[Congressional Record (Bound Edition), Volume 158 (2012), Part 1]
[Senate]
[Pages 781-782]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. ALEXANDER. Mr. President, last week we Republican Senators had an 
extraordinary experience that millions of Americans have had and will 
have in the future: We spent a day at Mount Vernon, George Washington's 
home, which is not more than about 40 minutes from the Nation's 
Capital.
  Even in the middle of winter, it is a beautiful, historic setting. It 
is hard to imagine why George Washington and Martha Washington would 
ever want to leave the place.
  Touring the rooms, we could imagine what life must have been like 
then. There are many things that impress any of us when we visit there.
  One thing that especially impressed me was the fact that, despite the 
beauty of the place and Washington's love for farming, he was gone from 
Mount Vernon for 8\1/2\ years during the Revolutionary War. He never 
went home; he was always in the war. Even when he was President of the 
United States for 8 years, he was only at Mount Vernon 10 times during 
those 8 years; and after the Presidency, of course, he soon died. So he 
gave up quite a bit to be President of the United States.
  There were other things that impressed me about our visit to Mount 
Vernon. One was the reminder that our Revolution was a revolution 
against a King. George Washington, as commander in chief of the 
Continental Army, led a fight for independence from a King whom the 
signers of the Declaration of Independence stated, had a ``History of 
repeated injuries and usurpations, all having in direct object the 
establishment of an absolute Tyranny over these States.''
  Those were our Revolutionary Founders talking. As President of the 
Philadelphia Convention, George Washington presided over the writing of 
the U.S. Constitution which emphasizes, if it emphasizes any one word, 
the idea of ``liberty'' in creating the system of government we enjoy 
today.
  Then there was another aspect to George Washington of which we were 
reminded which would be good for us to think about today and that was 
his modesty and restraint.
  George Washington must have had remarkable presence. He never had to 
say very much, apparently, to command the attention and respect of his 
countrymen. He likely could have been general of the Army as long as he 
wished and President of the United States as long as he wished, but he 
chose not to do that.
  It was he who first asked to be called simply Mr. President, rather 
than some grand title. It was Washington who gave up his commission 
when the war was over, and it was Washington who stepped down after two 
terms and went home to Mount Vernon. In fact, that aspect of his 
character was imprinted upon the American character, that modesty and 
restraint on the part of the executive branch and a recognition that 
our system depends absolutely on checks and balances.
  I am struck by that attitude and the different attitude I see in the 
administration of President Obama, which has shown disregard for those 
checks and balances and the limits on Presidential power that our 
Founders and George Washington felt were so important.
  This administration, over 3 years, has been arrogating more power to 
the executive branch of government and upsetting the delicate balance, 
which the Founders created for the purpose of--what? For the purpose of 
guaranteeing to each of us as individuals the maximum amount of 
liberty.
  I remember Senator Byrd saying time and time again that the purpose 
of the Senate, more than anything else, was a restraint upon the 
tyranny of the executive branch of government. That is our purpose as a 
Senate.
  This President's Executive excesses were first illustrated by the 
creation of more czars than the Romanovs had.
  We have always had some so-called czars in the White House--the drug 
czar, for example. But now we have approximately three dozen of them. 
These czars duplicate and dilute the responsibilities of Cabinet 
members; they make it harder for the Congress, us, to have a 
supervisory role over exactly what they are doing. It is not only 
antidemocratic, it is a poor way to manage the government.
  Equally disturbing to me has been this administration's use of 
regulation and litigation to bypass the Congress and the will of the 
people when the Congress has a different point of view.
  For example, this was the case with the National Labor Relations 
Board and their decision in the Boeing case; which has now been 
apparently resolved but which was an enormous--an enormous abuse of 
power, in my opinion.
  Then the President is taking to blaming almost everyone for the 
problems we see in our lives today: First, it was President Bush, then 
it was the banks, then it was business, then it was the insurance 
companies, then it was Wall Street, then it was 1 percent of us, and 
now it is the Congress, which of course is in a government that is 
primarily run by the President's own political party.
  The President has taken to saying in his campaign speeches and his 
State of the Union Address the other day, ``If Congress won't act, I 
will,'' and he has begun to show that is no idle threat.
  Because now, on top of these other abuses, with his recent 
appointments to the National Labor Relations Board and the Director of 
the Consumer Financial Protection Bureau to head a new and 
unaccountable agency, the president has undermined the checks and 
balances that were placed in our Constitution and that George 
Washington so respected.
  This Senate has always been the place--whether it was a Democratic 
Senate arguing about the appropriateness of President Bush using war 
powers, this Senate has always been the place that has insisted upon 
checks and balances and the liberty of the people as guaranteed by 
those checks and balances.
  The President's recent actions have shown disregard for possibly the 
best known and possibly most important role of the Senate and that is 
its power of advice and consent of executive and judicial nominations 
as outlined in Article II, Section 2 of the Constitution.
  These actions, four appointments during a period of time when the 
Senate, in my opinion, was in session, fly in the face of the principle 
of separation of powers and the concepts of checks and balances against 
an imperial President.
  Let's look for a moment at the history and precedents of recess 
appointments. The exact length required for a recess is not defined in 
the Constitution, but according to the Congressional Research Service 
``it appears that no President, at least in the modern era, has made an 
intra-session recess appointment during a recess of less than 10 
days.''
  Both parties have relied upon the adjournment clause in Article I of 
the Constitution to argue that the absolute minimum recess period would 
conceivably be 3 days.
  We can also look at the number of recess appointments made by recent 
Presidents. As of January 23 of this year, President Obama had made 32 
recess appointments, all to full-time positions. At the same point in 
time in his first term, President Clinton had made nine recess 
appointments to full-time positions. President Bush, at about the same 
time, had made 35.
  So they all made recess appointments--appointments while the Senate

