[Congressional Record (Bound Edition), Volume 158 (2012), Part 1]
[Senate]
[Pages 369-370]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. LEE. Madam President, in defense of the Constitution, I stand 
against an action taken recently by our Chief Executive. President 
Obama's January 4, 2012, appointments to the Consumer Financial 
Protection Bureau and to the National Labor Relations Board are 
different in kind than previous recess appointments made by Presidents 
of the United States made by both political parties. These four 
appointments are unconstitutional because they did not, as required by 
article II, section 2, receive the ``advice and consent'' of the 
Senate, even though such advice and consent was necessary under the 
circumstances.
  President Obama has asserted that the appointments are constitutional 
under the recess appointments clause. That clause provides that the 
President may ``fill up all Vacancies that may happen during the Recess 
of the Senate.'' That clause does not apply here, however, because the 
Senate was not in recess when President Obama made the appointments in 
question.
  In making these appointments, the President did not state that he 
believes an intrasession adjournment of less than 3 days constitutes a 
recess, and there can be little dispute that such a brief adjournment 
as occurred between January 3, 2012, when the second session of the 
112th Congress officially began, and January 6, 2012, when the next pro 
forma session of the Senate occurred, does not, in fact, constitute a 
recess for purposes of the recess appointments clause.
  The Department of Justice has consistently maintained that an 
intrasession adjournment must be longer than 3 days to constitute such 
a recess. The text of the Constitution evidences that the Framers did 
not consider an adjournment of less than 3 days to be constitutionally 
significant. Indeed, in article I, section 5, we read that ``neither 
House, during the Session of Congress, shall, without the Consent of 
the other, adjourn for more than three days.''
  Now, at the time these appointments--the appointments in question--
were made, the Senate had not received consent from the House of 
Representatives to adjourn for a period of time of more than 3 days. If 
an intrasession adjournment of less than 3 days were to be considered 
constitutionally sufficient for the President to exercise his recess 
appointment power, it is unclear what, if anything, might prevent the 
President from routinely bypassing the Constitution's advice-and-
consent requirement and appointing nominees during even weekend 
adjournments.
  The Department of Justice's Office of Legal Counsel asserts that the 
President may unilaterally conclude that the Senate's brief pro forma 
sessions do not constitute sessions of the Senate for purposes of the 
recess appointments clause. But this assertion is deeply flawed. It is 
for the Senate and not for the President of the United States to 
determine when the Senate is in session. The Constitution expressly 
grants the Senate the power to determine the rules of its own 
proceedings.
  Granting the President unilateral power to override the Senate's 
determination of when it is in session would undermine the 
constitutional prerogative and violate the Constitution's fundamental 
principles of separation of powers.
  The OLC memorandum on which the President relies asserts that the 
``touchstone'' for determining when the Senate is in session is ``its 
practical effect: viz. whether or not the Senate is capable of 
exercising its constitutional function of advising and consenting to 
executive nominations.'' This analysis contradicts the text and the 
original understanding of the recess appointments clause.
  The purpose of that clause, we read in Federalist No. 67 which was 
authored by Alexander Hamilton, was to avoid obliging the Senate ``to 
be continually in session for the appointment of officers.'' Nothing in 
either the Constitution's text or in the debate surrounding the recess 
appointment clause suggests in any way that the President should have 
the unilateral power to appoint officers and judges at times when the 
Senate is regularly meeting, even if that body is not conducting 
substantial business.
  In addition, the OLC memorandum's functionalist argument fails on its 
own terms. During the Senate's pro forma sessions, including its 
session on January 6, 2012, the Senate was manifestly capable of 
exercising its constitutional function of advice and consent. Notably, 
at one such pro forma session on December 23, 2011, the Senate passed a 
significant piece of legislation demonstrating that it is, in fact, 
capable of conducting business--meaningful business--at such sessions.
  But regardless of how much business the Senate conducts during pro 
forma sessions or how much business it indicates in statements that it 
intends to conduct in advance of such sessions, the Senate has been and 
continues to be capable of conducting business at such sessions--
including advising and consenting as to nominations for the President 
should it decide to do so.
  OLC's argument boils down to an untenable assertion that because the 
Senate has chosen not to act on the President's nominations during its 
sessions, it was incapable of doing so.
  Finally, OLC's assertion that pro forma sessions are not cognizable 
for purposes of the recess appointments clause violates established 
constitutional practice and tradition. The Constitution provides that 
``[n]either House, during the session of Congress, shall, without the 
consent of the other, adjourn for more than three days,'' and that 
``unless [Congress] shall by law appoint a different day,'' Congress 
shall begin each annual session by meeting ``at noon on the 3d day of 
January.''
  The Senate has commonly and without objection used pro forma sessions 
to fulfill both constitutional requirements, evidencing a past 
consensus

[[Page 370]]

that such sessions are of constitutional significance. President 
Obama's novel assertion that such sessions no longer count for purposes 
of the recess appointments clause thus upsets precedent and creates an 
internal contradiction in the treatment of Senate sessions for purposes 
of the Constitution.
  President Obama's January 4, 2012, appointments to the CFPB and the 
NLRB are unconstitutional. As duly sworn Senators, we each have an 
institutional and a constitutional duty to preserve and defend the 
prerogatives of the Senate, particularly from the encroachments of the 
Executive. The President's unconstitutional appointments simply cannot 
stand.
  Throughout my time as a member of the Judiciary Committee, I have 
made it a point to work collaboratively with Members from across the 
aisle, and I have also gone out of my way to cooperate with the current 
administration to ensure that the overwhelming majority of the 
President's nominees to judicial and other positions are considered and 
receive a vote. Both in the Judiciary Committee and on the floor I 
voted for dozens of nominees with whom I fundamentally disagreed on 
various issues simply because they were nominated by a President who 
was duly elected by the people. But I will do so no more.
  My concerns, to be clear, are nonpartisan, and I will be equally 
critical of any Republican President who might attempt to make recess 
appointments under the same deeply flawed legal theory. Given this 
President's blatant and egregious disregard for proper constitutional 
procedures and for the Senate's unquestioned role in such appointments, 
I find myself duty-bound to resist the consideration and approval of 
additional nominations until the President takes steps to remedy the 
situation.
  Regardless of what precise course I choose to pursue, the President 
certainly will not continue to enjoy my nearly complete cooperation 
unless and until he rescinds his unconstitutional recess appointments.
  Thank you, Madam Chair.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. SANDERS. I thank the Chair.
  (The remarks of Senator Sanders pertaining to the introduction of S. 
2037 are printed in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  The PRESIDING OFFICER. The Senator from Utah.

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