[Congressional Record Volume 158, Number 17 (Thursday, February 2, 2012)]
[Senate]
[Pages S315-S318]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. HATCH. Madam President, our Nation faces grave challenges. We are 
looking at our fourth straight $1 trillion deficit, our credit rating 
has been downgraded, and public spending is out of control. The Nation 
demands leadership.
  At some moments in our Nation's history--at moments of crisis--
leaders have emerged, put partisanship aside, and worked to solve our 
greatest challenges. Although our current President has compared 
himself to both Franklin Roosevelt and Abraham Lincoln, his leadership 
is falling well short of their examples. Instead of taking the reins

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and making tough choices when presented with our current fiscal crisis, 
he has decided to put politics first. He always puts politics first.
  Just this morning, at the National Prayer Breakfast, the President 
took what has always been a nonpartisan opportunity for national unity 
and used it to promote his political agenda. He suggested to the 
attendees that Jesus would have supported his latest tax-the-rich 
scheme. With due respect to the President, he ought to stick to public 
policy. I think most Americans would agree the Gospels are concerned 
with weightier matters than effective tax rates.
  As long as the President has decided to assume the role of 
theologian-in-chief, he would do well to put tax policy aside and 
consider the impact of one of his latest ObamaCare mandates. Secretary 
Sebelius's decision to force religious institutions--over the strong 
objections of churches and universities representing millions and 
millions of Americans--to provide insurance coverage for abortifacient 
drugs and contraceptives to their employees will require these groups 
to violate their deepest held religious beliefs.
  The President's comments this morning share more of a political 
strategy than they do the religious beliefs of most Americans. In 2008, 
the President declared his nomination was the world historical moment 
when the rise of the oceans began to slow and our planet began to heal. 
Someone needs to remind the President there was only one person who 
walked on water, and he did not occupy the Oval Office.
  This drive to politicize every aspect of our institutions and public 
discourse took a serious and dangerous turn last month with the 
President's appointments to the Consumer Financial Protection Bureau--
the CFPB--and to the National Labor Relations Board--the NLRB. Last 
week, in his State of the Union Address, President Obama said Americans 
deserve a government that plays by the rules. Yet his appointments of 
January 4, just 1 day into a 3-day Senate recess, failed to meet his 
own standard.
  Those unlawful appointments are the latest example of how he is 
willing even to undermine the Constitution and weaken our government 
institutions to get what he wants. They are a deeply cynical political 
ploy that puts his own ideological wants and electoral needs above our 
Constitution and rule of law.
  The Constitution, not the President's political agenda or reelection 
strategy, sets the rules we must live by and play by. In the regular 
order of the appointment process, the President nominates, but the 
Senate must consent for him to appoint. The President may not get his 
way every time, but this is one of many checks and balances in our 
system to make sure one part of the government does not gather too much 
power.
  The Constitution also allows the President temporarily to fill 
``vacancies that may happen during the recess of the Senate.'' These 
so-called recess appointments do not require Senate consent. However, 
they are supposed to be an exception to the confirmation rule. The most 
obvious requirement for a recess appointment is that there actually be 
a real recess. Needless to say, if the President alone can define a 
recess, he can make recess appointments during every weekend or lunch 
break. The exception would swallow the rule and the President could 
issue the Senate out of the process all together.
  Our Constitution refers to the recess of the Senate, not to a recess 
of the President's imagination or his lawyers' creation. Under the 
Constitution, the Senate has the authority to determine its own 
procedural rules, including the what, when, and how long of Senate 
recesses.
  I will not go into all the twists and turns of recess appointment 
history. However, for decades, the standard has been that a recess must 
be longer than 3 days for the President to make a recess appointment. 
The Constitution, for example, requires the consent of the House or 
Senate for the other body to adjourn for more than 3 days. The 
Congressional Directory, which is the official directory of Congress, 
defines a recess as ``a break in House or Senate proceedings of three 
or more days, excluding Sundays.'' The Senate's own Web site has the 
same definition.
