[Congressional Record (Bound Edition), Volume 158 (2012), Part 1]
[House]
[Page 67]
[From the U.S. Government Publishing Office, www.gpo.gov]




WHAT WE HAVE LEARNED ABOUT THE CONSTITUTION FROM THE EXECUTIVE BRANCH, 
                                 PART I

  The SPEAKER pro tempore. The Chair recognizes the gentleman from 
Texas (Mr. Poe) for 5 minutes.
  Mr. POE of Texas. Mr. Speaker, the United States Constitution is the 
law of the land. It must be followed in the spirit and in the letter of 
the law.
  Article II, in section 2, gives the Executive authority to appoint 
certain public ministers with advice and consent of the U.S. Senate. 
When the Senate is in recess, the Executive can make temporary 
appointments until the end of that legislative session.
  See, the Constitution envisions cooperation by the Executive with the 
Senate over naming persons to offices that rule over the people of 
America. Both the Executive and the Senate must agree prior to an 
official appointment.
  The Senate, within their legal prerogative, has been blocking three 
NLRB appointments and the appointment of the head of the new Consumer 
Financial Protection Bureau.
  However, ignoring the Senate, the Executive appointed these people 
anyway. He declared the Senate was in recess when he made such 
appointments. But was it?
  Well, constitutional experts disagree. The Senate was in a pro forma 
session. One reason they were in pro forma session was to prevent 
recess appointments by the executive branch. During pro forma sessions, 
the Senate can do business and meet another constitutional requirement 
to not be in recess without permission of the House of Representatives.
  More from the Constitution. Article I, section 5 says no Chamber, the 
House or the Senate, can recess for more than 3 days without the 
approval of the other Chamber. The House did not and even could not 
agree to a recess of the Senate because the Senate was in session, not 
in a recess.
  The Executive's claim that the Senate was in a recess is flawed 
because the House did not consent to any Senate recess. Thus, the 
Senate legally had to still be in session until the House agreed to a 
recess under our Constitution.
  Furthermore, Congress determines when it's in recess, not the 
executive branch.
  There is more evidence the Senate was in session. The Executive says 
the pro forma session was not a real session but a recess, so, thus, 
the recess appointments. However, during this pro forma session, the 
Senate passed legislation. The controversial payroll tax extension law 
became law signed by the Executive.
  If the Senate was in recess, as the Executive claims, then it seems 
the payroll extension law is null and void. Why? Because Congress 
cannot pass legislation unless it's actually in session.
  However, the opposite is true. Since the payroll tax law was passed 
during this pro forma session, and the appointments were made during 
this pro forma session, the appointments are null and void. They 
violate the letter and spirit of the Constitution. They were made 
without confirmation of the Senate. These were not recess appointments 
because the Senate was in session.
  The Executive cannot have it both ways. The Executive cannot use 
linguistic gimmicks to redefine the words ``recess'' and ``session'' to 
his own liking, just so he can have it his way. The letter and spirit 
of the Constitution have been bruised and violated by his actions.
  The Constitution must be followed, whether one agrees with what it 
says or not. Even if the Executive wins his argument, which is legally 
and logically flawed, he has ignored the framework of the Constitution, 
which is built on Executive cooperation with Congress.
  The Executive went his own way. And that's just the way it is.

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