[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

EXECUTIVE OVERREACH: THE PRESIDENT'S UNPRECEDENTED ``RECESS''
APPOINTMENTS

=======================================================================

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION

__________

FEBRUARY 15, 2012

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Serial No. 112-84

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Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

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COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada

Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel

C O N T E N T S

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FEBRUARY 15, 2012

Page

OPENING STATEMENTS

The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 2
The Honorable Trent Franks, a Representative in Congress from the
State of Arizona, and Member, Committee on the Judiciary....... 4
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Member, Committee on the Judiciary.. 5

WITNESSES

Charles J. Cooper, Partner, Cooper & Kirk, PLLC
Oral Testimony................................................. 7
Prepared Statement............................................. 10
John P. Elwood, Vinson & Elkins
Oral Testimony................................................. 20
Prepared Statement............................................. 23
Jonathan Turley, Shapiro Professor of Public Law, George
Washington University
Oral Testimony................................................. 35
Prepared Statement............................................. 38

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Material submitted by the Honorable Lamar Smith, a Representative
in Congress from the State of Texas, and Chairman, Committee on
the Judiciary.................................................. 58

APPENDIX
Material Submitted for the Hearing Record

Material submitted by the Honorable Lamar Smith, a Representative
in Congress from the State of Texas, and Chairman, Committee on
the Judiciary
Prepared Statement of the Honorable Lamar Smith, a
Representative in Congress from the State of Texas, and
Chairman, Committee on the Judiciary....................... 91
Letter to the Honorable Eric H. Holder, Jr., Attorney
General, U.S. Department of Justice........................ 93
Wall Street Journal article titled ``Democrats and Executive
Overreach,'' January 20, 2012.............................. 96
Material submitted by the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Member, Committee on the Judiciary
Prepared Statement of the Honorable Trent Franks, a
Representative in Congress from the State of Arizona, and
Member, Committee on the Judiciary......................... 98
Letter from Corrine M. Stevens, Senior Director, Legislative
Affairs, Associated Builders and Contractors, Inc. (ABC)... 99
Letter from the Honorable W. Todd Akin, a Representative in
Congress from the State of Missouri............................ 101
Letter from the Honorable Todd Rokita, a Representative in
Congress from the State of Indiana............................. 102
Material submitted by the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary
Letter to the Honorable Barack Obama, from the Honorable
Mitch McConnell, Republican Leader; and Richard Shelby,
United States Senator...................................... 106
USA Today article titled ``Senate politics shut down some
agencies,'' by Gregory Korte, December 28, 2011............ 110

EXECUTIVE OVERREACH: THE PRESIDENT'S UNPRECEDENTED ``RECESS''
APPOINTMENTS

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WEDNESDAY, FEBRUARY 15, 2012

House of Representatives,
Committee on the Judiciary,
Washington, DC.

The Committee met, pursuant to call, at 10:11 a.m., in room
2141, Rayburn Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbenner, Coble,
Gallegly, Goodlatte, Lungren, Chabot, King, Franks, Gohmert,
Poe, Griffin, Marino, Gowdy, Adams, Quayle, Conyers, Nadler,
Scott, Watt, Jackson Lee, Waters, Johnson, and Quigley.
Staff present: (Majority) Zachary Somers, Counsel; Travis
Norton, Counsel; (Minority) Aaron Hiller, Counsel; and Danielle
Brown, Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
We welcome everyone here today on an important subject. I
am going to recognize myself for an opening statement, and then
several other Members. And then we will proceed to testimony
and then questions.
On January 4, the President announced his unprecedented
appointments of three individuals to the National Labor
Relations Board, and Richard Cordray as Director of the
Consumer Financial Protection Bureau. These appointments go
well beyond past Presidential practice and raise serious
constitutional concerns.
The Constitution provides the President with the authority
to, quote, Fill up all vacancies that may happen during the
recess of the Senate, end quote. However, the President's
recent appointments were made at a time when the Senate was
demonstrably not in recess.
During this supposed recess, the Senate passed one of the
President's leading legislative priorities, a temporary
extension of the payroll tax cut. It also discharged its
constitutional obligation to come into session beginning on
January 3 of every year.
Moreover, the Senate, itself, which has the power under
Article I, Section 5 of the Constitution, to determine the
rules of its proceedings, did not believe it was in recess when
these appointments were made. As Senator Majority Leader Reid
stated on the Senate floor regarding a similar period in 2007,
quote, The Senate will be coming in for pro forma sessions to
prevent recess appointments, end quote.
What was acceptable in 2007 should be equally acceptable
today.
In fact, not only was the Senate not in recess when the
President made these appointments, but it appears that under
the Constitution, it legally could not have been. The
Constitution provides that neither house of Congress may
adjourn for more than 3 consecutive days without the consent of
the other house. Accordingly, the Senate could not have
adjourned its session and gone into recess without the consent
of the House, which the House did not give.
Despite these facts, the President claimed the unilateral
authority to declare that the Senate is in recess for purposes
of the Recess Appointments Clause. Such an astounding assertion
of power raises serious constitutional concerns, and has the
potential to adversely affect the balance of power between the
President and the Congress. Regrettably, these appointments are
part of a pattern of the President bypassing Congress and
asserting executive power past constitutional and customary
limits. For example, when the President's cap-and-trade
legislation failed to pass Congress, he had the Environmental
Protection Agency issue equivalent regulations instead. When
Congress refused to enact the President's card check
legislation, doing away with secret ballots in union elections,
the President's National Labor Relations Board announced it was
going to impose the change by administrative decree. And when
Congress defeated the Dream Act, the President's illegal
immigration amnesty proposal, the Administration instructed
immigration officials to adopt enforcement measures that often
bring about the same result as the Dream Act.
In addition to disrespecting Congress's constitutional
authority when Congress has refused to enact his policy
preferences, the President has also ignored laws passed by
Congress. For instance, rather than seeking legislative repeal
of the Defensive Marriage Act, the President simply instructed
his Justice Department to stop defending its constitutionality.
And the President ignored the Religious Freedom Restoration Act
by failing to give religious organizations an exemption from
the Health and Human Services contraceptive mandate.
One of the fundamental principles of American democracy is
that we are a Nation of laws. America's elected leaders swear
to follow our Constitution and our statutes even when they do
not agree with them. With these recess appointments, the
President may have violated the Constitution by disregarding
the rule of law.
That concludes my opening statement. And the gentleman from
Michigan, the Ranking Member, Mr. Conyers, is recognized for
his.
Mr. Conyers. Thank you, Chairman Smith, and to our
distinguished witnesses and Members of the Committee. I am
always allowed to present a view frequently considerably
different from the one of the Chairman, and I will proceed to
do so now.
The Framers included recess appointment clause in the
Article II of the Constitution to ensure that government
continues to function when the Senate is unavailable to confirm
Executive nominees. Our Founding Fathers knew that the failure
to appoint leaders to key executive branch agencies could
result in real harm to the American people.
Until recently, very recently, I thought even the
leadership of the Senate minority, the distinguished Senator
from Kentucky, agreed with me on that point. I happen to have
the letter in which he did so in writing with me at this point.
But also consider the words of the distinguished Senator from
Arizona, John Kyl, on the floor of the Senate in February of
2005: ``When someone is qualified and has the confidence of the
President, unless there is some highly disqualifying factor
brought to our attention, we should accede to the President's
request for his nomination, and confirm the individual.'' The
senior Senator from Kansas, Senator Pat Roberts, expressed a
similar idea with respect to judicial nominees.
The American people are paying for fully staffed courts and
are getting obstructionism and vacant benches. Reckless
behavior such as this is irresponsible and a waste of
taxpayers' dollars.
And so the title given to this hearing suggests that some
of my colleagues may have already determined the validity of
President Obama's January 4 recess appointments. But a fair
discussion ought to include the context for the
Administration's decision to invoke the recess appointments
clause of the United States Constitution; namely, unprecedented
obstruction in the United States Senate itself.
Failure to consider admittedly qualified candidates
threatens real harm to the American people. And I have two
documents that go to the troubling nature of the Senate
minority and its complete unwillingness to consider qualified
nominees of either party.
The first is a letter to President Obama, signed by 44
Members of the Senate, all Republicans, including the two I
quoted earlier, stating that they will not support the
consideration of any nominee, regardless of party affiliation.
To the CFPB director, it is very simple. They decided to
take the new Consumer Financial Protection Bureau hostage, they
don't like the CFPB, which is their right, and demand that the
finance industry have more influence over an agency designed to
curb abuses in the finance industry.
The second is a ``USA Today'' article, dated December 28,
2011, in which the official historian of the United States
Senate, Don Ritchie, states that never before in the history of
the Senate have a handful of senators blocked a nominee to shut
down an agency's business. He states, ``We haven't found any
precedent for making an agency powerless by not confirming
anyone to run it.'' It is worth discussing the nature of the
two agencies that the Senate minority seems to want to shut
down through inaction.
You know the Consumer Financial Protection Bureau is a
product of the Dodd-Frank legislation passed recently. The
agency is an independent watchdog, working on behalf of
American consumers, to curb unfair, deceptive, and abusive
financial practices, to reign in predatory payday loans, to
safeguard against abusive debt collection, and to monitor
private student lenders non-bank mortgage companies and other
institutions.
The National Labor Relations Board helps working Americans
to form unions and to bargain collectively for fair wages and
safe working conditions. And it is also a fair and public venue
for working out disputes between labor and management.
So I believe these two functions, Mr. Chairman, enforcing a
set of basic protections for American consumers, maintaining a
level playing field for American workers, are vital to our
economy and to the security of the American middle class. And
so I hope to hear from our witnesses about these issues that
you and I have raised.
I thank you for the time.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from Arizona, Mr. Franks, the Chairman of the
Constitution Subcommittee, is recognized for an opening
statement.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, no one questions that when the Senate is in
recess the President does, indeed, have the authority to make
recess appointments. That power is clearly set forth in the
Constitution. Further, no one questions that recess
appointments have always been controversial. Presidents of both
political parties have made politically unpopular recess
appointments. And no one questions whether it can be
frustrating to try to get nominees through the Senate. Senate-
delaying tactics have stalled nominees on both sides of the
aisle. But never before in this country's history has a
President made a recess appointment during a time when the
Senate was not actually in recess. To quote former Attorney
General Meese, ``It is a constitutional abuse of a high
order.''
In 2007, Mr. Chairman, Senate Majority Leader Reid and
Senate Democrats, which at the time included then Senator
Obama, adopted the practice of holding pro forma sessions,
rather than adjourning, to block President Bush's ability to
make recess appointments. The President must think that the
rules he and his Senate democrat colleagues developed to
hamstring President Bush do not apply to him. But it is an
axiom of democratic government that the same rules apply no
matter who holds office.
And Mr. Chairman, just as an aside here, I know the
witnesses will address the issue that some of the laws that
were passed in pro forma session were considered legal even by
the Administration. And it blows my mind to think that both the
recess appointments can be in recess and that those pro forma
laws can be valid at the same time.
Thus, although the President may object to the Senate's
practice of holding pro forma session instead of recessing, he
may not simply ignore the factual realities and make recess
appointments when the Senate is not in recess. Even President
Bush, who my friends on the other side of the aisle assailed
for taking unilateral executive action, refused to provoke a
constitutional crisis by making recess appointments while the
Senate was meeting regularly in pro forma session.
The President's supporters may argue that the President
sought the Justice Department's advice before making these
appointments, and that the Department advised him that the
appointments were permissible. Leaving aside the fact that the
legal memo supporting the President's appointments was
belatedly issued 2 days after the appointments were announced.
The President, by his own words, has acknowledged that the
reason he appointed these individuals had nothing to do with
the only justification the Justice Department offered in
support of his exercise of power.
The Justice Department asserted that the President has the
authority to determine that the Senate is ``unavailable to
perform its advice and consent function, and to exercise its
power to make recess appointments.'' Yet, in making these
appointments, Mr. Chairman, the President did not determine
that the Senate was unavailable to confirm his nominees. He
determined that the Senate was unwilling to confirm them.
In fact, in appointing Mr. Cordray, the President declared,
``I refuse to take no for an answer.'' Mr. Chairman, just as
the President has refused to take no for an answer, Congress
should refuse to accept the legality of these illegal
appointments. If these appointments are allowed to stand
unchallenged, they will threaten the bedrock principle of
separation of powers that lies at the base of our
constitutional republic.
By circumventing the Senate's advice and consent role, the
President is concentrating the power of appointment in the
executive branch alone. However, as James Madison recognized,
The accumulation of all powers, legislative, executive and
judiciary, in the same hands, whether of one, a few, or many,
may justly be pronounced the very definition of tyranny.''
And with that, Mr. Chairman, I yield back.
Mr. Smith. Thank you, Mr. Franks.
The gentleman from New York, Mr. Nadler, the Ranking Member
of the Constitution Subcommittee, is recognized for an opening
statement.
Mr. Nadler. Thank you, Mr. Chairman.
Clashes between the branches of government are not unknown
in our constitutional history. And this one is a classic one.
It starts off with, in my view, improper exercise of power by
the Senate, or by the Senate minority, and for the first time
in American history, refusing to confirm people not on the
grounds of the qualifications of the people, of the appointees,
or the nominees, I should say, but by asserting that we don't
like the law that was passed, and unless the law is changed, we
will confirm nobody. We will nullify the effect of the law by
refusing to confirm anyone to execute the law.
This is an invasion of the prerogatives of the Congress
that passed the law, and of the obligation of the Executive to
enforce the law, because it destroys the ability of the
Executive to enforce the law, and is intended by its terms and
by the statements of the minority leadership of the Senate to
do just that. That was its purpose.
The Consumer Financial Protection Board shall not be
allowed to function until its structure is changed in a way
that we don't have the votes to change it, is essentially what
the minority leadership of the Senate said. Confronted by that,
the Executive perhaps overreached by making these recess
appointments.
Now, I object to the title of the hearing, ``Executive
Overreach: The President's Unprecedented Recess Appointments.''
Whether there was executive overreach is a matter that will be
determined by the courts. You can make a good case either way,
frankly.
One of our witnesses, I was just glancing over his
testimony, quotes from a report of the Senate Judiciary
Committee from over a century ago, in which it essentially
agrees with the current Administration's interpretation. And it
says, ``The recess power means, in our judgment, the period of
time when the Senate is not sitting in regular or extraordinary
sessions, the branch of the Congress, during extraordinary
session for the discharge of executive functions, when its
Members owe no duty of attendance, when its chamber is empty,
when, because of its absence it cannot receive communications
from the President, or participate as a body in making
appointments.''
That is an interpretation by the Senate Judiciary Committee
over 100 years ago. And if that is accepted, then the President
was justified in making these recess appointments, because the
pro forma sessions of the Senate were just that. The Senate was
not capable of acting, should it wish to do so, on the
President's nominations, by design, and its pro forma sessions
only intended to frustrate the President's exercise of his
constitutional power without, in fact, giving the Senate power
to consider those nominations at that time.
That interpretation would make the President's actions
completely justified. Whether the Supreme Court will agree with
that interpretation or with the contrary interpretation, as I
said, I think there is good law on both sides. We will see. I
am not clear about the purpose of this hearing, since I have
heard no one suggest that the House of Representatives can do
anything about this, other than make statements and give
opinions.
I do think that we have a constitutional problem when a
minority in the Senate takes it upon itself to rule against the
will of the majority and to try to nullify laws by simply not
confirming people, regardless of their qualifications, and
stating so, unless the law is changed. And when confronted by
that unconstitutional, in my opinion, Senate overreach, it is
not surprising the Executive would use what weapons it has in
its armory. And we are considering the consequences of that.
But we really should be considering the entire question of how
do you deal with a minority that seeks to act as the majority,
and to frustrate the will of the majority and of the Executive
in unprecedented ways, and seeks to nullify the law. And that,
it seems to me, is the larger question here. And this question
is a consequence of those actions.
I thank you. And I yield back.
Mr. Smith. I thank you, Mr. Nadler. We have a distinguished
panel of witnesses today. And let me proceed to introduce them.
Our first witness is Charles Cooper, a partner in the law
firm of Cooper & Kirk. In 1985, Mr. Cooper was appointed
Assistant Attorney General for the Office of Legal Counsel by
President Reagan. Additionally, after attending the University
of Alabama School of Law, where he finished first in his class,
he served as a law clerk to Chief Justice Rehnquist. Mr. Cooper
has been named one of the 10 best civil litigators in
Washington, D.C.
Our second witness is John Elwood, a partner at Vinson &
Elkins. Before joining Vincent & Elkins, Mr. Elwood served in
several senior positions at the Justice Department, including
as Deputy Assistant Attorney General, in the Office of Legal
Counsel, and as an assistant to the Solicitor General. In
addition, Mr. Elwood, a graduate of Yale Law School, served as
a law clerk to Justice Kennedy.
Our final witness is Jonathan Turley, the Shapiro Professor
of Public Interest Law, at the George Washington University Law
School. Professor Turley, an alumnus of Northwestern University
Law School, is a nationally recognized legal scholar, who has
written extensively in areas ranging from constitutional law,
to legal theory, to tort law. He has been recognized as the
second most cited law professor in the country.
We welcome you all. I look forward to your testimony. And
just as a reminder, there is a 5-minute limit on the testimony.
But whatever is not stated, we can put into the record. So we
will proceed.
Mr. Cooper, will you start us off?