  The Clinton administration argued in 1993 that a recess must be 
longer than 3 days. The Clinton administration took that position. In 
2010, the Obama administration's own Deputy Solicitor General said this 
to Chief Justice John Roberts when arguing before the Supreme Court: 
``Our office has opined the recess has to be longer than three days.''
  Let me repeat that. The Obama administration told the Supreme Court a 
recess must be longer than 3 days for the President to make a recess 
appointment.
  The Democratic majority in this body has endorsed this same standard. 
On November 16, 2007, the majority leader said: ``The Senate will be 
coming in for pro forma situations during the Thanksgiving holiday to 
prevent recess appointments.''
  The four brief sessions he scheduled chopped the Thanksgiving break 
into recesses of--you guessed it--3 days or less and so did the five 
sessions he scheduled during the Christmas break. This new tactic 
worked, and President Bush did not make another recess appointment for 
the rest of his Presidency.
  There is no record that then-Senator Barack Obama objected to this 
tactic in any way. He did not criticize it as a gimmick. He did not 
opine that the President could still make recess appointments despite 
these pro forma sessions. He did not even suggest that pro forma 
sessions did anything other than create new, shorter recesses. That is, 
after all, the only way the pro forma sessions can block recess 
appointments.
  As far as I can tell, Senator Obama fully supported his party using 
pro forma sessions to block recess appointments.
  Finally, consider this. Our rule XXXI requires that pending 
nominations be sent back to the President whenever the Senate ``shall 
adjourn or take a recess for more than 30 days.'' Pursuing his strategy 
to prevent appointments during the August 2008 recess, the Democratic 
majority leader scheduled no less than 10 pro forma sessions during 
that period. As a result, because each pro forma session began a new 
recess of less than 30 days, the Senate executive clerk did not return 
any pending nominations to the President.
  The standard here is clear: Pro forma sessions create new recesses. 
Read the Congressional Record. Each pro forma session begins with the 
words ``The Senate met'' and ends with the statement that ``The Senate 
stands in recess'' until a specific date and time. I don't know how 
much clearer it could possibly be. The Senate must adjourn for more 
than 3 days for a President to make a recess appointment. The Senate 
has endorsed this standard. The Democratic majority has endorsed this 
standard, Senator Barack Obama endorsed this standard, and President 
Barack Obama's administration has endorsed this standard. A new recess 
begins when a Senate session, even a pro forma session, ends.
  But that was then; this is now. The Senate met on January 3, 2012, as 
the Constitution requires, to convene the second session of the 112th 
Congress. The Congressional Record states that the Senate adjourned at 
12:02 until January 6, at 11 a.m. I know we see some fuzzy math here in 
Washington from time to time, but this is pretty simple. That was a 3-
day recess, which was not long enough to allow a recess appointment.
  The very next day, however, President Obama installed Richard Cordray 
as head of the Consumer Financial Protection Bureau and he also 
installed three members of the National Labor Relations Board. These 
appointments were clearly unlawful because a sufficient recess did not 
exist. These appointments violated the standard President Obama himself 
endorsed when he served in this body, and they violated the standard 
his own administration endorsed before the Supreme Court.
  Senate Democrats routinely attacked President George W. Bush for 
supposedly creating what they called an imperial Presidency. That 
criticism was bogus for a host of reasons, but I can only imagine how 
the majority would have howled had President Bush made recess 
appointments the day after those pro forma sessions in 2007 and 2008. 
They would have denounced him for defying the Senate, for an 
unprecedented power grab, and for destroying the checks and balances 
that

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are so important in our form of government. They would have taken swift 
and firm measures in retaliation. Who knows, but they might even have 
gone to the Court over it. But President Bush respected the Senate and, 
whether he liked it or not, declined to make recess appointments when 
there was no legitimate recess.
