[Congressional Record Volume 158, Number 14 (Monday, January 30, 2012)]
[Senate]
[Pages S149-S151]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. GRASSLEY. Madam President, one week ago today, I addressed the 
Senate on President Obama's decision to bypass the Senate, and the 
Constitution as well, by making four ``recess'' appointments at a time 
when the President's recess appointment power did not apply.
  I explained in detail why the legal memo released by the Obama 
administration attempting to justify President Obama's actions did not 
hold legal water.
  Last Thursday, I laid out the case that this is not an isolated 
incident or a technical legal squabble. Rather, the President's recent 
actions are part of a pattern of disregard for the constitutional 
system of checks and balances.
  Today, I will address why such criticisms are justified and why such 
criticisms are necessary.
  First, is it legitimate for a U.S. Senator to criticize a legal 
opinion issued by the Office of Legal Counsel and the Senate-confirmed 
head of that office?
  I have no doubt Senators may criticize such opinions and, when the 
facts warrant, ask whether that office and its head are exercising the 
independence that is required for the Constitution to be upheld. 
Recently, we read some in the media apparently disagreed with this. 
They say it is wrong for a Senator to ever criticize a Senate-confirmed 
official's independence and judgment. They say that all a Senator can 
do is criticize the official's substantive arguments.
  I say nonsense. When the media makes these claims, it merely seeks to 
divert attention from the weakness of the opinion's actual conclusions 
and reasoning. In my statement last week, I laid out my disagreement 
with the contents of the Office of Legal Counsel. Of course, Senators 
and administration officials can reach different conclusions on the 
law; each can have a reasonable point of view; but that is not the case 
here.
  If the Office of Legal Counsel is to be ``the Constitutional 
conscience of the administration'' that some in the media characterize 
it to be, it must exercise a certain level of independence, as I 
mentioned in my statement.
  When a President who takes an expansive view of his power asks the 
Justice Department officials, who owe their job to him, whether he has 
the constitutional or legal authority to take such action, there is 
always the chance that pressure will overtake their responsibilities to 
provide their best legal judgment.
  That is why at Ms. Seitz' confirmation hearing and in a followup 
communication, we took very painstaking efforts to give her the 
opportunity to state on the record her commitment to providing 
independent legal advice, to make sure she would place loyalty to the 
law and loyalty to the Constitution above her loyalty to the President. 
That was our purpose. Ms. Seitz promised to act independently. She 
promised not to stand idly by if she thought the Constitution was being 
violated.
  The only way to tell whether the office has given independent advice, 
the only way to tell whether pressure has been resisted, is to review 
the arguments and the reasoning the Office of Legal Counsel provides.
  The media cannot address criticism of whether the head of that office 
is independent and has used good judgment without such a review. It is 
not enough that the media might agree with her conclusions. In this 
case, the analysis in the Office of Legal Counsel opinion was so poor 
as to raise legitimate questions concerning judgment and independence.
  The Office of Legal Counsel is supposed to give the President 
objective legal advice before that person acts. It is not supposed to 
provide a weakly thought-out rationalization for a Presidential 
decision to act that has already been made.
  Here, the arguments in the opinion are so weak that a fair-minded 
person can question the independence and judgment of the opinion's 
author. For instance, the opinion is internally inconsistent. It 
correctly recognizes that a President's ability to make recess 
appointments turns on the capacity of the Senate to conduct business. 
But in determining whether the pro forma sessions constitute a recess, 
the opinion does not consider at all the capacity of the Senate to 
conduct business and what it could do. Rather, it relies upon what 
individual Senators said, not what the institution said or can do, and 
it ignores not only what theoretically the capacity of the Senate had 
to act but even its actual actions.
  Similarly, the established meaning of the word ``recess'' is the same 
each

[[Page S150]]