TESTIMONY OF CHARLES J. COOPER, PARTNER,
COOPER & KIRK, PLLC

Mr. Cooper. Thank you very much, Chairman Smith. And good
morning Ranking Member Conyers, Members of the Committee. I
appreciate very much the Committee's invitation to testify this
morning on this very important separation of powers issue. And
I am especially honored to be in the company of these
distinguished panelists, Professor Turley and Mr. Elwood.
The issue that is at the heart of the Committee's
constitutional inquiry this morning is whether the Senate was
in continuous recess from December 17 to January 23, last,
during the holiday break. The Administration, in an opinion
authored by the Office of Legal Counsel, takes the position
that it was, despite the fact that the Senate repeatedly
gaveled itself into pro forma session, and, in fact, passed
legislation during one of those sessions.
In my view, the Senate was not continuously in recess
during that period, and the January 4 recess appointments,
therefore, exceeded the President's authority under the recess
appointment clause.
OLC's legal argument rests entirely on the conclusion that
even as the Senate held pro forma sessions, and passed
legislation during one of them, it remained in recess. Now,
that view, I believe, is unsustainable for three key reasons.
There are more, but there are three I will mention this
morning.
The first and threshold reason to conclude that the Senate
was not in continuous recess is that the Senate says so. The
Constitution's rulemaking clause commits to each house of
Congress the power to determine the rules of its proceedings.
And rules governing when and how a house of Congress determines
whether it adjourns or meets are quintessential rules of
proceedings. Because the rulemaking power commits that
authority and the interpretation of that authority, to the
Senate's judgments, the Senate's holding of repeated pro forma
sessions between December 17 and January 23, in my opinion,
should end the matter.
Second, there is a firmly established practice of using pro
forma sessions to satisfy other constitutional requirements
requiring that the bodies of Congress be in session. For
example, the Senate has repeatedly held pro forma sessions to
comply with Article I, Section 5's requirement that it not
adjourn for more than 3 days without the consent of this body.
Congress also uses pro forma sessions to satisfy the 20th
Amendment's requirement that it meet at noon on January 3 every
year to start a new session of Congress, unless a different
time is established by statute. And it is very difficult to see
how the Senate can be in session for purposes of satisfying one
constitutional provision, while in recess for purposes of the
other constitutional provision.
And I would like to add this point, which isn't in my
written testimony. But by treating the January 4 appointments
as occurring during an intra-session recess, rather than an
intersession recess, OLC tacitly acknowledged that the Senate's
January 3 pro forma session started a new session of Congress,
as that word is used in the recess appointment clause.
And since recess appointee's commissions constitutionally
expire at the end of the next session of Congress, under the
recess appointment clause, that approach allows the President's
appointees to serve until the end of 2013, rather than the end
of 2012. So in that way, OLC's treatment of the January 3 pro
forma session of the Senate is really schizophrenic. They have
determined that it is sufficient to start a new session, as
that term is used in the recess appointment clause, but
inadequate to end a recess under that same recess appointment
clause.
Now OLC rejects all of these arguments and relies, instead,
on what it says is the purpose of the recess appointment
clause. In its words, to provide a method of appointment when
the Senate is unavailable to provide advice and consent. So OLC
says the pro forma sessions are essentially a sham, and that
the President has discretion to ignore them.
But that assertion collapses under the weight of one
inconvenient truth. At one of those pro forma sessions, on
December 23, the Senate and the House of Representatives
actually passed legislation, the 2-month extension of the
payroll tax cut, which the President promptly signed into law.
So in passing that payroll tax cut extension bill, the Senate
acted by unanimous consent, the very same procedure by which
the vast majority of Federal nominees are confirmed.
If the Senate is available to pass legislation by unanimous
consent during a pro forma session, then it is surely available
to confirm the President's nominees by the same procedure. The
OLC opinion answers that, in fact, the simple fact that the
Senate is able to act during its pro forma sessions is
irrelevant in light of the fact that the President may properly
rely, according to OLC, on public pronouncements that the
Senate will not conduct business during pro forma sessions.
There are several problems with that argument, I submit, but I
want to highlight just two in the few moments that I have
remaining.
First, by the time the President made the recess
appointments at issue here, on January 4, the Senate had itself
repudiated the no-business pronouncement that it made when it
scheduled those pro forma sessions. And it is difficult to see
how the President can rely on a public pronouncement by the
Senate that the Senate itself has previously repudiated.
The second point is this: The President did not, in fact,
rely on the no-business public pronouncements. It was the
President who urged the Senate and this body to pass the 2-
month payroll tax extension during the holiday recess and in
pro forma session. And it was the President who promptly signed
it into law. The President is not entitled both to rely upon
the no-business public pronouncement and to ignore it, as he
pleases.
The short of my testimony, Mr. Chairman, is that the
President's January 4 recess appointments, in truth, had
nothing to do with whether the Senate was available to act, and
everything to do with the Senate's unwillingness to confirm the
President's nominees. And regardless of whether you think the
President, in this instance, sought to exceed his power for
good or for ill, I would submit that it is Congress's
responsibility, its constitutional responsibility, to resist
this constitutional excess of his authority.
Thank you very much.
[The prepared statement of Mr. Cooper follows:]

__________

Mr. Smith. Thank you, Mr. Cooper.
Mr. Elwood?

