[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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