time it appears in the Constitution. Giving the term the same meaning 
means that the President can make recess appointments, but that this is 
a limited power.
  The Office of Legal Counsel, contrary to clearly established 
precedent, inconsistently defines the term ``recess'' differently when 
it was used in different parts of the Constitution. But we cannot do 
that. The only thing consistent in the opinion is that it interprets 
recess each time in a way that expands the power of the President to 
make recess appointments and in such a way as to leave open the 
question of whether that power is limited in any meaningful way.
  Former Federal Circuit Judge Michael McConnell, himself a former 
Justice Department lawyer who has defended Presidential power, found 
the arguments in the Office of Legal Counsel opinion to be so 
implausible--those are his words--that ``it is difficult to escape the 
conclusion that the Office of Legal Counsel is simply fashioning rules 
to reach the outcome that it wishes.''
  Since the outcome that the Office of Legal Counsel wishes is to 
expand Presidential power contrary to the text of the Constitution, and 
also many decades of historical practice, it is quite fair to question 
the independence, the judgment, and the adherence to statements made 
during the confirmation process by the head of that office.
  The media again focused more on personalities than on substance, and 
they will say the Bush administration reached a similar conclusion, so 
how can Ms. Seitz be criticized. That is where the media is coming 
from.
  There are three points to be made that set the record straight for 
the newspaper.
  First, President Bush did not make recess appointments when the 
Senate was in pro forma session. Secondly, President Bush did not even 
claim he could make such recess appointments while declining to do so. 
Third, his Office of Legal Counsel did not issue any opinion that would 
be binding on future Justice Department advice.
  Unlike the public actions of the Senate-confirmed head of OLC, a 
lower level official in the previous administration, the Bush 
administration, apparently wrote a secret memorandum to the file on 
this subject.
  The existence of such a memorandum was not known until the Office of 
Legal Counsel's opinion referred to it and sought to rely on it. It is 
not possible to evaluate the reasoning of that memorandum because the 
Department of Justice has not agreed to release it, despite my request 
that they do release it.
  If the Office of Legal Counsel is to exercise the independent 
judgment that is necessary for it to properly perform its functions, it 
cannot rely on some sort of secret memo or memos from lower level 
officials. That approach creates incentives for the Office of Legal 
Counsel heads to avoid accountability. An incentive is created for the 
preparation of secret memoranda that make outlandish claims of 
Presidential power if they cannot be reviewed by anybody. No one knows 
of the memo. So its arguments do not face the transparency of public 
scrutiny. The President and Office of Legal Counsel take no 
responsibility for its conclusions.

  Then the Office of Legal Counsel later issues a public opinion on the 
subject. To bolster very weak arguments, it cites earlier memos. But it 
avoids transparency as well by keeping the memoranda secret, so no one 
can see that the opinion's weak arguments may be supported by only 
other weak arguments. It avoids accountability by suggesting that this 
question was already decided by an earlier Office of Legal Counsel 
memorandum.
  Instantly, the number of administrations that support expanded 
Presidential power goes from zero to two, neither one of which is said 
to be responsible for that expansion. That bootstrapping can never lead 
to a reasoned, objective analysis of Presidential power.
  It cannot produce the independent OLC that Ms. Seitz promised the 
Senate she would provide at her confirmation. The media has also made 
the strange argument that Ms. Seitz' opinion must be professional and 
her judgment and independence cannot be questioned because of her high 
professional reputation.
  Is that not a little bit backward? The legitimacy of the argument 
contained in a legal opinion is not established by the reputation of 
the person who wrote it. Reputations are not steady. They are 
established by the quality of the professional work, not the other way 
around.
  In the past, a prominent Democratic Senator called for a judge to 
resign because of his legal work as Office of Legal Counsel head. The 
Washington Post, in an earlier editorial, criticized the opinions of 
other Bush administration OLC lawyers as displaying ``the logic of 
criminal regimes'' and ``bringing shame to the American democracy.''
  If the Post truly believes that criticizing Office of Legal Counsel 
lawyers is beyond the pale, they should retract their earlier opinions 
and condemn the far harsher rhetoric that was hurled against Bush OLC 
lawyers.
  While explaining what is wrong with the newspapers, I now go to 
explain why my criticisms were not just legitimate but they were 
absolutely necessary. Last Thursday, I laid out in great detail a long 
series of abuses of executive authority and usurpation of legislative 
authority by President Obama and his administration.
  In fact, he made his willingness to bypass Congress a campaign issue 
with slogans such as ``We can't wait for Congress,'' and those 
headlines and slogans were splashed all across the White House website. 
President Obama has made the decision to run for reelection not on his 
record, for obvious reasons, but against Congress. In doing so, he is 
daring Congress to defend its role as representatives of Americans from 
each of the 50 States in the face of his unilateral agenda.
  Some have suggested this is a clever political trap laid by President 
Obama; that if Congress resists the President's power grabs, it will 
validate his slogans and play into his electoral strategy. This may or 
may not be true. However, the stakes are greater than the next 
Presidential election, and the implications of the President's actions 
will be felt well beyond any short-term political gain.
  The Framers of the Constitution foresaw the temptation by one branch 
of government to try to usurp the powers of the other branches. In 
Federalist 51, James Madison explained how the Constitution was 
designed to prevent power grabs through an ingenious system of checks 
and balances.
  He wrote this long quote:

       But the great security against a gradual concentration of 
     several powers in the same department consists in giving to 
     those who administer each department the necessary 
     constitutional means and personal motives to resist 
     encroachments of the others.
       The provision for defense must in this, as in all other 
     cases, be made commensurate to the danger of attack. Ambition 
     must be made to counteract ambition.

