[Congressional Record (Bound Edition), Volume 160 (2014), Part 8]
[Senate]
[Pages 11101-11102]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          RECESS APPOINTMENTS

  Mr. GRASSLEY. Mr. President, I rise today to praise the Supreme 
Court's decision to strike down President Obama's illegal recess 
appointments. Article II, section 2 of the Constitution provides for 
only two ways in which Presidents may appoint certain officers:
  First, it provides that the President nominates and, by and with the 
advice of the Senate, appoints various officers.

[[Page 11102]]

  Second, it permits the President to make temporary appointments when 
a vacancy in one of those offices happens when the Senate is in recess.
  On January 4, 2012, the President made four appointments. They were 
purportedly based on the recess appointments clause. He took this 
action even though they were not made, in the words of the 
Constitution, ``during the recess of the Senate.'' These appointments 
were blatantly unconstitutional. They were not made with the advice and 
consent of the Senate, and they were not made ``during the recess of 
the Senate.'' In December and January of 2011 and 2012, the Senate held 
sessions every 3 days. It did so precisely to prevent the President 
from making recess appointments. It followed the very same procedure as 
it had during the term of President Bush, and that was done at the 
insistence of Majority Leader Reid. President Bush then declined to 
make recess appointments during these periods, thus respecting the 
desire of the Senate and the Constitution that we were in session. But 
President Obama chose to attempt to make recess appointments despite 
the existence of the Senate being in session.
  The Supreme Court said today:

       [F]or purposes of the Recess Appointments Clause, the 
     Senate is in session when it says it is, provided that, under 
     its own rules, it retains the capacity to transact Senate 
     business.

  That is a quote from the decision.
  No President in history had ever attempted to make recess 
appointments when the Senate said it was in session. And I am a little 
surprised, since President Obama had served in the Senate, that he 
would not know how this had been respected in the past by Presidents.
  President Obama failed to act ``consistent with the Constitution's 
broad delegation of authority to the Senate to `determine the Rules of 
its Proceedings,''' as the Constitution states.
  These illegal appointments represent just one of the many important 
areas where President Obama has disregarded the laws with his 
philosophy of the ends justify the means.
  We should all be thankful the Supreme Court has reined in this kind 
of lawlessness on the part of this administration, and it should also 
bring some confidence that at least from time to time--maybe not as 
often as our constituents think--the checks and balances of government 
do work.
  The Supreme Court was called upon to decide whether President Obama 
could make recess appointments even when the Senate was in pro forma 
session. Fortunately for the sake of the Constitution and the 
protection of individual liberty, the Supreme Court said he could not. 
This is a very significant decision. It is the Supreme Court's biggest 
rebuke of any President--because this was a unanimous decision--since 
1974 when it ordered President Nixon to produce the Watergate tapes. 
The unanimous decision included both Justices whom even this President 
appointed to the Supreme Court.
  That shows the disregard in which the President held this body and 
the Constitution when he made these appointments. Remember, as I just 
said, I am a little surprised because at one time he was Senator Barack 
Obama.
  Thanks to the Supreme Court, the use of recess appointments will now 
be made only in accordance with the views of the writers of the 
Constitution, our Founding Fathers.
  It is worth keeping in mind what the President, the Justice 
Department, and the Senate said at the time of these appointments. The 
President said his nominees were pending and he would not wait for the 
Senate to take action if that meant important business would be done. 
So the President stated in another way that ``I have a pen and a phone, 
and if Congress won't, I will.'' But the Supreme Court has made clear 
that failure to confirm does not create Presidential appointment power.
  The appointments were so blatantly unconstitutional that originally 
there was speculation that the Justice Department had not approved 
their legality. But, in fact, the Department's Office of Legal Counsel 
had provided a legal opinion that claimed to justify the appointments--
in other words, justify the unconstitutional action of the President. 
The Department's Office of Legal Counsel's reasoning was preposterous, 
and this unanimous decision backs that up. That office defined the same 
word--``recess''--that appears in the Constitution in two different 
places differently and without justification. It claimed that the 
Senate was not available to do business, so that it was in recess when 
the President signed legislation that the Congress passed during those 
pro forma sessions. The Department allowed the President, rather than 
the Congress, to decide whether the Senate was in session.
  As today's Supreme Court unanimous decision makes clear, the Office 
of Legal Counsel opinion was an embarrassment, reflecting very poorly 
on its author. She had told us in her confirmation hearing that she 
would not let her loyalty to the President overcome her loyalty to the 
law. This Office of Legal Counsel opinion proved otherwise. It said the 
President had a power he did not have. He did not have that power, as 
expressed today by that unanimous decision of the Supreme Court.
  Those partisans in that office who defended that opinion and its 
author should be humbled and should take back their misplaced praise--
not that I expect them to do so.
  The Office of Legal Counsel opinion furthered a trend for that office 
from one which gave the President objective advice about his authority 
to one which provided legal justification for whatever action he had 
already decided he wanted to take. Perhaps now that the office has been 
so thoroughly humiliated, it will hopefully conclude that the 
Department and the President will be better served by returning to the 
former role of that office as a servant of the law and not a servant of 
the President.
  The other statements to keep in mind were from Senators. No Senator 
of the President's party criticized President Obama for making these 
clearly unconstitutional appointments, even though they felt we ought 
to protect against President Bush doing that. Rather than protect the 
constitutional powers of the Senate and the separation of powers, they 
protected their party's President.
  Those were not the Senate's best moments. This underscores again the 
need to change the operation of the Senate. Appointment powers and the 
separation of powers are not simply constitutional concepts, they are 
the rule for how the American people are protected from abuse by 
government officials. They exist not so much to protect the branches of 
government but to safeguard individual liberty.
  I often quote from Federalist Papers, this time from 51. Madison 
wrote that the ``separate and distinct exercise of different powers of 
government'' is ``essential to the preservation of liberty.''
  President Obama's unconstitutional recess appointments are part of a 
pattern in which he thinks that if he cannot otherwise advance his 
agenda, he can unilaterally thwart the law. That is a pretty 
authoritarian approach to governing. Whether it is with respect to 
drugs, immigration, recess appointments, health care, and a number of 
other areas, President Obama has concluded he can take unilateral 
action regardless of the law. And, of course, as we see in the case of 
these appointments, the Justice Department has aided and abetted him.
  Praise today to the Supreme Court for forcing the President to 
confront the errors of his ways, for enforcing the constitutional 
structure that protects our freedom, and maybe cause him to modify that 
statement he made earlier this year that:
  ``When Congress won't, I will, because I've got a pen . . . and I've 
got a telephone . . . ''
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Louisiana.

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