TESTIMONY OF JOHN P. ELWOOD, VINSON & ELKINS

Mr. Elwood. Mr. Chairman, Ranking Member Conyers, thank you
for giving me the opportunity to appear before you this
morning, and present my thoughts on the constitutionality of
the President's January 4 recess appointments. I will confine
my prepared remarks this morning to the question of their
constitutionality, not whether they were advisable or
appropriate, as a matter of comity, between the branches of
government.
The executive branch and the Senate have long used a
practical and functional test to determine when the Senate is
in recess for purposes of the President's recess appointment
authority. As Congressman Nadler noted, the Senate Judiciary
Committee wrote in an authoritative 1905 report that the
Framers meant the word recess ``Should mean something real, not
something imaginary. Something actual. Not something
fictitious. They used the word as the mass of mankind then
understood it and now understand it. It means the period of
time when the Senate is not sitting in regular or extraordinary
session as a branch of the Congress, when its Members owe no
duty of attendance when its chamber is empty.''
Based on the language of the Senate orders creating the
recess, I believe the President reasonably concluded that the
Pro Forma sessions held around the time of the appointments did
not interrupt the ongoing recess of the Senate.
The recess order specified that the Senate would hold ``Pro
forma sessions only, with no business conducted.'' As the name
``pro forma'' makes clear, the sessions had only the form and
not the substance of a legislative session. The Senate has held
scores of pro forma sessions during 22 recesses since the
procedure was first used in November 2007 to prevent recess
appointments. Overwhelmingly, each session has lasted only
about 30 seconds, and true to the terms of the recess orders,
no business has been conducted.
The Senate's other actions confirmed that they were in
recess at the time. Before this recess, the Senate put in place
a special mechanism for what the Senate procedure manual calls
recess appointments to commissions, committees, and boards,
reflecting recognition both that normal procedures wouldn't
work, because of the recess, and that it is important to keep
positions filled.
Under the circumstances, the ``mass of mankind'' would
conclude that the Senate remained in recess, despite the pro
forma sessions. And, indeed, the public statements of senators
reflect their belief that the Senate was not available for the
entire recess, and that no legislative business would be done
during that time.
I acknowledge that there are at least three credible
arguments for why the pro forma sessions did interrupt the
Senate's recess, as Mr. Cooper has recited. The implication of
these arguments is that the appointments were made during what
is essentially a 3-day recess. Ultimately, I do not find the
arguments persuasive.
First, it is true that the pro forma sessions here were not
simply conducted to prevent recess appointments. Because the
House did not consent to adjournment, reportedly, in order to
prevent recess appointments, the session sought to satisfy the
requirement of Article I that neither house shall adjourn for
more than 3 days without the consent of the other.
One session was also held to satisfy the 20th Amendment's
requirement that Congress must meet on January 3, unless it
provides otherwise. But assuming the pro forma sessions satisfy
those requirements, it does not follow that they would
interrupt the recess of the Senate for purposes of a
differently worded provision of a different article of the
Constitution that was intended to serve a very different need,
to keep offices filled.
In constitutional law, context matters. The very same
clause of the Constitution gives Congress the power to regulate
commerce, ``Among the several States and with the Indian
tribes.'' But Congress has plenary authority to regulate Indian
affairs, but not interstate commerce.
It is reasonable to believe that Congress has greater
leeway to use pro forma sessions for internal legislative
branch operations than it does to affect the powers of another
branch. And while there is a historical tradition of using pro
forma sessions for legislative purposes, there is no comparable
tradition of using a series of such sessions to deny the
President authority to make appointments during what would
otherwise plainly be a lengthy recess.
Second, the Constitution gives the Senate the power to
determine the rules of its proceedings. But the courts have
recognized that a House's power to govern its internal affairs
does not give it license to override constitutional limits on
its authority, such as by impairing the functions of a
coordinate branch. It is particularly difficult for the Senate
to justify denying the President the ability to keep executive
offices filled at a time it grants its own leadership authority
to make appointments despite the recess.
Finally, it is true that twice during the 111th Congress
the Senate enacted legislation by unanimous consent during what
were originally scheduled to be pro forma sessions. I do not
believe those two unusual episodes, which involved
extraordinary efforts to avert imminent harm, prove that the
Senate is available, as a general matter, to do work during pro
forma sessions.
The recess order here explicitly said that no work was to
be conducted during the sessions. And as the Congressional
Research Service concluded just last month, ``Normally, it is
understood that during a pro forma session, no business will be
conducted''.
Even before these two outlier sessions where legislation
was passed, Senators stated, quote, ``We are not going to be
able to consider legislation, unquote, during the recess. If
even Members of the Senate believe there is no reasonable
possibility of performing legislative work during pro forma
sessions, I see no basis for holding the President to a higher
standard.
I look forward to answering your questions.
[The prepared statement of Mr. Elwood follows:]

__________

Mr. Smith. Thank you, Mr. Elwood.
Professor Turley?

TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF PUBLIC LAW,
GEORGE WASHINGTON UNIVERSITY

Mr. Turley. Thank you, Mr. Chairman, Ranking Member
Conyers, Members of the Committee, my name is Jonathan Turley.
And I am a law professor at George Washington University. It is
an honor to appear before you today to talk about such an
important issue in our constitutional scheme.
It is also an honor to follow my two esteemed colleagues.
Although, I feel a bit like Rocky III, that all of the good
themes and characters have been taken. So I am probably going
to rely heavily on my written testimony to fill out what has
already been addressed. But I would like to amplify a couple of
points.
First of all, I want to say at the outset that I have long
supported Mr. Cordray, who I thought was a very well-qualified
nominee. This has nothing to do with him. To the contrary,
constitutional analysis has to be dispassionate and detached.
On this occasion, whether one supports the nomination or does
not, it is really immaterial to the constitutional analysis.
What is material is what I view as a circumvention of the
delicate balance created in our system by the Framers.
I should note that often in this debate it has been cited
that this was required, because of the extraordinary politics
of our time. I just want to emphasize, as a matter of accuracy,
that there is nothing extraordinary about our current politics.
Indeed, the Framers would have viewed our current politics as
relatively tame. When the Framers were doing what you do now,
the political situation was positively lethal, with Federalists
and Jeffersonians not just trying to arrest each other, but in
some cases, put each other to death. So we should not forget
that people like Jefferson called his opponents the, quote,
Reign of the witches. This was a fairly intense period. The
divisions were quite deep.
We shouldn't allow dysfunctional politics to justify
dysfunctional constitutional measures. I believe this is one
such measure. I believe that President Obama has, indeed,
violated the Constitution with these appointments.
I will now return to the language of Article II, Section 2,
Clause 3. We have talked about it, but I will simply note, I
have often viewed this to be not a closed question. I think the
plain meaning of the recess appointments clause is obvious. I
subscribe to the original interpretation of the clause.
Ironically, I believe that if Congress stayed with that
original interpretation, which was written for very good
reasons, to only apply to vacancies that occur within a recess,
we would have avoided much of the controversies we have seen in
modern time.
It is not a provision that is supposed to circumvent the
checks and balances of the system, particularly the preceding
clause, which is the appointments clause. What it does is it
requires a President to convince Congress. That is what the
checks and balances are. Congress is allowed to block or reject
a nominee for good reason, bad reason, or no reason at all.
They have to work together.
Now, as a father of four, I often have to tell my kids that
recess is not a time, really, where rules don't apply.
Unfortunately, Presidents have treated recesses that way, that
it somehow relieves them of those requirements of checks and
balances. It does not, in my view.
I also want to emphasize something that is quite important.
As my able colleagues have addressed some of the legal issues
and interpretations that go into this language, much of this
debate is detached from the reality of the clause, of why it
was enacted. I don't believe there is any question as to what
the Framers saw as being accomplished by the recess
appointments clause. Because back then, recess appointments
were not viewed as uncommon. To the contrary, they were very
common. But they were common, because Congress often recessed
for 6 to 9 months. So Congress was not here. Your predecessors
would travel on dirt roads by horse, to far distances, and they
would disappear. So the recess appointments clause was
desperately needed, particularly when you had a Supreme Court
with only six members. You couldn't really have many vacancies.
So, indeed, it was used a great deal. But the purpose was also
obvious. It was something that you needed to act on out of
necessity.
In my testimony, I point to the views expressed by
Alexander Hamilton, which quite clearly reject the current
views of the clause. It also refers to objections made for the
recess appointments clause. It is threatening a monarchal
system of powers for the President. Those objections were
opposed by Framers, who pointed out that this was a very
limited power. And I would encourage that the views of the
first attorney general of the United States, Edmund Randolph,
be considered.
Randolph was in a unique position to interpret the clause.
He was not only a Framer, but he was actually on the committee
on detail, one of the most important groups in the
Constitutional Convention. Randolph was also a remarkably
principled man. A brilliant lawyer. He was presented with this
question when the ink was barely dry on this clause. And he
said clearly, it could not be used for a vacancy that did not
occur during the recess. That view was amplified later by other
attorney generals in our history.
The OLC opinion that has been issued by the Obama
administration is certainly well written and well researched. I
have a lot of respect for that office. I strongly disagree with
the conclusions of that opinion. It tries too hard to thread
the needle on this. I think the clear language and purpose of
the clause is being frustrated.
I have been a critic of past recess appointments, including
appointments by President Bush. But this is, indeed, a
standout. We have not seen a recess appointment quite like this
one. I believe it should unify Members of this institution.
After this clause was ripped from its textual moorings, it
has floated dangerously in the choppy waters between the
executive and legislative branches. It has done a disservice to
the country over that period. As I often tell my students, in a
Madisonian system it is often as important how you do something
as what you do. I think this is the wrong means.
Thank you for your time.
[The prepared statement of Mr. Turley follows:]

__________

Mr. Smith. Thank you, Professor Turley. It is pretty clear
that this is a subject that could have benefited by more than 5
minutes from each of our panelists today. It is complex, and it
is sensitive in many ways.
Let me recognize myself for 5 minutes for questions. And on
the way to questions, without objection, we will make,
Professor Turley, your op-ed in today's ``USA Today'' a part of
the record.
[The information referred to follows:]