[[Page 782]]

was in recess. That is provided for specifically in the Constitution as 
something the President could do. But President Clinton never did it 
when Congress was in session for less than 10 days. President Bush 
never did it when Congress was in recess for shorter than 11 days. Now, 
unfortunately, President Obama has broken that precedent and made 4 
appointments when we were in a period of less than 3 days.
  Why is that important? In 2007, the current majority leader of the 
Senate, Harry Reid, decided the Senate did not want President Bush 
making recess appointments; that is, making appointments while the 
Senate wasn't in session. So the Senate refused at that time to enter 
into prolonged recesses. They invented the idea of pro forma recesses 
every 3 days. President Bush strenuously objected to that, but he 
respected that. He respected the constitutional authority of the Senate 
under article I, section 5 to determine when the Senate is in session.
  On November 16, 2007, Senator Reid said: ``With the Thanksgiving 
break looming, the administration has informed me that they would make 
several recess appointments.''
  Senator Reid didn't like the idea of recess appointments any more 
than we do. So he said: ``As a result, I am keeping the Senate in pro 
forma to prevent recess appointments until we get back on track.''
  The ACTING PRESIDENT pro tempore. The Senator has consumed 10 
minutes.
  Mr. ALEXANDER. I thank the Chair and ask to be notified when I have 
consumed 3 minutes more.
  On November 16, 2007, Senator Reid said:

       As a result, I am keeping the Senate in pro forma to 
     prevent recess appointments until we get this process back on 
     track.''

  And on July, 28, 2008 he said: ``We don't need a vote to recess. We 
will just be in pro forma session. We will tell the House to do the 
same thing.''
  The President is restricted, as Senator Reid indicated, by article I 
section 5 of the Constitution, which states that ``neither House, 
during the Session of Congress, shall, without the Consent of the 
other, adjourn for more than three days, nor to any other Place than 
that in which the two Houses shall be sitting.''
  Last December when the House and Senate agreed to adjourn, the 
Speaker--a Republican--and the majority leader here--a Democrat--agreed 
the two Chambers would hold pro forma sessions for the express purpose 
of not going into recess. Yet the President went ahead and made his 
appointments. This is a dangerous trend. It is a dangerous trend.
  The major issue before our country is the Obama economy. That is what 
we will be talking about more than anything else in an election year. 
But liberty is the defining aspect of our American character. If the 
President's current actions were to stand as a precedent, the Senate 
may very well find that when it takes a break for lunch, when it comes 
back, the country has a new Supreme Court Justice.
  Because we believe in the importance of that constitutional system, 
all of us on the Republican side insist on a full and complete debate 
on this issue. We intend to take this issue to the American people. We 
will file amicus curiae briefs in all of the appropriate courts and we 
will take this issue to the most important court in the land and that 
is the court of the American people on election day.
  I do not suggest that the President will find, or even should find, 
his relationship with Congress to be easy or simple. George Washington 
did not. President Washington once came up here to discuss a treaty 
with Senators and became so angry that he said, and this is 
Washington's word, he'd be ``damned'' if he ever went there again.
  The separation of powers does not mean an easy distribution of powers 
but it is essential to the American character. We should remember that. 
A short trip to Mount Vernon would remind us of that. The President's 
recess appointments not only show disregard for the Constitution, they 
show disregard for every individual American who chooses liberty over 
tyranny, President over King.
  I yield the floor.

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