[Congressional Record Volume 158, Number 15 (Tuesday, January 31, 2012)]
[Senate]
[Pages S179-S180]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. PAUL. Mr. President, I rise today in defense of the Constitution. 
I rise today to condemn the President for making appointments that are 
unconstitutional and illegal. Recently the President appointed members 
to the National Labor Relations Board and to the Consumer Financial 
Protection Agency. He did so by saying we were in recess.
  This is news to us because those of us in the Senate maintain that we 
were never in recess. The President has usurped a power never 
previously taken by a President and has decided unilaterally that he 
gets to decide when we are in recess. These appointments are illegal 
and unconstitutional, and I am surprised--I am surprised--that no 
member of the majority party has stood to tell the President so.
  I am not surprised that the President has engaged in unconstitutional 
behavior. His health care law is brazenly unconstitutional. His war 
with Libya was unconstitutional. He got no congressional authority. So, 
for a man who once gave lip service to the Constitution, the President 
now has become a President who is prone to lawlessness and prone to 
unconstitutional behavior.
  Our Founders clearly intended that the President have the ability and 
the power to appoint advisers, but they also separated that power and 
gave power to the Senate to advise and consent on these high-ranking 
officers in government. The President has gone an end-around on this 
and has done something that breaks with historical precedent. It goes 
against the notion of checks and balances.
  In fact, the notion that underlies the whole idea of recess 
appointments is mostly a historic relic. Alexander Hamilton explained 
in Federalist 67 that the power was included so the Senate did not have 
to remain in session year round to deal with nominations. This was also 
done at a time when Congress would go out of session for months at a 
time for members to return to their farms and their businesses. Now 
Congress meets nearly year round.
  So, in other words, recess appointments should only happen rarely, in 
extreme occurrences, if at all. There also should be agreement that we 
are in recess, and there is no disagreement that we were in recess.
  There is a lot of talk about bipartisan cooperation on the other side 
of the aisle, but I am disappointed that not one Senator has stood to 
tell the President this sets a terrible precedent; that this is a 
usurpation of power that is bad for the country and bad for the idea of 
checks and balances. I am disappointed that not one Senator from the 
other side of the aisle has stood to oppose this President on this 
unconstitutional power grab. This is an opportunity for us to stand 
together in defense of the Constitution.
  I state now, unequivocally, if a Republican President tries to usurp 
his power, if a Republican President tries to define a recess and 
appoint people illegally, I will stand on the Senate floor and oppose 
him. This is not about being a Republican or a Democrat, it is about 
having respect for the Constitution. These lawless, illegal, and 
unconstitutional appointments fly in the face of the respect for our 
Constitution. This is an issue of separation of powers, of 
constitutional authority, and of Senate prerogative. It is sad that not 
one member of the opposition party will stand for the Constitution, 
will stand to the President.
  Make no mistake, this is a huge breach of precedent. If the President 
is allowed to determine when we are in recess, nothing prevents him 
from making recess appointments this evening at 8 o'clock or on the 
weekends. If this precedent is allowed to stand, nothing stops the 
President from appointing a Supreme Court Justice tonight at 8 o'clock. 
Is that the kind of lawlessness we want in our country? Are we going to 
completely abandon the advise-and-consent role of the Constitution and 
of the Senate?
  I ask today, is there not one Senator from across the aisle who will 
stand against this unconstitutional power grab? Is there not one 
Senator from across the aisle who will say to the President that these 
illegal appointments set a terrible precedent; that these appointments 
will encourage lawlessness; that these appointments eviscerate the 
advise-and-consent clause of the Constitution? I ask my colleagues from 
across the aisle: Where is your concern for the checks and balances? 
Where is your concern for the Constitution?
  I am greatly saddened by this action, and I hope the President will 
reverse course. I hope the majority party in

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the Senate will stand for the Constitution. But I am greatly 
disappointed in where we are in this debate.
  I yield back my time.
  The PRESIDING OFFICER. The Senator from Nevada.

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