__________
Mr. Turley. Thanks.
Mr. Smith. Let me address my first question to Mr. Cooper
and Mr. Turley, but precede it by saying this: To me, and I
haven't heard anyone say otherwise, what the President did, to
me, was unprecedented, unprecedented in our 200-year history.
And to me, to justify what the President did, you would have to
come up with a new interpretation of the Constitution.
First, the President should know better. He was a professor
of constitutional law. Second of all, it appears, to me, at
least, that the Department of Justice is coming across as an
apologist for the President. And in doing so, it is coming
across as a politicized department, not necessarily a
department worthy of the respect of the American people for
dispassionately making a ruling or offering an opinion on the
Constitution.
And let me offer as evidence of this the fact that, as I
understand it, two of the four appointments were made 2 days
after the President and the Attorney General alleged that the
Senate had gone into recess. The reason I think this is acting
in bad faith is because, clearly, there was no time for the
Senate to perform its advice and consent responsibilities if
the President was just giving them 2 days to do that after he
nominated these two individuals.
So clearly, it was an end-run around the Constitution, and
an end-run around the Senate. And to me, the impression given
is that the President and the Attorney General are saying that
we know better than the Senate what is good for them, and we
know better than the Senate what rules should apply. That is
dangerous. That is an assumption of Presidential powers that,
as I say, is unprecedented, and very worrisome to me.
Mr. Cooper and Mr. Turley, let me quote from the last
paragraph of the op-ed. You say the Cordray appointment is bad
policy and an abuse of power that all citizens, regardless of
party affiliation, should condemn. That is a strong statement
with which I agree. But I wanted to ask Mr. Cooper and Mr.
Turley if they wanted to elaborate a little bit more on my
point, that the President, to me, acted in bad faith by making
nominations, and then in their own words, only having given the
Senate 2 days to act on those nominations before they allegedly
went into recess, according to the President. Of course, we
dispute that.
But Mr. Cooper, you are welcome to comment on that point.
Mr. Cooper. Thank you very much, Chairman Smith. I am not
going to characterize the appointments, you know, in any
particular way, but I will add to the point that you have made,
because I think that the real factual circumstances behind some
of these appointments are much more egregious than you have
outlined, in terms of the apparent intentionality of those
appointments.
Two of them, at least, were to fill vacancies that had
existed for months before the December 15 nominations took
place. They were vacancies that arose not by virtue of any
particular casualty, as Alexander Hamilton put it, that is, you
know, the death or the resignation of an incumbent. They arose,
because the statutory term of the previous office holders had
expired months before. And so those vacancies stayed vacant for
a period of several months.
And in an analysis which OLC offers, that stresses the
notion that the President must act, because the Senate is
unavailable, simply cannot, in my opinion, tenably be
maintained in a situation which the President himself has not
taken advantage of the clear availability of the Senate to act
on his nominations and to consider them for months on end.
Vacancies that, by the way, again, took no one by surprise. So
I think it is difficult more so than you have even suggested.
Mr. Smith. I agree with you. It is worse than I said. Thank
you for making that point.
Mr. Turley?
Mr. Turley. First of all, I would like to agree with the
op-ed as strongly as I could. One of the things I think is
important to note here is, I was very surprised by the timing
of the recess appointment. It did not have to be what is called
an intra-session appointment. In making an intra-session
appointment, the White House really created this perfect storm
of controversy. It added all of the controversial elements that
we have seen in previous recess appointments and combined them.
I do not believe that the clause applies to intra-session
appointments. They never have. There is a great amount of
literature that has strongly opposed past intra-session
appointments. What I think is missing here, when the White
House talks about the artificiality of a pro forma session,
which I address is really not up to the President to define,
what is missing is a recognition of the artificiality of the
claim of a need for recess appointments. The idea that I
couldn't have the advice and consent of Congress, so I had to
move. I had to go ahead and circumvent Congress. That
circumvents something fundamentally more critical to the
Constitution than who defines recess. It is a President who is
saying something that is facially not true. The Senate was
available for advice and consent.
When the President said in his public comments, I won't
accept no for an answer, it was a telling way of expressing the
reason for the appointment. He did get an answer. He didn't get
an answer that he liked. And I might not like that answer. But
it was an answer. That is, Congress said it would not confirm
this nominee. They can do that for good reasons, bad reasons,
or no reasons at all. But to say that in this blink of time
that you can move a recess appointment reduces this entire
clause to a blinking contest, that Congress can't have even the
smallest recess.
Now it is not that it is unprecedented. President Teddy
Roosevelt did it in seconds. He did it in seconds between the
gaveling of a close of one session and the gaveling of the
opening of another session, and moved 160 nominees. He was
wrong. That was not the purpose the clause was designed for.
And I think President Obama is also wrong. But this has all the
elements together that have been individually controversial in
past appointments.
Mr. Smith. Thank you, Mr. Turley.
The gentleman from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. I enjoy this
conversation quite a bit, because it is almost as if no one
here in the room recognizes that this matter is going to court.
And as soon as standing of the parties going to court is
established, this matter will be before the Federal judiciary
for resolution. So we can come back and review these opinions.
I particularly appreciated Professor Turley's historical
reminders to us about this process. But since Mr. Elwood did
not get a chance to respond at all, I would like to just turn
back the clock a few minutes and ask him to join in on the
discussion that the Chairman enjoyed with Messers Cooper and
Turley.
Mr. Elwood. Well, as an initial matter, I do want to
separate the constitutional question with the sort of matter of
inter-branch relations and etiquette, because I think there are
plenty of opportunities when a branch has the right to act, but
it doesn't necessarily mean that it should. And I think that it
is true, as Professor Turley said, that I think since 1823,
when the executive branch first officially set forth the
position, that the recess appointment clause applied not only
to vacancies that occurred during the recess. That is, when
somebody dropped dead or resigned during the recess, but also
to vacancies that existed before the recess.
There has been increased opportunity for a clash between
the branches. And it is true that to say people who received
recess appointments, that there has been an opportunity to pass
on them in the past. But that is a criticism that can be
leveled against the, you know, practice of recess appointments
for over 150 years, that these are people whose nominations
have been pending, and for one reason or another have
languished frequently, because not necessarily that they would
survive and up-or-down vote, but because you were able to slow-
roll people in the Senate.
So, I guess the point of my long and rambling answer is
that the criticism that is leveled at the current recess
appointment is one that could be leveled against 150 years of
recess appointment practice. It is not that particular to this
one; although, I am not about to deny that the circumstances of
this case may have made it a little bit harder to take for the
people in the Senate.
Mr. Conyers. Well, the one thing that cannot be disputed,
and I, again, refer to Professor Turley's historical summary,
is that never before in the history of the United States Senate
have 44 Senators written the President of the United States to
tell him that they would not support the consideration of any
nominee to be the director of the Consumer Financial Protection
Bureau. And it seemed, to me, clear that that was done for the
express purpose of shutting down an agency.
Wouldn't you agree? First, Mr. Elwood. Then Mr. Cooper. And
then Mr. Turley.
Mr. Elwood. Well, I think one of the things that it may
show is just that the point of the recess appointments clause
was to keep offices filled, and the Framers did take that very
seriously, as I noted in my prepared testimony. But even though
these recesses frequently lasted months and months, as
Professor Turley said, they made recess appointments when the
Senate was going to be available pretty soon. President
Washington recessed appointed somebody 13 days before the
Senate returned, which was a sign to him that 13 days is too
long to leave an office unfilled. So I think that it may be an
indication of the President's felt need to use the clause.
Mr. Cooper. Thank you, Mr. Conyers. I don't come to this
Committee with any brief in support of the Senate in this
particular instance or in any other. And, in fact, I believe
that the Senate and the President, over the course of the last
few decades, in particular, and their inter-branch disputes in
this area, have rendered the appointment process quite
dysfunctional. And I think it is very unfortunate.
But, I do come here with a brief for the simple proposition
that the Senate has the power, as Professor Turley has
suggested. It has the power to withhold its consent for a good
reason, or a bad reason, or no reason at all. That is not how I
would advocate to the Senate that it should exercise its power.
But I believe it has that power.
Thank you.
Mr. Turley. Thank you, Mr. Conyers. I would amplify that
same point. It may, indeed, be unprecedented, in terms of the
letter, although, I suspect that there have been past cases
where a letter wasn't sent, but the message was certainly sent.
But the point is that the Senators actually had that ability in
the previous session and used it. They refused to approve this
nominee.
The Constitution doesn't go into motivations or the merits
of the nominee. So, they clearly had the right to do what they
said in the letter. The question now is whether the President
has the power on the recess appointment to circumvent that will
of Congress. Here, you had advice and consent already given, in
the sense that they said, we oppose this nominee. This was a
clear effort to circumvent that.
I think the Framers would have been mortified. This is what
the objections were during the ratification convention. You had
people stand up. Now, we don't have a record, as you know. You
are a great student of the Constitution. And you know that we
don't have a record in terms of the intent behind the recess
appointments clause. But in the ratification debates, people
stood up and said, I don't like it. Doesn't this give the
President the power of a king?
The people supporting it said, no, that is not it. This is
just for that period of a recess. It is a small supplemental
power to what should guide our interpretation, which is the
appointments clause and the preceding clause.
Mr. Conyers. Thank you. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Conyers. The gentleman from
Virginia, Mr. Goodlatte, is recognized.
Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your
holding this hearing. And I share your concern about the
constitutional precedent that is being set here by a President
seeking to violate the Constitution and appoint individuals
while the United States Senate is in session. And I also want
to mention that a similar hearing was held last week in the
Education and Workforce Committee, where I serve, specifically
on the three appointments to the National Labor Relations
Board. I appreciate Chuck Cooper's testifying at both of these
hearings. And I appreciate his observations.
Mr. Cooper, I wonder if you could comment on this. You
recall in your testimony that when you headed the Office of
Legal Counsel in 1988, the Office concluded the President did
not have inherent power to exercise a line item veto. You say
you reached this conclusion only after exhaustive study. By
contrast, the formal written OLC opinion justifying President
Obama's unprecedented recess appointment was admittedly not
ready until after the appointments were made.
Does that give you any reason to worry that the OLC's
analysis of this critical issue might have been hasty, rushed,
or even results driven, even written in order to respond to
what had already been done by the President?
Mr. Cooper. Actually, Congressman Goodlatte, it seems clear
to me from the thorough going nature of the OLC opinion that
even though it wasn't released until a couple of days after the
appointments took place, the work, and the research, and the
analysis that went into it had to have long pre-dated that.
So I suspect myself, but I certainly know the facts behind
the interworkings, but knowing the Office the way I do, I
suspect they had rendered their advice on the basis of the
analysis that ultimately was released in that written opinion.
As I have testified, I don't agree with the conclusions in
that written opinion. And I tend to agree with Professor Turley
that they are, in many respects, unsound and contradictory. But
I rather suspect that the conclusions they reached had been
formed prior to the time, and communicated to the President
prior to the time those appointments were actually made.
Mr. Goodlatte. What about the question about whether they
were results driven? In the appraisal business, we have
individuals whose title is MIA. And sometimes the joke about an
appraisal that comes back with some suspect quality is that MIA
means made as instructed. [Laughter.]
Mr. Cooper. Well, Congress Goodlatte, let me answer your
question this way. I believe that the President is entitled to
the benefit of the doubt on legal issues from his lawyers that
advise him. Just as I believe that this body is, from the
lawyers that advise it. And that the Office of Legal Counsel is
responsible to give independent and careful legal advice to the
President, but it should and quite properly does seek in ways
that are consistent with intellectual integrity, facilitate the
President's desired goals and objectives. And so I view the OLC
as owing a duty of friendly independence to the President. Not
hostile independence.
That having been said, I, again, believe that this advice
rendered to the President was not sound. And I think it was
advice that, to my mind, ought not to have been given.
Mr. Goodlatte. Let me ask each of the witnesses. Article
II, Section 2, Clause 3 of the Constitution states that, ``The
President shall have the 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 the next
session.'' Doesn't the plain meaning of this clause demonstrate
that the vacancies had to have happened during the recess in
question? Under this interpretation, the recess appointment
would be necessary, because the Senate would not have had an
opportunity to act on the nominee during its previous session.
Have there been any Supreme Court decisions that have
directly ruled on the question of whether the President can
make recess appointments when the vacancy does not actually
arise during the recess.
Professor Turley has already----
Voice. Use the mike.
Mr. Goodlatte. Based on his observations that the original
meeting times of the Senate were----
Mr. Nadler. Mr. Chairman, the gentleman is not--we can't
hear him.
Mr. Goodlatte. I have the light on, but the microphone is
not working.
Mr. Smith. We have our technician in the back of the room
working on it, I think.