  President Obama apparently has no such regard for this body--one of 
which he was honored to be a Member. And to be clear, that means he has 
no such regard for the Constitution and its system of checks and 
balances. He only wants his way. His political mantra last fall, that 
he can't wait for Congress to enact his agenda, has now resulted in 
these politicized appointments that violate our deepest constitutional 
principles.
  No doubt some on the other side of the aisle will respond that the 
Office of Legal Counsel at the Department of Justice has issued a memo 
justifying these recess appointments. Well, as Paul Harvey used to say, 
Here is the rest of the story. That memo was issued on January 6--2 
days after President Obama made these unlawful recess appointments. I 
had understood OLC's rule as giving objective advice before decisions 
were made. Doing this after the fact looks as if it is a method of 
trying to justify, rather than inform, this controversial decision, 
especially when the memo admits that it addresses a novel issue with 
``substantial arguments on each side.''
  The most egregious flaw in the OLC memo is that it addresses the 
wrong question. The question OLC should have answered is why a pro 
forma session, like any other session, does not start a new recess. 
That is the real question here. OLC simply ignored that question 
entirely. And I am not at all surprised. The obvious answer is that a 
pro forma session does begin a new recess, and then OLC would have had 
to justify the President making a recess appointment during an 
unprecedented 3-day recess.
  Rather than address that necessary question, the OLC memo instead 
addressed whether the President may make recess appointments during a 
longer recess that is ``punctuated by periodic pro forma sessions.'' I 
wish to know who made up this characterization of pro forma sessions as 
merely procedural punctuation marks, but a cliche like that is no 
substitute for a real legal argument.
  If that is the most egregious flaw in the OLC memo, its most 
egregious omission might be failing even to mention, let alone explain 
away, the Obama administration's endorsement of the 3-day standard 
before the Supreme Court.
  In 1996, the Clinton Office of Legal Counsel advised that making 
appointments during a 10-day recess would ``pose significant litigation 
risks.'' In this new memo, the Obama OLC admits that these appointments 
during only a 3-day recess ``creates some litigation risks.'' They 
admit that. The memo of course does not attempt to explain how 
appointments during an even shorter recess somehow pose less litigation 
risks. Either way, litigation may be where this controversy is headed. 
And I certainly hope so.
  Just as our Democratic colleagues accused President Bush of creating 
an imperial Presidency, they accused his administration's Office of 
Legal Counsel of helping him to do it. They attacked OLC for being his 
advocate rather than an objective neutral adviser. Well, nothing OLC 
did for President Bush looked anything like what we see today. This 
memo reads like a brief by the President's personal lawyer. We all know 
Justice Department lawyers are not the President's personal lawyers.
  When President Obama decided to make these appointments, the person 
who should have been the most outraged was the Senate majority leader. 
After all, as the highest ranking officer in the Chamber, he should 
have been particularly defensive of the rights and prerogatives of the 
Senate, and should have opposed any effort on the part of the Executive 
to undermine the Senate's role in the confirmation process.
  Unfortunately, that is not what happened. Since the time the 
appointments were made, the Senate majority leader has, on multiple 
occasions, publicly endorsed the President's decision to ignore 
precedent and bypass the Senate. He did so on television in mid-January 
and again this week here on this floor. The majority leader's decision 
to support and, indeed, applaud the President in this case is 
troubling, given that, as I mentioned a few minutes ago, it was under 
his leadership that the Senate began to use pro forma sessions for the 
specific purpose of preventing President Bush from making recess 
appointments.

  The majority leader has acknowledged this to some extent, but his 
explanation as to why he is taking these apparently contradictory 
positions is unclear and somewhat hard to follow. We need a better 
explanation from the majority leader, because from the vantage point of 
many here in the Chamber it appears that his position on the efficacy 
of pro forma sessions and the constitutionality of recess appointments 
varies depending upon who is occupying the White House. No leader in 
this body should ignore this question. And, frankly, our leaders should 
be standing for the Senate against the White House on this matter.
