything, might prevent the
President from routinely bypassing the Constitution's advice-and-
consent requirement and appointing nominees during even weekend
adjournments.
The Department of Justice's Office of Legal Counsel asserts that the
President may unilaterally conclude that the Senate's brief pro forma
sessions do not constitute sessions of the Senate for purposes of the
recess appointments clause. But this assertion is deeply flawed. It is
for the Senate and not for the President of the United States to
determine when the Senate is in session. The Constitution expressly
grants the Senate the power to determine the rules of its own
proceedings.
Granting the President unilateral power to override the Senate's
determination of when it is in session would undermine the
constitutional prerogative and violate the Constitution's fundamental
principles of separation of powers.
The OLC memorandum on which the President relies asserts that the
``touchstone'' for determining when the Senate is in session is ``its
practical effect: viz. whether or not the Senate is capable of
exercising its constitutional function of advising and consenting to
executive nominations.'' This analysis contradicts the text and the
original understanding of the recess appointments clause.
The purpose of that clause, we read in Federalist No. 67 which was
authored by Alexander Hamilton, was to avoid obliging the Senate ``to
be continually in session for the appointment of officers.'' Nothing in
either the Constitution's text or in the debate surrounding the recess
appointment clause suggests in any way that the President should have
the unilateral power to appoint officers and judges at times when the
Senate is regularly meeting, even if that body is not conducting
substantial business.
In addition, the OLC memorandum's functionalist argument fails on its
own terms. During the Senate's pro forma sessions, including its
session on January 6, 2012, the Senate was manifestly capable of
exercising its constitutional function of advice and consent. Notably,
at one such pro forma session on December 23, 2011, the Senate passed a
significant piece of legislation demonstrating that it is, in fact,
capable of conducting business--meaningful business--at such sessions.
But regardless of how much business the Senate conducts during pro
forma sessions or how much business it indicates in statements that it
intends to conduct in advance of such sessions, the Senate has been and
continues to be capable of conducting business at such sessions--
including advising and consenting as to nominations for the President
should it decide to do so.
[[Page S114]]
OLC's argument boils down to an untenable assertion that because the
Senate has chosen not to act on the President's nominations during its
sessions, it was incapable of doing so.
Finally, OLC's assertion that pro forma sessions are not cognizable
for purposes of the recess appointments clause violates established
constitutional practice and tradition. The Constitution provides that
``[n]either House, during the session of Congress, shall, without the
consent of the other, adjourn for more than three days,'' and that
``unless [Congress] shall by law appoint a different day,'' Congress
shall begin each annual session by meeting ``at noon on the 3d day of
January.''
The Senate has commonly and without objection used pro forma sessions
to fulfill both constitutional requirements, evidencing a past
consensus that such sessions are of constitutional significance.
President Obama's novel assertion that such sessions no longer count
for purposes of the recess appointments clause thus upsets precedent
and creates an internal contradiction in the treatment of Senate
sessions for purposes of the Constitution.
President Obama's January 4, 2012, appointments to the CFPB and the
NLRB are unconstitutional. As duly sworn Senators, we each have an
institutional and a constitutional duty to preserve and defend the
prerogatives of the Senate, particularly from the encroachments of the
Executive. The President's unconstitutional appointments simply cannot
stand.
Throughout my time as a member of the Judiciary Committee, I have
made it a point to work collaboratively with Members from across the
aisle, and I have also gone out of my way to cooperate with the current
administration to ensure that the overwhelming majority of the
President's nominees to judicial and other positions are considered and
receive a vote. Both in the Judiciary Committee and on the floor I
voted for dozens of nominees with whom I fundamentally disagreed on
various issues simply because they were nominated by a President who
was duly elected by the people. But I will do so no more.
My concerns, to be clear, are nonpartisan, and I will be equally
critical of any Republican President who might attempt to make recess
appointments under the same deeply flawed legal theory. Given this
President's blatant and egregious disregard for proper constitutional
procedures and for the Senate's unquestioned role in such appointments,
I find myself duty-bound to resist the consideration and approval of
additional nominations until the President takes steps to remedy the
situation.
Regardless of what precise course I choose to pursue, the President
certainly will not continue to enjoy my nearly complete cooperation
unless and until he rescinds his unconstitutional recess appointments.
Thank you, Madam Chair.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. SANDERS. I thank the Chair.
(The remarks of Senator Sanders pertaining to the introduction of S.
2037 are printed in today's Record under ``Statements on Introduced
Bills and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Utah.
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