Mr. Goodlatte. If the panelists can hear my question, I
will just proceed. But Professor Turley was clear in his answer
that when the Senate wasn't in session for 6 or 9 months at a
time, this power in the Constitution was of vital importance,
but the meaning of it seems to have been directed at allowing
the President to act during those periods of time. I wonder if
Mr. Cooper and Mr. Elwood would address that point.
Mr. Cooper. Mr. Goodlatte, I haven't done the in-depth
research that I would want to have done, in order to render an
actual opinion to you on that subject. But I will say this. I
have read Professor Turley's testimony very carefully, and in
the researches that I have done previously, and in particular,
I would commend your attention on this question to a ``Law
Review'' article written by Professor Mike Rappaport, a
colleague of mine when I was in the Office of Legal Counsel,
for whom I have great respect, who has concluded that the
original understanding of the recess appointment clause would
require that the vacancy actually occur during the recess of
the Senate, during the intersession recess of the Senate. And
the case that I have seen made there, which I haven't
independently looked beneath and beyond, is very compelling.
Mr. Goodlatte. And clearly, since the Senate met and passed
a 2-month extension of the payroll tax the day before these
recess appointments were made, that was not the facts of this
case that we are looking at now.
Mr. Cooper. Yes.
Mr. Smith. Thank you, Mr. Goodlatte.
The gentleman from New York, Mr. Nadler.
Mr. Nadler. Thank you. Let me first ask the following to
follow-up. By the way, I recently had my house appraised, so I
now know that if the appraiser had an MIA after his name, I
should consult Mr. Goodlatte.
In any event, to follow-up on Mr. Goodlatte's questioning,
since 1823, let me ask the three of you, is there any question
in your mind that if a vacancy occurred while the Senate is in
session, and the Senate were then, without voting on that
vacancy, to adjourn sine die for six or 8 months, the President
would have authority to fill that vacancy. Is there any
question of that? Or is that simply an academic discussion
these days?
Mr. Turley. I would be happy to take it. Actually, I think
there is a question of that. If you take a look at Hamilton's
statements, and particularly Randolph's statement, they are
very clear.
Mr. Nadler. No. No. Let me say. We understand Randolph and
Hamilton, but the practice since, I think you said 1823, given
the constitutional history----
Mr. Turley. Yes.
Mr. Nadler. Is there any question in the----
Mr. Turley. I think the OLC places great importance. I have
to say, to OLC's credit, the decision in Evans put a lot of
importance on that very historical practice.
The Supreme Court has not ruled on that. And to Mr.
Elwood's credit, I agree with him that the limited cases that
are out there are not very helpful. But I do want to point out
one thing in my written testimony. I have strong objections to
the use of historical practices as substitute for
constitutional analysis.
What the OLC is arguing, in my view, is it can do an
adverse possession claim. That if Congress doesn't defend its
territory over a long period of time, somehow the executive
branch acquires that territory.
Mr. Nadler. Anybody else comment on that? Has this been an
object of question for the last 150 years?
Mr. Elwood. This is a question that puts me in the horns of
a dilemma, because I agree with Mr. Turley. I mean ordinarily,
contemporaneous practice at the Founding is kind of what
matters most to me, but I also am a big believer in sort of
stare decisis. And it has been more or less the accepted
practice between the two branches. And around 1823, the Monroe
administration, which is the tail-end of the Founding
generation, that if it happens to exist during the recess of
the Senate, the appointment can be made.
And I don't view it as an adverse possession theory. I view
it as when the Constitution is ambiguous, the practice of the
parties implementing it can help shed light on it.
Mr. Nadler. And that practice has been fairly uniform since
the 1820's.
Mr. Elwood. I believe so.
Mr. Nadler. Thank you.
Mr. Elwood. I am sorry. I don't have time to----
Mr. Nadler. Let me go further. We all know the adage that
hard cases make bad law. And I would submit that this is a hard
case, because the Senate, or at least a minority of the Senate
very clearly acted with intention and with a statement to that
effect that they intended to nullify the President's ability to
fulfill his constitutional duty, that he should take care that
the laws be faithfully executed, by saying that they would
block any confirmation of anyone to an office, unless the law
were changed in a way that they didn't have the votes to change
it. So, the President's ability to enforce the law was going to
be deliberately frustrated by the minority in the Senate. And
that is the situation that the President was responding to.
Now, certainly, they had the power to do that. Certainly, I
think from a constitutional point of view, that is not the
intention of the Framers, that the President should be
frustrated from enforcing the law until the law is changed to a
minority's liking. And so the President then acted with the
action that we are talking about. And the question then
becomes, I think, a question of pure technical law.
The Senators had the ability, under the Constitution, to
frustrate the President's ability to fulfill his constitutional
mandate. The President was trying to use his power to get
around that. And it is not nice to look at either side. And no
one really has clean hands. And one could make a political
argument as to who started the fight first, and who, you know,
threw the first punch, and so forth. But nobody is fighting
with clean hands here.
Now, my question is directed to Mr. Elwood. And that is,
okay, I can understand the argument, and I sympathize with the
argument that the Senate's recess cannot be simply understood
because it says so. It has to be understood within the context
of the purpose of the constitutional clause. Can it, in fact,
consider a President's nominee? And if the answer is no, then
it is effectively in recess for that purpose. That is an
argument that is made. I will accept that argument.
But how do you answer the question that, well, it is
obviously not really in recess and unable to function for the
purpose of considering a Presidential nominee, which would
allow the President to make an interim appointment, as
evidenced by the fact that, not the day before, but a few weeks
before, it actually passed legislation, namely, the payroll tax
extension, while in supposedly pro forma session. Doesn't that
really say it is not really pro forma session, whatever the
Senate says?
Mr. Elwood. I think the response is that those instances
are kind of the exception that proved the rule. As the
Congressional Research Service said, you know, pro forma
sessions, normally business doesn't get done. And business can
get done when something very bad is going to happen, otherwise.
Such as when the payroll tax exemption would come back in
January 1, or the FAA shutdown would continue.
But I think that it is basically no different. I mean, of
course, the Senate can come back when it wants to, but that is
something it can do even without pro forma sessions. Virtually,
all of these recesses, normal Senate recesses, are subject to
recall by the majority leader. But, you know, that was the kind
of order that was in place when Judge Pryor was recess
appointed. And, you know, even though that was a very heavily
litigated case, that argument was never made. The fact that
they could have come back if they wanted to was enough to mean
that they weren't really in recess at that time.
Mr. Nadler. Thank you.
Mr. Smith. Thank you, Mr. Nadler.
The gentleman from California, Mr. Lungren, is recognized.
Mr. Lungren. Thank you very much, Mr. Chairman. And thank
the three of you for testifying here.
Mr. Elwood, it is not a matter of law, but one of the rules
of logic is the law of non-contradiction. One cannot be A and
not A at the same time. And in this case, you have a question
of whether the Senate was really in recess, and, therefore,
making itself unavailable for purposes of responding to the
President's appointments. But on the other hand, you have the
Senate actually accomplishing legislation.
Now, either they were not in recess and were in session,
which allowed them to pass legislation, which the President
urged them to, and then subsequently signed, or they were not
in session, and incapable of carrying out that constitutional
act.
So, my question to you is: How can your analysis be
justified that, in fact, the Senate was not in actual session?
You indicated that there were statements that they made that
they would not be in session for purposes of doing any
legislative work, as instructive, as we should analyze this.
But at the same time, the President stated publically that he
was recess appointing Mr. Cordray precisely because the Senate,
having considered the nomination, would not confirm him, and
the President, quote, Refused to take no for an answer.
So, how do we arrive at the conclusion you gave us that the
President's action was, in this case, constitutional?
Mr. Elwood. I think that the thing is that the pro forma
sessions merely have the form of a legislative session. They
are not the substance of a legislative session.
Mr. Lungren. Well, how did the Senate act then?
Mr. Elwood. When the majority leader takes the floor and
says this was a pro forma session. We decided that by unanimous
consent. But now by unanimous consent, this is a legislative
session, we are going to pass a bill. I mean at that point, it
is no longer just a pro forma session. He has made it a real
live session of Congress.
When he leaves that day and they adjourn, I presume they go
back to the terms of the recess order, which say that they are
pro forma sessions only, with no business to be conducted. And
I think it is along the lines of how the Senate can always do
business. The majority leader can always call them back to do
work.
Mr. Lundgren. So it is based on what the Senate majority
leader said. Well, on November 16, 2007, Senate Majority Leader
Harry Reid announced that the Senate would, quote, Be coming in
for pro forma sessions during the Thanksgiving holiday to
prevent recess appointments, end quote. So he said it back in
2007, the precise reason they were staying in session, even
though it was called pro forma, was to prevent the then
President from recess appointments.
Is that statement that he made at that time now inoperable,
in view of the statement you just quoted him making?
Mr. Elwood. I don't know that I understand your question.
Mr. Lungren. Well, I thought you just told me that when the
majority leader comes to the floor and says we are no longer in
pro forma session, we are now in session. We are going to
consider this bill. We are going to pass this bill. That is not
only illustrative, but determinative of the nature of the
session, and, therefore, the President's ability to act in the
appointment category.
But then when I give you a quote of the same person acting
in the same manner, Senate Majority Leader Harry Reid, saying
that the purpose of the pro forma session, so-called pro forma
session, was to prevent recess appointments, that has no
consequence, in terms of his understanding of the Constitution?
Mr. Elwood. I think that the point you are making is that
that is the legislative purpose, is denying the President the
ability to make the recess appointments, and that it is the
legislative business that makes those real sessions. That is my
problem, is that I am just not 100 percent sure what you mean
by that.
Mr. Lungren. Well, I am not 100 percent sure what you mean.
I am sorry. I guess I could just quote Humpty Dumpty. When I
use a word, Humpty Dumpty said in rather a scornful tone, it
means just what I choose it to mean, neither more nor less. The
question is, said Alice, whether you can make works so many
different things. The question is, said Humpty Dumpty, which is
to be master. That is all.
I would hope that the master in this case is the
Constitution. And the words of the Constitution are fairly
specific. And I think, in fact, as Professor Turley has
suggested, we understand what the context was when this section
of the Constitution was placed there. If we are going to give
up everything to the President of the United States, democrat
or republican, to say it doesn't matter what the words mean,
that Presidents can get around it, frankly, we have ceded some
of the authority of the legislative branch.
And I would just say this. It is demonstrable that our
Founding Fathers created an inefficient governing system
precisely to protect our liberties. And we can bemoan that
fact. But the Senate is an absolutely essential mechanism to
appointment making, except in extraordinary circumstances,
which are supposed to be recess appointments, and we are making
it ordinary.
Thank you.
Mr. Smith. Thank you, Mr. Lungren.
The gentleman from Virginia, Mr. Scott, is recognized.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Chairman, I just have to comment on all this balance of
power between the executive and legislative branch from people
that want to give the President the line item veto.
One of the problems we have in this discussion is, we have
a problem, but there is nothing the House can do about it. We
can't confirm any of these appointments. And if we were to
declare this either constitutional or not constitutional by
resolution, or however we express ourselves, it would have zero
legal consequence.
Just for the record, Mr. Chairman, the records I have point
out that President Reagan made 240 recess appointments,
President George H. W. Bush, 74, in just one term. President
Clinton, 139. President George W. Bush, 171. And President
Obama, 28, so far.
Mr. Turley, I guess the whole discussion is: What is a
recess? You indicated that President Roosevelt made recess
appointments in the time between two gavel whacks. What
happened to those, what, 100-and-some appointments?
Mr. Turley. It was about 160. There was discussion in
Congress at the time as to whether they should move
aggressively against them. These were largely military
officers, and Congress decided that it would not move
aggressively against them.
Mr. Scott. Were any of the appointments ever removed,
because they were inappropriately appointed?
Mr. Turley. No. Indeed, one of the things I have suggested
in the past to Members of this Committee is that Congress
should be more aggressive, that they should create bright-line
rules as to how they will respond, regardless of the merits or
individual, to the abuse of the recess appointment.
One of the things I've suggested in the past and suggest in
this testimony is that I think that the Congress should refuse
confirmation to any intra-session appointee.
Mr. Scott. You make a distinction between intersession, and
I guess at the end of the session, you adjourn sine die for the
rest of the year. What does intersession mean? That is during
the year?
Mr. Turley. Yes. What happened here is that the second
session of Congress had begun. So, it's an intra-session
appointment.
Mr. Scott. Okay. Well, what do you call what happens in
August, when we take off for the month? We call it an August
recess.
Mr. Turley. Right. In my view, breaks in a session, whether
it is a first or second session, where Congress is sitting, is
not an appropriate basis for an appointment, but the more
critical issue here, and it sort of goes to the Humpty Dumpty
issue. This is the first time I have incorporated Humpty Dumpty
and Hamilton in the same testimony. But there is something
valid in the Humpty Dumpty reference. And that is, if you read
the OLC opinion, they state something that I find quite
chilling; where they say it is up to the President's
satisfaction as to what constitutes a recess. To me, that flips
the presumption. It also contradicts past court cases that
defer to this body to define whether it is in recess. I think
that is an extremely dangerous position to take, as we debate
this intra-session versus intersession.
Mr. Scott. But there is no length of time by which you need