  Well, I hope that it isn't true that the constitutionality of recess 
appointments varies depending on who is occupying the White House. I 
hope I have simply misinterpreted what appears to be plain statements, 
both past and present, on the part of the majority leader. That is why 
I, along with 33 of my colleagues, have submitted a letter to the 
majority leader asking him to clarify his position on these 
appointments. Specifically, the letter asks him to state whether he 
believes the pro forma sessions have any impact on the President's 
recess appointment power.
  It also asks him to clarify whether he believes President Bush had 
the constitutional authority to make recess appointments like the ones 
recently made by President Obama and why, if he believes these recent 
appointments are constitutional, he instituted the practice of using 
pro forma sessions in the first place. Why did he do that?
  Finally, the letter asks the majority leader to state specifically 
whether he agrees with the President's legal argument that the Senate 
was unavailable to perform its advice and consent functions during the 
recent adjournment period.
  I ask unanimous consent to have printed in the Record a copy of the 
letter, signed by 33 Senators.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


                                                  U.S. Senate,

                                 Washington, DC, February 2, 2012.
     Hon. Harry Reid,
     Senate Majority Leader,
     U.S. Senate, Washington, DC.
       Dear Majority Leader Reid: In light of President Obama's 
     recent decision to break with precedent regarding the use of 
     recess appointments, we are writing to inquire about your 
     views on the matter so as to clear up what appear to be 
     serious inconsistencies on your part. We hope you will 
     provide a complete and candid response.
       On January 4, 2012, the President announced his intent to 
     recess appoint Richard Griffin, Sharon Block, and Terence 
     Flynn to serve on the National Labor Relations Board (NLRB) 
     and Richard Cordray to serve as head of the Consumer 
     Financial Protection Bureau (CFPB). Pursuant to a Unanimous 
     Consent agreement, the Senate was to go into pro forma 
     session every three days between December 17, 2011 and 
     January 23, 2012. However, the President, in a controversial 
     turn of events, determined that the Senate's use of periodic 
     pro forma sessions was insufficient to prevent him from 
     exercising his recess appointment power under Article II of 
     the Constitution.
       As you are surely aware, it was under your leadership that 
     the Senate first began to use pro forma sessions in order to 
     prevent President George W. Bush from making recess 
     appointments beginning in November 2007. With very few 
     exceptions, this became the standard practice for the Senate 
     during the rest of President Bush's term in office, during 
     which time no recess appointments were made. And, though you 
     discontinued this practice when President Obama first took 
     office, the procedure was reinstituted last year.
       Furthermore, in deciding whether to make these 
     appointments, the President reportedly relied on the opinion 
     of the Office of Legal Counsel which argued that, because no 
     business was to be conducted during the scheduled pro forma 
     sessions, the President could consider the Senate unavailable 
     to provide advice and consent and exercise his power to make 
     recess appointments. Yet, on December 23, 2011, one of the 
     days scheduled for a pro forma session, you, yourself, went 
     to the floor and conducted business to provide for the Senate 
     passage of the Temporary Payroll Tax Cut Continuation Act of 
     2011 (H.R. 3765), clearly undermining any claim that the 
     Senate is unavailable to perform its duties during a pro 
     forma session.

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       However, despite the fact that you were indisputably the 
     author of what became the routine use pro forma sessions to 
     prevent recess appointments and even though you are obviously 
     well aware that the Senate is able to conduct significant 
     business during a scheduled pro forma session, you have, on 
     multiple occasions, publicly expressed your support for 
     President Obama's efforts to bypass the Senate with regard to 
     these nominations. For example, while appearing on the 
     January 15, 2012 edition of ``Meet the Press,'' you stated 
     unequivocally that the President ``did the right thing'' in 
     making these appointments. And, while you did acknowledge in 
     the interview that it was you who established the procedure 
     of using pro forma sessions, you also stated that ``President 
     Bush didn't have to worry about recess appointments because 
     [you] were working with him,'' and that ``[you] believed 
     then, [you] believe now, that a president has a right to make 
     appointments.'' You made similar arguments this week on the 
     Senate floor.