  Of course, this assumes a desire on the part of each branch to guard 
its constitutionally granted powers.
  If some Members of Congress are not willing to resist an encroachment 
because they place party loyalty above constitutional responsibilities 
or if members are reluctant to push back for fear of political 
consequences, then the system of checks and balances will not work as 
intended by our Constitution writers.
  All Members of Congress swore an oath to support and defend the 
Constitution. That is our first obligation. I want to be clear that 
this is not an argument about constitutional semantics; it is one of 
fundamental principle.
  As Madison explains in Federalist 51: The ``separate and distinct 
exercises of the different powers of government'' is ``essential to the 
preservation of liberty.''
  This also goes beyond an argument about the ends to which President 
Obama has used the new powers he now claims. His agenda is 
controversial, to be sure, or he would not have had to bypass Congress.
  Still, even those who support this President's policies should not be 
so quick to look the other way. Once the walls separating the powers 
allotted to each branch of government are eroded, they are very 
difficult walls to rebuild.
  The most eloquent expression of the philosophy on which our Nation 
was founded is, of course, the Declaration of Independence. I quote the 
all familiar:

       We hold these truths to be self-evident, that all men are 
     created equal, that they are

[[Page S151]]

     endowed by their Creator with certain unalienable Rights, 
     that among these are Life, Liberty and the pursuit of 
     Happiness.
       That to secure these rights, Governments are instituted 
     among Men, deriving their just powers from the consent of the 
     governed. . . .

  Based on these fundamental principles, the Constitution laid out a 
form of government designed to protect individual rights by resisting 
the concentration of power. This can be frustrating to those who would 
like a more activist government. Still, these features of our 
Constitution perform a very important role in preventing one faction of 
Americans from dominating another faction of Americans.
  I am sure President Obama is convinced his agenda is what is best for 
the country and that the ends justify the means in pursuing that 
agenda. But that is not the Machiavellian ideas that any of our 
Constitution writers had.
  Naturally, he doesn't see any danger in concentrating power in the 
Presidency because he believes he will use that power very wisely. 
Moreover, he has gone out of his way to identify himself with the 
school of thought that the constitutional separation of powers is an 
outdated barrier to change.
  Last month, President Obama gave a speech in Kansas in which he 
sought to link his agenda to Teddy Roosevelt's famous ``New 
Nationalism'' speech at the same place in 1910. The original speech 
marked the beginning of Roosevelt's break with many of his past 
policies and with the incumbent Republican President, William Howard 
Taft.
  Roosevelt then went on to challenge Taft in the 1912 election, 
heading up the Progressive Party ticket. You know that both Roosevelt 
and Taft lost.
  In that 1910 speech to which President Obama paid tribute, Roosevelt 
described his new nationalism as ``impatient of the impotence which 
springs from overdivision of governmental power.''
  This philosophy seeks to fundamentally transform the United States 
from a nation founded on the principle that protecting the unalienable 
natural rights of each citizen is the paramount goal of government to 
one that empowers an enlightened elite to take whatever actions they 
deem necessary to correct perceived wrongs in society. In other words, 
throw the Constitution out the door. This may start out with very good 
intentions, but there is no guarantee that once our constitutional 
protections are gone, future leaders will always act in the most 
enlightened way. In fact, the single-minded pursuit of a better society 
at the expense of individual rights has led to some of history's worst 
tyrannies.
  Moreover, not only is the concentration of power in the executive 
branch contrary to the founding principles of our Nation, it is foreign 
to the realities of American civic life. With a country as large and as 
diverse as ours, no individual can claim to speak on behalf of all 
Americans. Our constitutional system, based on federalism, separation 
of powers, and checks and balances helps ensure that each American has 
the opportunity to live their life as they see fit.
  I return to the words of James Madison:

       It is of great importance in a republic not only to guard 
     the society against the oppression of its rulers, but to 
     guard one part of society against the injustice of the other 
     part.

  The voices of all Americans deserve to be heard through the elected 
representatives of the people. That is what is at stake. Those of us 
who were elected to represent the people of our States should do just 
that or we deserve not to be here.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. BROWN of Ohio. Mr. President, I want to take 60 or 90 seconds to 
discuss the subject that the Senator from Iowa discussed; that is, the 
appointment of Richard Cordray to the Consumer Protection Bureau. I 
checked with the Senator's story earlier during this move through the 
Banking Committee on which the Presiding Officer sits. Never in history 
has anybody in one party blocked even a vote of a Presidential nominee 
who is admittedly qualified only because they don't like the agency.
  That would be a little like, as Senator Reed from Rhode Island said, 
refusing to confirm an appointee to run the FDA until the Congress 
weakens food safety laws. It runs counter to everything we believe. I 
wasn't insisting that my Senate colleagues all support Richard Cordray, 
former attorney general from Ohio, who is eminently qualified for this 
job. We were saying to just let it come to an up-or-down vote.
  Instead, the minority party filibustered, stopped that, and the 
President had no choice but to act because the agency simply could not 
do its job. Only 2 years ago, this agency was created, this consumer 
bureau, to have a consumer cop on the beat to keep Wall Street banks 
and payday lenders and everybody in between honest. It took 60 votes in 
the Senate, including the Presiding Officer and me, and 58 others, to 
say this agency should be created and the consumer bureau should be in 
effect. That is the history of that.

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