to recess for it to be a recess for the purposes of recess
appointments.
Mr. Turley. Well, historically, the OLC has always looked
to the adjournments clause and said that anything shorter than
3 days, although, that is practically 4 days, would clearly not
be sufficient for a recess. The OLC sort of dances around that.
They effectively answer the question by changing the question,
and saying since we don't believe that this is real, that this
pro forma session is a session, we don't have to get into that.
Mr. Scott. Is there any possibility that the courts might
leave this up to the idea of a political question, Evans v.
Stephens?
Mr. Turley. You are absolutely right. That is a real
possibility. The courts tend to leave this to the branches to
work out. I think that is a serious problem. You know, the
courts, too often, leave this to a political process. We have
an extremely dysfunctional situation here. We have an
independent judiciary for a reason.
Mr. Scott. What did Evans v. Stephens rule? What did they
decide in that case?
Mr. Turley. In Stephens, they did say that the appointment
was valid. The recess appointment there. Although, there was
one dissent. But, also, I should note, Justice John Paul
Stevens, when the matter came up to the Supreme Court, wrote a
very rare statement in the denial of cert. He agreed that the
case was not appropriate for certiorari. But he wrote a written
opinion, which is rare, and said do not assume that this court
accepts, or at least that Justice, that an intra-session
appointment is valid under the clause.
Mr. Scott. But the majority did not cert.
Mr. Turley. He agreed with the majority, because he did not
believe that this was worthy of certiorari.
Mr. Smith. All right. Thank you, Mr. Scott.
The gentleman from Arizona, Mr. Franks, is recognized.
Mr. Franks. Well, thank you, Mr. Chairman.
Mr. Chairman, I think that Mr. Cooper and Mr. Lungren made
compelling arguments that these pro forma sessions were,
indeed, substantive. I think that you used the word, Mr.
Elwood, that these might or might not have been substantive.
And the thing that made them substantive, of course, is that a
law was passed. I mean we are lawmakers. I don't know how to
make a session more substantive than if, indeed, a law can be
passed during the session.
So, with that said, it seems to me that to reasonable minds
that that question has been answered. But the other thoughts
that have been postulated today about whether or not Congress,
or specifically even the House, has any role in responding to
it, and I would submit that there are some possibilities. And
one would be reviving the understanding that the President can
circumvent the Senate, to use a phrase, only when the vacancy
first arises during the Senate's recess. That is essentially
trying to revive the original meaning of the clause itself.
Congress could accomplish this, for example, by amending the
Pay Act to prohibit paying a recess appointee's salary, unless
the vacancy actually arose during the recess.
Mr. Turley, I note in your testimony you advocate for the
original understanding that I am discussing here, saying it
would, ``Avoid many of the controversies of modern times.'' Now
that is a professor's way of saying this would fix their wagon.
But would you elaborate on that a little bit?
Mr. Turley. Thank you, sir. Yes. I thought it was quite
surprising to see the OLC use the decision of this body and the
Pay Act as evidence against Congress's authority. That is, the
Justice Department has argued that because you allowed some of
these appointees to be compensated, you were conceding or
acquiescing to their claims as part of the adverse possession
notion that I talked about earlier. I do think you should
consider amending the Pay Act.
Also, I do think that this body's involved. Of the
adjournment's clause, both of the Houses decide whether to
adjourn. This body is intimately involved in that. And there
was a consensus between the Houses to take this step.
I will also note that regardless of your party, this idea
that it is the President that has to be satisfied that you are
in session is a very dangerous notion. Thomas Jefferson said in
1790 that each house of Congress has the natural right to
govern itself. Article I, Section 5, Clause 4 says that each
house determines its rules. Cases like Mester, out of the Ninth
Circuit, have said that extreme deference is given to the
Houses.
What I thought was really remarkable of the OLC, was not
only that all presumptions were ruled in favor of the
President, but that they believed that even the interpretation
of whether you are doing business or not ultimately will rest
with the President. That would radically shift the center of
gravity under Article I and Article II.
Mr. Franks. Well, of course, it makes all the sense in the
world to me what you are saying.
Mr. Cooper, if I could turn to you. First, let me suggest
to you that this is not just a casual discussion. H.R. 3770, I
am one of the co-sponsors, and there are many on this Committee
who are co-sponsors, does, indeed, do exactly what we are
talking about here. And so, Mr. Cooper, you testified that
there is substantial textual and historical support that, as
originally understood, the recess appointment power is limited
to vacancies that occur while the Senate is in recess.
Do you think amending the Pay Act would be a good way or a
way for Congress to require the Executive to respect the
Constitution's dictates, and/or do you think there are other
options available to us?
Mr. Cooper. Congressman Franks, I completely agree with the
response that Professor Turley has provided just now, and
believe that the Pay Act would be an entirely apt way in
amending it along the lines that you are suggesting, an
entirely apt way for the Congress to react to what it believes
and what I have testified is Presidential overreach in this
episode.
I also want to add that I think that notwithstanding the
fact that the House of Representatives has no agency in the
appointment process, only the Senate and the President, doesn't
in any way eliminate this body's quite appropriate interest in
what is occurring here, when we are talking about the
separation of powers between the Congress and the President,
and the checks and balances that are at stake here.
And keep in mind this, as Professor Turley has suggested,
the President has, with his lawyers' blessing, assumed the
power to decide for himself when the Senate and when the House
is in session, and when it is in recess, even when in
disagreement with the bodies' own determinations on that score.
I just don't believe that any court is going to defer to the
President's judgment about that, rather than the Senate's, with
respect to its determination, or the House of Representatives,
with respect to its determination. At least if there is any
factual predicate, whatsoever, for the bodies' determination.
Mr. Franks. Well, Mr. Chairman, I am going to suggest that
H.R. 3770 might be a good way for us to respond to this,
because it is still a thought in my mind that we have the purse
strings given to us by the Constitution, of course, unless the
President would somehow say that we no longer have that. And
then we would, of course, have to defer to him.
Mr. Smith. Thank you, Mr. Franks.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized.
Ms. Jackson Lee. Thank you very much to the witnesses.
And I guess my first rhetorical question is: What are the
American people to do when we are sitting here collectively,
the three branches of government, to work on their behalf?
I just have a very brief question. Professor Turley, thank
you for your work. And I just have this quick question. I am
just holding this up. Have you just constitutionally, and as a
professor who watches the political scene, as it relates to our
constitutional duties, seen a letter, written by 44 Senators,
that indicates, I think the opening lines, that they will not
confirm any nominee, regardless of party affiliation, to be the
director of a particular agency? Have you ever seen this kind
of action?
Mr. Turley. Honestly, no.
Ms. Jackson Lee. And I appreciate that. And I appreciate
your perspective. And if I could just move to Mr. Elwood to
raise a question with you.
The Chairman made a good point that this will ultimately
wind up in the courts. But let me reemphasize constitutionally,
because I think we have gotten muddied, and put recess over to
the side. The Constitution establishes, actually, two methods,
by which a President can have a person appointed to a position.
And that is by the advice and consent of the Senate. I just
want you to say yes. And it does establish recess appointments.
Is that not correct?
Mr. Elwood. That is correct.
Ms. Jackson Lee. So we are not talking about an
unconstitutional act. It is in the Constitution, defined
recess, and then advice and consent. Is that correct?
Mr. Elwood. That is correct, Congresswoman. And one thing
to emphasize.
Ms. Jackson Lee. And talk fast.
Mr. Elwood. Okay. Is that even though people say it is like
a monarchical power, that the people who have been recess
appointed are a tiny number compared to the number who go
through the Senate.
Ms. Jackson Lee. And let me just say this. I am not afraid
of what may potentially happen with my inclination to think
that this was legitimate. I know my friends have a real
challenge with the present Administration. But I think it was
important that my colleague indicated Ronald Reagan used it.
George Bush used it. Bill Clinton used. George H.W. Bush.
George W. And then it seems, at the end of his career, or his
tenure for the first term, President Obama used it, actually,
the least.
But what I want us to frame, because there is an issue as
to who has standing. My understanding is, and then you can
respond to this, that with respect to Mr. Cordray, that the
standing will come from individuals expressing a harm, whether
it is the NLRB, or whether it is the Consumer Protection. And
if you would make that point. Let me just raise this other
question, if you would make that point of doing so.
Then I want to just refer you to your own words of the
President should call the Senate's bluff by exercising its
recess appointment power to challenge the use of a pro forma
session. The alternative will likely be greater gridlock,
which, for me, is an abdication of the duty we have to the
American people.
If you would just do the standing question and the question
of how is the President to do his work for the American people,
protected by the Constitution, if we have letters like this and
gridlock. Mr. Elwood.
Mr. Elwood. It is true that unlike a lot of recess
appointments, the people who were subject to recess
appointments in early January this year are going to do things
that affect people. And as a consequence, there will be people
who have the ability to challenge whether they were validly
installed in office.
Ms. Jackson Lee. And that will be your standing basis.
Mr. Elwood. Yes. Exactly.
Ms. Jackson Lee. That is how you would determine who has
standing.
Mr. Elwood. Yes. Exactly.
Ms. Jackson Lee. All right. Go ahead.
Mr. Elwood. And as to the point about gridlock, it is true
that even though recess appointments can sort of poison
relations between the branches, it can also sort of dislodge
things. It can sort of encourage the parties to work together
more, because the realization of the President will just go
unilaterally if the Senate does not move, can cause them to
sort of limit their objections to a smaller body that they
really care about, and let the other ones go by.
Ms. Jackson Lee. In your constitutional review, have you
seen any harm being done by recess appointments egregious?
Let's look at the last Presidents that we just spoke about.
Except political disagreements. But Reagan. George H.W. Bill
Clinton. George W. Bush. Have there been a crisis in government
by those appointments, or have Presidents used them to move the
government process along, from your review?
Mr. Elwood. I do not view them to have caused a crisis.
Ms. Jackson Lee. And do you think we are in a crisis right
now, with the President's utilization of appointing these
individuals, NLRB and the individual from the consumer agency?
Mr. Elwood. I don't view it as a crisis. I agree that this
is kind of a sticky situation, and it is a novel use of the
power, because of the novel situation that the President found
himself in. But I wouldn't term it a crisis.
Ms. Jackson Lee. You think he is within his constitutional
authority.
Mr. Elwood. Yes, I do.
Ms. Jackson Lee. I have a letter that I would like to
submit to the record, Mr. Chairman. On December 9, I wrote a
letter, as the then chairwoman of the Transportation and
Security Committee, after the Transportation and Security
Administration appointee had been vacant for a year, after the
Christmas Day alleged bombing, to ask for a recess appointment,
because we could not seemingly move on that position. And for
reasons of transparency, I am going to ask to submit that
letter into the record.
Mr. Smith. Without objection. That letter will be made a
part of the record.*
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*The information referred to was not received by the Committee at
the time of the printing of this hearing.
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Ms. Jackson Lee. And I would thank the gentlemen for their
answers. Yield back.
Mr. Smith. Thank you, Ms. Jackson Lee.
The gentleman from South Carolina, Mr. Gowdy, is
recognized.
Mr. Gowdy. Thank you, Mr. Chairman. I will thank all the
panelists.
Mr. Elwood, what is stare decisis?
Mr. Elwood. Stare decisis, I don't remember what it means
in Latin. But it just means that you comply with decisions once
made, unless there is a very good reason for overruling it.
Mr. Gowdy. Right. And it is important that we have
consistency and predictability in the law. That is why most of
us chose to go into the law, because of the order, and the
predictability, and the reliability of it.
Mr. Elwood. There is a lot to that. Yes.
Mr. Gowdy. So I guess what I am saying to the former
attorney general from California's point, when Harry Reid uses
pro forma sessions to thwart a Republican President from making
appointments, it is really tough to explain to the public how
that same analysis shouldn't be used when there is a democrat
in the White House.
Mr. Elwood. There is a certain appeal to that idea. Yes.
Mr. Gowdy. In other words, the definition of recess, or pro
forma, or functionality shouldn't ebb and flow with the
vagaries of political cycles.
Mr. Elwood. No objection here.
Mr. Gowdy. Do you agree the Senate can't adjourn without
the consent of the House for more than 3 days?
Mr. Elwood. No.
Mr. Gowdy. You do not. Does your version of the
Constitution read differently than mine?
Mr. Elwood. Wait. I may have misunderstood the question.
Mr. Gowdy. The Senate cannot adjourn without the consent of
the House.
Mr. Elwood. Yes.
Mr. Gowdy. All right. And the House never gave its consent.
Mr. Elwood. That is also correct.
Mr. Gowdy. All right. Do you agree that there is a
difference between being unavailable and being unwilling?
Mr. Elwood. I agree.
Mr. Gowdy. All right. I want to ask specifically about
Terence Flynn. Not that I am not interested in Mr. Cordray, but
I think that NLRB appointments, or punitive appointments, are
even more egregious in many regards. That vacancy occurred in
August of 2010. And his name was set forth in January of 2011.
Now forgive my South Carolina math, but that is 4 months,
thereabouts. So, the President waited 4 months, this position
that is so vital to the fabric of our republic being wound
together, he waited 4 months to even put a name forward. Do you
disagree with my chronology?
Mr. Elwood. Absolutely not.
Mr. Gowdy. All right. So, January 2011, his name is sent
forth. And he is not recess appointed for another year. Now who
controls the Senate? Which party?
Mr. Elwood. The Democrats do.
Mr. Gowdy. Which means who controls the calendar in the
Senate?
Mr. Elwood. The Democrats do.
Mr. Gowdy. Are you aware of Senator Reid's scheduling any
hearings on Mr. Flynn?
Mr. Elwood. I am not aware one way or the other.
Mr. Gowdy. So, you would not disagree if I told you he
didn't.
Mr. Elwood. No.
Mr. Gowdy. So, you would agree that for a full year the