       This purported explanation directly contradicts remarks you 
     made on the Senate floor during the Bush Administration 
     wherein you explicitly indicated that the purpose of the pro 
     forma sessions was to prevent President Bush from making 
     recess appointments. On November 16, 2007, you stated that 
     ``the Senate would be coming in for pro forma sessions during 
     the Thanksgiving Holiday to prevent recess appointments,'' 
     and that you had made the decision to do so because ``the 
     administration informed [you] that they would make several 
     recess appointments.'' On December 19, 2007, you stated that 
     ``we are going into pro forma sessions so the President 
     cannot appoint people we think are objectionable. . .'' After 
     reading these statements, it is clear that, under the Bush 
     Administration, you believed that the use of pro forma 
     sessions was sufficient to prevent the President from making 
     recess appointments and that the practice was undertaken 
     specifically because you were unable to reach an agreement 
     with the President regarding specific nominees.
       This apparent shift in your position raises a number of 
     concerns. Most specifically, it appears that you believe the 
     importance of preserving Senate's constitutional role in the 
     nomination and appointment process varies depending on the 
     political party of the President. Because we hope that this 
     is not the case and because we hope that you, as the Senate 
     Majority Leader, have taken seriously your responsibility to 
     protect and defend the rights of this chamber, we hope you 
     will answer the following clarifying questions:
       1. In your view, what specific limitations does the 
     Senate's use of pro forma sessions place on the President's 
     power to make recess appointments under the Constitution?
       2. Would it have been constitutional, in your view, for 
     President Bush to have made recess appointments during the 
     time the Senate, under your leadership, was using pro forma 
     sessions? If so, for what purpose did you establish the 
     practice of using pro forma sessions in the first place? If 
     not, why do you now believe it is constitutional for 
     President Obama to make recess appointments under similar 
     circumstances?
       3. In your view, did the Senate's passage of the Temporary 
     Payroll Tax Cut Continuation Act of 2011 comply with the 
     constitutional requirements for the passage of legislation?
       If so, do you disagree with the President's argument that 
     the Senate was ``unavailable'' to perform its advice and 
     consent duties during the recent adjournment?
       Needless to say, these are very serious matters. While 
     there are many issues that divide the two parties in the 
     Senate, including the very appointments at issue here, we 
     hope that you share our view that neither party should 
     undermine the constitutional authority of the Senate in order 
     to serve a political objective.
       Thank you for your attention regarding this matter.
           Sincerely,
         Orrin Hatch, Jim DeMint, Ron Johnson, Mike Johanns, John 
           Cornyn, Marco Rubio, Rand Paul, Mike Lee, Michael B. 
           Enzi, John Boozman, Pat Roberts, Chuck Grassley, John 
           Hoeven, Roger Wicker, Pat Toomey, Dan Coats. Rob 
           Portman, Mike Crapo, Scott Brown, Jeff Sessions, Dick 
           Lugar, Lindsey Graham, Jerry Moran, Kelly Ayotte, James 
           Risch, David Vitter, Saxby Chambliss, John Thune, John 
           McCain, John Barrasso, Richard Burr, Thad Cochran, Roy 
           Blunt, Johnny Isakson.

  Mr. HATCH. These so-called recess appointments were unlawful because 
there was no legitimate recess in which they could be made.
  There are many disagreements about policy and political issues. That 
is to be expected. But the integrity of our system of government 
requires that even the President must, as he said in the State of the 
Union Address, play by the rules. President Obama broke the rules in 
order to install the individuals he wanted. That action weakened the 
Constitution, our system of checks and balances, as well as both the 
Senate and the Presidency.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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