[Congressional Record Volume 160, Number 101 (Thursday, June 26, 2014)]
[Senate]
[Pages S4136-S4137]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           ADVICE AND CONSENT

  Mr. HATCH. Madam President, I rise to commend the holding of the 
Supreme Court's decision this morning in NLRB vs. Noel Canning. The 
Court's decision is a critical victory for the principle that we are a 
nation of laws, not of men. It is a vindication of the fundamental 
notion that the Constitution binds us all, including even the 
President, and it is a triumph for the rightful prerogatives of this 
institution, the U.S. Senate, the authority of which has been under 
siege throughout the Obama years.
  One of the most important powers endowed in this body by the 
Constitution is the requirement that nominations of principal officers 
receive the advice and consent of the Senate. The confirmation process 
provides Members of the Senate with a wide range of tools--up to and 
including outright refusal to confirm a nominee--in order to influence 
the proper execution of the laws we pass. When aggregated, these tools 
amount to a critical check on the workings of the executive branch.
  The Senate's advice and consent rule did not rise from accident--far 
from it. As the Supreme Court has explained, quoting the famed 
historian Gordon Wood, ``The manipulation of official appointments had 
long been one of the American revolutionary generation's greatest 
grievances against executive power, because the power of appointment to 
offices was deemed the most insidious and powerful weapon of 18th 
century despotism.''
  The Founders' worry about the dangers of the Executive appointment 
power should ring true today given many of the Obama administration's 
actions, including a radical set of National Labor Relations Board 
nominees who promised to tip the balance of the Board toward an extreme 
and divisive agenda, hurting both employers and employees, and a 
Consumer Financial Protection Bureau Director nominee poised to 
exercise unprecedented and unchecked power thanks to the dangerous 
provisions of Dodd-Frank--no checks on his removal, no congressional 
control over his budget, and no effective judicial review. These are 
exactly the sorts of circumstances that motivated the Founders' 
concerns about an unchecked appointment power in the Executive. They 
are the very reasons the Presidential nominees must obtain the Senate's 
consent before taking office.
  The only exception to this body's power to decline its consent to a 
nomination is the President's power ``to fill up all Vacancies that may 
happen during the Recess of the Senate, by granting Commissions which 
shall expire at the End of their next Session.'' But the President's 
power to make recess appointments is wholly contingent on what the 
Constitution terms ``the Recess of the Senate'' actually occurring, and 
the power to decide when that happens rests squarely with the 
legislative branch.
  This is the obvious consequence of the Senate's constitutional 
power--conferred in article I, section 5--to determine the rules of its 
proceedings. And it is well supported by longstanding practice and 
precedent, acknowledged by the executive branch going as far back as 
1790. Consider what would happen if the President could unilaterally 
determine when the recess of the Senate occurs. With no check on the 
President's discretion to declare the Senate in recess, he could employ 
the recess appointment power whenever the Senate refused to give 
immediate and unencumbered consent to his or her nominees. The advice-
and-consent process would become a dead letter. The exception would 
swallow the rule, and the Senate would be deprived of a central tool 
our Nation's Founders specifically conferred to prevent Executive 
mischief.
  The Founders realized the severity of this threat. They had fought 
royal abuses of the appointment power, asserting in the Declaration of 
Independence how the King's government had ``erected a multitude of new 
offices, and sent hither swarms of officers to harass our people, and 
eat out their substance.'' As Hamilton explained in Federalist 69, 
``They deliberately chose not to give the President the King's often-
abused power to discontinue a session of the legislature.''
  So concerned were the Framers with the legislature's power to control 
its own sittings that the Constitution gave each House the power to 
prevent the other from adjourning for more than 3 days. In essence, the 
Senate and the House of Representatives both have the power to prevent 
the recess of the Senate and thereby avoid the activation of the 
President's recess appointment power.
