[Congressional Record Volume 158, Number 27 (Friday, February 17, 2012)]
[Senate]
[Page S898]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. LEE. Mr. President, on January 4, 2012, President Obama bypassed 
the Senate's constitutional right to advise and consent to nominees 
and, instead, unilaterally made appointments to the Consumer Financial 
Protection Bureau and to the National Labor Relations Board. He 
purported to do so under the Constitution's recess appointments clause, 
even though at the time of the appointments the Senate was holding pro 
forma sessions roughly every 72 hours.
  If allowed to stand, President Obama's unprecedented and 
unconstitutional recess appointments could result in Presidents of both 
parties routinely circumventing the Senate's advice-and-consent 
function and thus depriving the people and the people's representatives 
of an essential check on the executive branch.
  President Obama's actions also violate the Constitution's fundamental 
system of separation of powers. He has asserted the unilateral power to 
override Congress's own determination of when it is in session and when 
it is in recess. At an absolute minimum, the Senate's institutional 
prerogatives demand that we be allowed to make our own rules. Yet 
President Obama's actions would deprive our body of even that basic 
right.
  In the past, I have given pretty broad deference to the President's 
judicial nominees. Both in the Judiciary Committee and on the floor of 
the Senate, I have voted in favor of the vast majority of President 
Obama's nominees, including many with whom I have fundamental 
disagreements on various points.
  But I can do so no more. The Founders expected that each branch of 
the Federal Government would exercise the necessary constitutional 
means to resist any encroachments by the other branches. Among those 
constitutional means is the Senate's advice-and-consent function, which 
I exercised today by voting against a nominee who otherwise might have 
received my support. Thirty-three other Senators did exactly the same.
  The President cannot expect the Senate's full cooperation at the same 
time he does violence to this body's constitutional prerogatives. The 
threshold for confirming President Obama's nominees must change 
accordingly. Simply put, there is a new standard for confirmations as a 
result of the President's own actions. I find this unfortunate but 
ultimately necessary.
  Both today and in the coming days, I will join with other Senators to 
act as a check and a balance on the President's unconstitutional 
conduct by voting against some nominees. I expect that many of my 
Republican colleagues, and in time some of our Democratic counterparts, 
will rise in defense of the Constitution and vote against President 
Obama's nominees until such time as he takes actions to restore the 
Senate's full constitutional right to advise and consent to his 
nominations.

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