Senate was available to take up this nomination.
Mr. Elwood. Yes.
Mr. Gowdy. And yet, they did not.
Mr. Elwood. I understand that to be the case.
Mr. Gowdy. Let me ask you about the other two. Those
vacancies occurred in August of 2011. And those names were set
forth in December of 2012. Again, 4 months. He waited 4 months
to even name someone to fill the vacancies, but yet, the fabric
of our republic will unravel if he doesn't make a recess
appointment within 3 days.
Mr. Elwood. I agree with your chronology. As I noted in
both my written testimony and my oral testimony, I was just
here to talk about the constitutionality of all of it. Not
whether it was good intra-branch etiquette.
Mr. Gowdy. Well, the Senate doesn't ever have to adjourn,
do they?
Mr. Elwood. No. They do not.
Mr. Gowdy. So they have the power to thwart all recess
appointments, if they want to.
Mr. Elwood. By staying in session. Yes.
Mr. Gowdy. Can you understand how people would be vexed at
how you can never adjourn, but yet you can't define the terms
of your own adjournment?
Mr. Elwood. I don't think so.
Mr. Gowdy. You don't find that vexing.
Mr. Elwood. No. Because if you mean to stay in session,
stay in session. But you can't just say, I am in session now.
Mr. Gowdy. But that gets to my other point of this desire,
on the behalf of our fellow citizens, to have some consistency
without the vicissitudes of political cycles. When Harry Reid
says he is going to stay in pro forma session to thwart
President Bush, how is a pro forma session any different when
he does it when there is a democrat in the White House?
Mr. Elwood. Well, I thought he was wrong the last time.
Mr. Gowdy. Well, I could care less about the politics of
it. What I am interested in, I would like to think the
Constitution kind of transcends politics. And I don't like
games being played with it. And as I interpret it now, a nap
can constitute a recess, which has been known to happen from
time to time in the other body. A nap. [Laughter.]
Mr. Lungren. More often than not.
Mr. Gowdy. I defer to the gentleman from California.
Whatever the definition of recess is has to be good for both
parties. Whatever the definition of pro forma is has to be good
enough for both parties. And whatever this newfound analysis
called functionality is, has to be good enough for both
parties.
And with that, I am out of time, Mr. Chairman.
Mr. Smith. Thank you, Mr. Gowdy.
The gentleman from Arizona, Mr. Quayle, is recognized.
Mr. Quayle. Thank you, Mr. Chairman. And I want to thank
all the panelists for being here.
Professor Turley, we have heard that recess appointments
were done under President Reagan, President Bush, 41, President
Clinton, President Bush, 43, and also President Obama. Were any
of those recess appointments done during a pro forma session
that was being put forth by the Senate?
Mr. Turley. Nothing quite like this. In fact, when the line
was drawn in the Bush administration, with regard to pro forma
sessions, President Bush did respect that line, did not do
further appointments.
What you really have here is a sort of strata graphic
record, where you started out with the plain meaning of the
clause. And people like Hamilton and Randolph, very significant
figures, reinforced the plain meaning of the path.
What happened, in terms of decoupling, actually occurred
under Attorney General Wirt 4 decades later, and it was Wirt
who decoupled it. But the interesting thing, if you go back and
look at Wirt's opinion, he actually says the plain meaning of
the clause contradicts my interpretation. He says that I
recognize that the clause does read so that it only applies to
vacancies during a recess, that occur in the recess. But he
said I am going to read it according to what I think is the
spirit. That was the critical point, where we became
untethered.
Mr. Quayle. And if this is allowed to stand, I mean we have
heard that there are court cases going to challenge this, but
if this is allowed to stand, and the reasoning that the OLC has
given, saying that the President basically has the ability to
define when the Senate is in session or when it is not in
session, and set the precedent where the President can make a
recess appointment at night, when the Senate gavels out for the
day.
Mr. Turley. Yes. That is quite striking because this is not
a term that only occurs in this clause. Recess has been defined
by Congress and there has been deference to that definition
under the 20th Amendment, under the adjournments clause. What
the OLC is trying to say, in threading that needle, is that
those didn't affect another branch.
One of the things I point out is that this is probably sort
of a one-sided analysis out of the OLC. I didn't think it was
very fair, in that, basically, what they are saying is it is
what we say it is. As I point out, I have represented Members
of Congress most recently in the Libyan challenge, including
Members of this Committee. In that case, the executive branch
had a very similar situation, where we were challenging the
right of the President to commit forces to war, with shared
authority, belonging to Congress, to make a declaration. What
the White House said is, war is what we define it to be.
Now, that is obviously a definition that affects another
branch. But it did not stop the Administration from saying we
can define war, and we just simply define something as not a
war. Well, that leaves very little room for the legislative
branch, when you are defining all the key terms, and saying it
unilaterally belongs to us.
Mr. Quayle. So it says that basically the precedent would
be set that the President, if you follow this reasoning, could
make recess appointments when the Senate gavels out.
Mr. Turley. Yes. If you look closely, the OLC said the only
way that you could totally protect yourself is just stay in
session all the time.
Mr. Quayle. Back in 1987, there was an interesting maneuver
that occurred, where there was actually two legislative days
that were put forth, and one calendar day, so that the majority
in the House could be able to pass a rule that was running into
some issues. Could the President, under the reasoning of the
OLC, actually be able to make an appointment in between those
two legislative days, and not a calendar day? Could they make a
recess appointment, following this reasoning, in just a few
hours, in between those two gavels?
Mr. Turley. Well, following the OLC's analysis, they say
that it is up to the President, if he decides that you are not
functionally ready to give advice and consent, that in that
gap, no matter how short it might be, theoretically, he could
act.
Now, they say we don't address the 3-day question, because
we don't think that this is really a session. But they also say
the only way that you could entirely protect yourself is for
you never to stop doing business.
One of the things I just wanted to add is, we are blessed
with Framers who were brilliant and also practical people. It
borders on defamation to suggest that Framers would create such
an absurd and ridiculous situation. What we are detaching here
is the artificiality that we have all talked about. This
artificiality of saying, I had to act, because I couldn't wait
for the advice and consent of the Senate, which might be
minutes or seconds away. That, obviously, is not the spirit of
the clause. But ever since we decoupled this issue from the
language of the clause, we have gotten into this theater of the
absurd. And I think it is a cautionary tale that sometimes it
is better to stick with the plain meaning of the clause.
Mr. Quayle. Thank you, Professor. Yield back.
Mr. Smith. Thank you, Mr. Quayle.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized
out of order, to ask one question, to which she says there is a
yes or no answer.
Ms. Jackson Lee. Yes.
Mr. Smith. The gentlewoman from Texas is recognized.
Ms. Jackson Lee. Thank you. I read in some of your
testimony. In any event, does a Congressperson, or Congress, or
the House have any standing to pursue this in a court of law?
Mr. Elwood?
Mr. Elwood. The courts have always been pretty skeptical of
saying legislators have standing as legislators.
Mr. Smith. Is your mike on, Mr. Elwood? Thank you.
Mr. Elwood. You would think I could figure the button out
by this point.
But I think that the most obvious person to have standing
would be someone injured by their regulations or actions of
someone on the NLRB or the CPFB.
Ms. Jackson Lee. Mr. Cooper?
Mr. Cooper. Thank you. Actually having represented Members
of this body and the Senate in the reigns against Byrd and the
challenge to the old Line Item Veto Act, and having lost the
question of representational standing, I would say that I doubt
it very seriously.
Ms. Jackson Lee. Professor?
Mr. Turley. I was the last to represent Members of this
Committee in the Libyan challenge. We did argue there. I
strongly believe that Members of Congress should have standing.
But as Chuck points out, the Supreme Court has taken a negative
view of that.
It is not entirely closed off, but they are very hostile to
it. I believe they are dead wrong. That Members of Congress
have standing.
Ms. Jackson Lee. But they are hostile to it.
Mr. Turley. Yes.
Ms. Jackson Lee. Thank you. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Ms. Jackson Lee. The gentleman from
Iowa, Mr. King, is recognized.
Mr. King. Thank you, Mr. Chairman. I was going to ask the
gentle lady from Texas if she would allow me the courtesy to
listen to my questions now. But just a little facetious thought
that went through my mind. There is no such thing as a yes or
no answer in this town. We know that.
I thank the witnesses for their testimony, and confess that
it is harder for me to dig down into the nuances of this when I
read the Constitution. I think I understand the intent of the
Constitution. I think we have been fairly unanimous in our
understanding of what the Constitution says, what it was
understood to mean at the time of its ratification, what we
understand it to mean today. And the question then comes back
to: Why would there be any question that the House decides when
they are in session, the Senate decides they are in session, or
the legislature of the Congress decides when they are in
session? And I think the points that were made, that if we
allow the President, as Mr. Cooper pointed out, to assume the
authority, to declare when the Congress is and isn't in
session, that is an extra constitutional assumption, we should
be very offended by that assumption.
The only thing that I would come back to is, is if there is
a misunderstanding on this, and to me, it is very, very clear,
and it has been very well reiterated, but if there is a
misunderstanding here, it is back to the letter of the
Constitution then. And so, if that is the case, and we think
about how it might potentially be litigated with the Supreme
Court, if the Supreme Court should find perhaps with the
opinion of Mr. Elwood, then I would find myself facing the
question of how do I draft an amendment to the Constitution
that could be more clear.
And I pose that question to Mr. Elwood. How would you
phrase the Constitution to end up with a result the rest of us
believe in a fashion clear enough that you would concede the
point?
Mr. Elwood. It depends on which portion of it you wish to
address. Because it definitely has been the case that you could
just, to address what I think Professor Turley and I agree is
one of the biggest issues of longstanding for these kinds of
appointments is, that it only applies to vacancies that arise
during the recess of the Senate. I think you could just say
virtually the same thing that you did the first time, except
you just say it only applies to vacancies that arise during the
recess of the Senate, as opposed to happen to exist, I think.
Mr. King. Does the Constitution say that today? That it
applies to vacancies that arise during recess, and gives the
President the authority to make recess appointments. So, how is
that a distinction?
Mr. Elwood. Well, it at least means that you couldn't use
it to fill offices with the people that you have had sitting
around for months waiting to fill those offices. It would only
be if the vacancy arose during that time.
Mr. King. So you are speaking in a means of addressing the
unsuccessfully challenged practice of declaring vacancies to be
vacancies created during recess. And I am fine with reverting
back to the letter and the intent of the Constitution and its
origins. I would like to stay with it. If the American people
decided to reinforce this in the aftermath of all the
litigation we might be faced with here, how would we define a
constitutional prohibition to the President making recess
appointments? How would we actually say that in the English
language in a way that might stick?
Mr. Elwood. As I sit here, I think there are several ways
to skin the cat. And I don't know if that would be whether to
say that each House will have conclusive authority to define
whether it is in recess or not, you know, for purposes of the
recess appointments clause, or some other way of addressing it.
Or stating it as a prohibition on use of recess appointments
during certain circumstances.
Mr. King. Would you speculate as to whether you think the
President believes he had declared the Senate not to be in
session? Did he contemplate that?
Mr. Elwood. No. Looking at it from his point of view, I
think that he would say he is not looking behind the Senate's
own orders, that the Senate's own orders say, oh, we are not
going to do any work at that time. We are just going to come in
and bang the gavel.
And I think that, you know, looking at what the Senators
themselves said at the time, as they went out, they thought
they were going out for recess. They didn't view the pro forma
sessions as having substance either.
Mr. King. Then why were they having pro forma sessions? Do
you know?
Mr. Elwood. I think that if you ask them why are they
having pro forma sessions, they would say to prevent the
President from having a recess appointment power.
Mr. King. Exercising their constitutional authority to have
pro forma sessions to prevent the President from having recess
appointment power.
Mr. Elwood. That is the question, I think. Yes. But
technically, and this is correct, they were doing it because
the House didn't consent to adjourn for more than 3 days.
Mr. King. Mr. Cooper?
Mr. Cooper. Thank you, Congressman King.
Let us focus for just a second on January 3, 2012. The
reason the Senate came into session on that day satisfied three
constitutional requirements. Number one, the 20th Amendment
demanded it on that day. So, the Senate had to come into
session. Number two, the Senate did it because the House
refused to consent to a recess of more than 3 days. And so, the
Senate had no choice, in light of that, but to come into
session.
Finally, I would argue that the Senate came into session
not to prevent the President from exercising his recess
appointment power, but to make itself available to exercise its
advice and consent authority for the President, in such event
as some exigency or some emergency along the scale of the
necessity of passing the 2-month extension of the payroll tax
cut presented.
So there were three reasons on January 3 that the Senate
came into session. And those reasons, every one, were
constitutionally driven. And it seems to me to be really quite
fanciful to say that the Senate was in recess on January 3,
2012. But that is the necessary result of the OLC analysis.
Mr. King. Thank you, Mr. Cooper. And if I could just
quickly follow-up the question with this. Would you concede
then, Mr. Cooper, that the Senate went into pro forma sessions
to make themselves available for recess appointments, or
appointments the President might make during that period of
time, or if they were there to prevent the President from
making recess appointments? In either case, would you agree
that that would be a constitutional position of the Senate?
Mr. Cooper. No question. I do believe that would be a
constitutional motivation for the Senate to come into session.
Mr. King. Thank you. I thank all the witnesses. Thank you,
Mr. Chairman. Yield back.
Mr. Smith. Thank you, Mr. King.
The gentleman from Texas, Mr. Poe, is recognized.
Mr. Poe. Thank you, Mr. Chairman.
I know the ultimate question is: Was the Senate in recess