  So when the Senate was confronted by the prospect of an out-of-
control National Labor Relations Board and an unchecked Consumer 
Financial Protection Bureau led by President Obama's appointees, we 
were facing threats that our Founders had themselves faced and for 
which they had specifically provided us with the tools to resist. When 
we refused to act as quickly as the administration wanted and merely 
rubberstamp these nominees, we acted exactly as the Constitution's 
Framers had intended. And the House of Representatives wisely refused 
to consent to a recess of the annual session of the Senate, thereby 
refusing to grant the President authority to make lawful recess 
appointments.

  I don't relish rejecting nominees--quite the contrary. Over the past 
38 years, I have voted for the vast majority of nominees from each of 
the six Presidents under whom I have served and with whom I have served 
alongside, including President Obama. But scrutinizing the President's 
nominees and occasionally withholding consent when circumstances 
warrant represents Congress fulfilling, not abdicating, its 
constitutional responsibilities.
  So when faced with our legitimate and lawful use of the powers 
endowed in the legislative branch by the Constitution, what did the 
Obama administration do? Did it seek to accommodate our concerns about 
the unconstitutional structure and unprecedented powers of the CFPB? 
Did the President seek to help develop a compromise package of the NLRB 
nominees, as Ted Kennedy and I always did? Sadly, no. Instead, 
President Obama simply proclaimed that he ``wouldn't take no for an 
answer'' despite what the Constitution may say. He chose instead to 
use--or rather abuse--the recess appointment power to install these 
four nominees, including two who had been nominated only 2 weeks 
before--hardly long enough for the Senate to vet them thoroughly. But, 
of course, we were not in ``the Recess of the Senate'' that the 
Constitution requires to activate the recess appointment power. Even 
the Solicitor General admitted that a 3-day adjournment was too short 
to allow the President to bypass the Senate lawfully.
  Instead, President Obama audaciously claimed the power to decide for 
himself when the Senate was in recess and determined that in his 
personal opinion, our so-called pro forma sessions during this period 
did not really count as sessions of the Senate, at least for the 
purposes of the Constitution's requirements.
  But during these sessions the Senate was fully capable of engaging in 
its business. Indeed, during a similar session the previous fall, the 
Senate twice passed legislation that President Obama himself signed. We 
have also used these sessions to appoint conferees, to read calendar 
bills, and to engage in other such activity characteristic of the 
Senate operating in session. While the Senate planned to conduct no 
subsequent business under a unanimous consent agreement, even the Obama 
administration admitted

[[Page S4137]]

that there was a possibility that we might decide otherwise. Whether 
the Senate chooses to conduct business has no relevance here. Instead, 
it is the ability of the Senate to conduct business if it so chooses 
that matters.
  Faced with this reality, the Obama administration even argued that 
the Senate, by refusing to adjourn for more than 3 days, could not deny 
the President his recess appointment power--as if he was owed the 
opportunity to use this power.
  This argument turns basic structure of Presidential appointments on 
its head, as if our advice-and-consent role were merely an 
inconvenience to be avoided rather than the organizing principle of how 
the entire constitutional process is designed to work. The Constitution 
does not create in the President an endlessly flexible power to bypass 
Congress when he disagrees with us. In fact, it does exactly the 
opposite: It vests in Congress both the power and the responsibility to 
resist a President's ill-advised policies and Executive overreach.
  The actions and arguments advanced by the Obama administration 
represent a direct assault on the Constitution's division of powers 
between the different branches. This brazen power grab takes President 
Obama's already audacious overreach to a new level.
  I applaud the Supreme Court's willingness to fulfill its 
constitutional obligations and check this abuse of power by the White 
House. While I agree most with the reasoning of Justice Scalia's 
concurrence, which respects the fixed and discernible meaning of the 
Constitution's text and its controlling power, the unanimous nature of 
this decision reflects just how egregious the President's action was.
  But those of us who care about checking the Obama administration's 
overreach cannot place our faith in the courts alone, although they 
must play an important role. Too often this administration has been 
crafty in implementing its breaches of the law to avoid judicial 
review, frequently structuring its overreach to prevent any plaintiff 
from having any legal standing to sue in court. This White House has 
even used its role in the legislative process to advance provisions 
that eliminate the potential for judicial review, as it did in Dodd-
Frank. And when the courts have found legitimate occasion to scrutinize 
President Obama's overreach, the administration has often fought to 
keep litigants out of court, as in the Fast and Furious litigation.
  Perhaps most disturbing is what happened with the DC Circuit, the 
second most important court in the land that oversees our massive 
regulatory state, the court that originally held the President's 
appointments unconstitutional. When the DC Circuit tried to hold the 
Obama administration accountable to the law and the Constitution, 
President Obama and his allies sought--in their own words--to ``switch 
the majority'' on the court and to ``fill up the D.C. Circuit one way 
or another.''
  In the rush to eliminate any possible judicial obstacle to 
accountability by packing the DC Circuit, the Obama administration ran 
roughshod over the rules and traditions of this body by blowing up the 
filibuster. Whether through unilaterally changing the Senate rules or 
abusing the recess appointment power, the President and his allies have 
demonstrated a willingness to work untold and permanent damage to the 
institutions of this great body and to our constitutional system 
itself.
  With such a powerful and aggressive President, no single institution 
can restore the constitutional checks on President Obama's often 
lawless exercise of power. Restoring constitutional government will 
require great effort by all of us: The courts, the Congress, and most 
importantly the voting public. That is why it is essential for my 
colleagues on both sides of the aisle to stand and defend the 
institutional prerogatives of the Senate. That is every Senator's sworn 
duty under the Constitution.
  Many of my colleagues--even those with whom I rarely agree--have the 
potential to be great Senators, worthy stewards of this institution, 
zealous guardians of its prerogatives and true defenders of its role in 
our constitutional system of government.
  Sadly, whether blinded by partisan loyalty to the President or too 
inexperienced to understand the Senate from any other perspective than 
having a like-minded Senate majority and President, my colleagues on 
the other side of the aisle have allowed--even facilitated--this 
administration's attempts to break down the constitutional checks on 
Executive power. Bob Byrd must be rolling over in his grave. He would 
never allow the Senate's power to be as diluted and dissipated as it 
has been during this Presidency. He would have stood up to them. He 
would have taken the Senate's prerogatives and made them very clear to 
this President and anybody else who tried to invade the Senate's 
prerogatives--and I might add constitutional prerogatives at that.
  We must all realize what is at stake. This is not some petty turf 
war. As Madison warned in Federalist 47, ``The accumulation of all 
powers, legislative, executive, and judiciary, in the same hands, 
whether of one, a few, or many, and whether hereditary, self-appointed, 
or elective, may justly be pronounced the very definition of tyranny.''
  To disregard this central principle of constitutional government is 
to abolish the barriers protecting us from arbitrary government action 
and to undermine the rule of law.
  We in the Congress should make no apology for protecting the legal 
prerogatives of the body in which we serve, for as Madison counseled in 
Federalist 51: ``[t]he great security against a gradual concentration 
of the several powers in the same department consists of giving to 
those who administer each department the necessary constitutional means 
and personal motives to resist encroachments of the others.''
  If this body--and constitutional government generally--are to 
maintain a meaningful role in preserving liberty, we must all realize 
the importance of connecting the President's unlawful and illegitimate 
attempts to assert power. We must use the rightful and legitimate 
constitutional authorities that the Founders gave us to stand and fight 
back.
  This is important. This is not just a battle between the two sides. 
This is not just an itty-bitty, little problem. This is one that has 
thwarted the intentions of the Founders to have three separated powers, 
each with its own duties and responsibilities, not infringed by the 
other powers that disregard the duties and responsibilities of the 
legislative branch.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. The assistant 
legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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