or not? But before we get there, a question is: Who determines
whether the Senate was in recess or in session? It seems to me
the Senate determines if they were in recess or in session. Not
the President. Of course, the President thinks they were. He
defines recess to mean whatever he wants it to be. And his
lawyers, who are his lawyers, take his position. It means what
he says it means.
And I guess the next question is: What do we define recess
as? It is back to the old, what does ``is'' mean? We have heard
that one a long time ago. I would ask this question, under the
philosophy, it is the President determines the recess between
gavels. The House and the Senate normally recess to hear from
the President on the state of the union. The Senate recesses.
We recess. And we all wait for the President to show up, and
then it is gaveled.
Under the argument of Mr. Elwood, you would think that the
President in between those gavels, he could appoint anybody to
anything he wanted to, because we are in recess, but we are all
here, ready to hear from him. I think that is a little absurd.
Whether it is a 3-day rule, or it is just seconds, the
President doesn't determine the definition of recess or in
session for the body. We do. Any more than we determine whether
he is in recess or not. I think that is his obligation, to
determine whether he is available, or whether he is in recess,
or whether he is in session, or able to work.
So, it is ironic, to me, that we are having this debate
over what the word ``recess'' means. The Senate says they were
not. They were in session. I mean I am one that does not
necessarily think that the Senate works as much as they should.
I refer to them as the siesta Senate on occasions. But the
Senate makes the determination, it would seem to me.
I think the Constitution says the House has to agree when
the Senate goes in recess. My question is a yes or no question.
Did the House agree for the Senate to go in recess, if they
went into recess? Professor Turley?
Mr. Turley. No. They withheld their approval. It requires
bicameral approval. They withheld it.
Mr. Poe. Mr. Elwood?
Mr. Elwood. That is correct. They withheld their consent to
go into adjournment.
Mr. Poe. Mr. Cooper?
Mr. Cooper. I agree. The House withheld its consent. And
presumably, and the reason that power resides in both houses,
was so that the House could insist that the Senate be available
to do its part in the legislative process, just as surely as
the Senate could remain in session, pro forma session, to make
itself available to the President for some kind of exigent
action, such as confirming a particularly important Federal
officer.
Mr. Poe. And the House can't go into recess without the
consent of the Senate. It works both ways. Isn't that correct?
Mr. Cooper. That is right. That is right.
Mr. Poe. All right. And then my final comment, and really
question is, and I agree with you Professor, I think probably
the smartest people that ever existed, to determine a
government, our Founders, were those people. I really do
believe that. Contrary to what Justice Ginsburg says about our
Constitution, I think it is the finest document ever written
for a government.
What was their intent for even putting this in the
Constitution?
Mr. Turley. Well, this is one of those situations where
there is such a significant disconnect between the language and
the history. First of all, the language. When it says, ``Happen
to occur,'' it seems to me it could not be more clear. It was
basically agreed by Wirt, when he decoupled the language, that
he was adding ``happen to exist.'' He essentially put in ``to
exist'' in the language, which is manifestly different. What
happens to exist could happen for any number of reasons, but
virtually all of them are political.
The Framers were facing a new government, where Congress
would be gone for as much as 9 months at a time. They created a
very logical and very clear clause that said during that period
we accept that the President can make these appointments. The
irony is that if you look back at the references that were made
in the ratification debates, they all express this as a matter
of fairness to Congress, because they said we don't want to
force Congress to be in session all the time.
So because you are going to be gone for this length of
time, because you had to, it took a lot of time to go to Ohio
or Kentucky by horseback, they said we are going to give the
President this authority. Randolph does a wonderful job with
this, and lays out why you would do such violence to the
balance of the power, if you were to read that out.
What is interesting is that the other guy on the committee
of detail that served with Randolph was John Rutledge. Rutledge
was given a recess appointment. And it met Randolph's test. I
will note, there is a reason why we want Congress involved,
because Rutledge was found to be perfectly insane. He suffered
from what were called mad frolics, and proceeded to repeatedly
try to drown himself in the river. That probably would have
come out in a confirmation hearing. [Laughter.]
Tthat is probably the reason why the Framers wanted to keep
this narrow.
Mr. Poe. If I may have one additional minute, with
unanimous consent.
Didn't the Framers want the Senate involved on
appointments? The President appoints them. The Senate,
Congress, the people approve it. Who rules over us? I mean that
is the original intent. And that is the rule, not the
exception, where the President sneaks in and appoints them in
between gavels. That is not the purpose. The purpose is,
generally, let the Senate confirm these people.
Mr. Turley. Absolutely. The center of gravity here is the
preceding clause. The appointments clause. That is what defines
the issue. What is happening is, this is the example of the
exception swallowing the rule, because the appointments recess
clause is a mere supplement, as Hamilton said, to the
appointments clause. It is being used today to essentially
devour the appointments clause.
It is also very important, when you read the OLC's opinion,
they missed the point that you just made. This is a shared
power. The President does not have the authority, is not
supposed to have the authority to place high-level officials
into offices. They didn't want that, and so power is shared
with the Senate. That is what does such great violence, as
Randolph would say, if you allow the recess appointments clause
to be torn from its constitutional moorings.
Mr. Poe. I yield back. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Poe.
The gentleman from Texas, Mr. Gohmert, is recognized.
Mr. Gohmert. Thank you, Mr. Chairman. And we do appreciate
all the witnesses. I had a chance to review materials that you
had submitted before. And I apologize for not being here for
the entire hearing.
But as my former judge colleague here expressed concern, if
the President can take this interpretation of a recess to make
an appointment, then it certainly begs the question as to, is
there any time that he can make a recess appointment.
And Professor Turley, we don't always end up on the same
side, but I always have great respect for your intellectual
approach to issues. And if you have been asked this, and I ask
your indulgence, but has there ever been a President who has
asserted that recess appointments could be made during less
than a 3-day recess, when there has been no need to ask the
House for authority under the Constitution for a formal recess?
Mr. Turley. Thank you, Congressman. I am happy to say we do
sometimes agree. We certainly have had many----
Mr. Gohmert. Yes, we do.
Mr. Turley [continuing]. Conversations over the years about
the Constitution.
Mr. Gohmert. I hope that doesn't scare you when we do.
Mr. Turley. The answer is no. Once we tore ourselves away
from the text, and to Wirt's credit, he said that is exactly
what I am doing. That is, Wirt said I acknowledge that the text
says this, and I am going to do that.
Once we cross that Rubicon, we found ourselves floating, as
to, it put all the pressure on what would constitute a recess.
Then there were a lot of opportunistic interpretations given
throughout the years. The one line that was drawn was the 3-day
recess, because it would make sense. You look at the
adjournment's clause. Clearly, 3 days does not constitute a
recess under that clause. It was a very logical connection. So
the OLC said we have to accept that certainly if it is less
than 3 days, it can't be a recess.
They say that they are not getting rid of that line in the
current OLC opinion. They do. That is, they make it perfectly
clear that it is what the President says it is. They also omit
some critical details. They rely on a thing called the
Dougherty opinion, which is out of the OLC. A Dougherty in the
opinion says that an adjournment of, quote, 5 or even 10 days
could not constitute a recess.
So, even the opinion they rely upon returned to that
touchstone of you can't take such a brief period, a blink, and
say they are not available for advice and consent.
Mr. Gohmert. Anyone else aware of any President who has
ever taken this position since we had a constitution ratified
in 1789?
Mr. Cooper. I would only add that there has been an
episode, which has been referred to here previously today a
couple of times. In the early 1900's, when Theodore Roosevelt
made some 160 recess appointments to the military offices,
literally between two whacks of the gavel, as one of the
Congressmen put it. And this was in a constructive recess,
according to Theodore Roosevelt. It was a shameful abuse of
Presidential power and a plain violation, I think, of the
intendment of the recess appointment clause.
Mr. Gohmert. So this President, this White House is wanting
to identify with that shameful abuse of the recess
appointments, apparently.
Mr. Cooper. Well, I have been chagrined that that episode
has been called upon by the President and by his lawyers as
authority. The Senate report that that episode yielded did say,
as has been quoted here today, that the recess of the Senate
cannot be imaginary, it must be real. It has to be a time when
the Senate's chamber is empty. But when you understand what
they were reacting to, what they were saying made perfect
sense, with a President declaring the instant of time between
two whacks of the gavel being a recess, a constructive recess.
Mr. Gohmert. But since the recess normally has to be 3
days, of course, the recess clause says if it is more than
that, the House has to concur in it. But let me ask one quick
question, if I have the indulgence and unanimous consent to ask
this question.
But in each of your opinions, who would be required to have
standing to raise this issue? I realize the Supreme Court wants
to make sure there is a justiceable issue. And then I have
heard some of the Supreme Court Justice talk about standing is
one of their favorite tools in order to prevent from having to
make a decision.
But surely, a U.S. Senator would have standing to raise
this issue, would they not?
Mr. Turley. It is actually a tough call. Both Chuck and I
have been in this situation in court. And I believe that they
should have standing. And I think a credible claim could be
made. But whenever you have Members standing claims, you start
out with a heavy presumption that they don't have standing.
That does not mean that other people would not have clear
standing. Those people affected by the judgments of the agency,
or individuals, would have a clear issue. And, in fact, a good
challenge might combine all of the above. That is, they may
make a combination of people to make sure you have standing to
bring this forward.
To me, I would be appalled for a court to, if it has
legitimate standing, not to rule on this. I know they prefer
the political branches to hash it out, but this is becoming
cert.
Mr. Cooper. Can I only add this? I rather doubt that a
Member of the Senate will be held, anyway, to have standing,
having lost that argument in a previous litigation. But someone
with standing will come forward.
Mr. Gohmert. Well, who would that be?
Mr. Cooper. Well, it will be an individual or an entity
that has been adversely affected by a ruling by Mr. Cordray's
agency or by the NRLB. They will have standing and they will
definitely bring forward.
And the one thing that really the President has done here
is that when that litigation comes forward, all the recess
appointment chips will be pushed in the middle of the table.
That is what the President has done. Not just whether or not
this was a recess, these pro forma sessions, or whether they
were true sessions of Congress, but whether or not a recess is
possible under the plain language of the clause, when the
vacancy that is being filled did not actually happen during the
recess. That is going to be on the table. Any litigator
zealously advancing his client's interests is definitely going
to litigate that issue. And so, the President, in taking this
act, has pushed all the recess appointment chips in the middle
of the table.
Mr. Gohmert. Do you all agree on that?
Mr. Elwood. Absolutely.
Mr. Gohmert. If someone is harmed by a decision by an act
by one of these appointees, then they should have standing.
Then all decisions by the appointees and all the appointments
made during the recess would be an issue.
Mr. Elwood. That is right. As Professor Turley said, he
described it as a perfect storm of recess appointment
controversies. Another way is this is kind of one-stop shopping
for addressing virtually every issue that is raised in recess
appointments litigation, if it is true. It is an intra-session
recess. It didn't arise during the recess. So not to mix
metaphors, but it is absolutely true. All the chips are on the
table.
Mr. Gohmert. And I appreciate the Chairman's indulgence,
and really appreciate you all's insights. Thank you.
Mr. Smith. Thank you, Mr. Gohmert.
The gentleman from Georgia, Mr. Johnson, is recognized.
Mr. Johnson. Thank you, Mr. Chairman. Good morning to the
witnesses.
We are all aware that this hearing is entitled ``Executive
Overreach: The President's Unprecedented Recess Appointments.''
I would suggest, however, that we have a hearing to examine the
unprecedented obstruction of the Senate republicans of the
confirmation process, and how it is hurting our economic
recovery, our efforts at law enforcement, and also the ensuring
of liberty and justice for all Americans.
For example, we do not have a permanent director for the
ATF, haven't had one since 2003. Based on this kind of refusal
to confirm agency leaders, and Federal judges, and others, some
would say that this Senate confirmation process is flawed and
plain old dysfunctional.
Senate republicans have not been shy about their goal,
which is to defeat President Obama, make him a one-term
President. I think that is pretty well known and accepted, due
to the public utterances of various republican leaders,
particularly, Mitch O'Connell, of the Senate.
Mr. Cooper, Mr. Elwood, and Mr. Turley, I would like for
you to comment on the unprecedented delays and refusals to
confirm Presidential appointees during President Obama's
administration, and whether or not this delaying tactic is
hurting America.
Mr. Cooper, you first. And be as succinct as you can,
please.
Mr. Cooper. Well, I would only say I don't think that the
delays that we are seeing now in the confirmation process are
unprecedented. I think this is a problem. And I agree with you,
Congressman Johnson, it is a very serious problem. The
dysfunctionality of the appointment process. But it is not one
that is, you know, just now coming. It is one that we have
unfortunately, I believe, witnessed growing worse and worse
over the course of the last few decades.
Mr. Johnson. And I could not disagree with you on that. I
believe that you are correct. But at this time, you know, we
are either looking at this problem or we are looking past the
problem for partisan reasons.
Mr. Elwood, what do you say about it?
Mr. Elwood. I agree with what Mr. Cooper said, that it has
been a problem for decades. The one thing I will point out is
that the founding generation viewed, apparently, even in a
space of a couple weeks, with an office being not filled, as
too much, just based on the recess appointment practices of the
early Presidents, who would recess appoint people when the
Senate was coming back in a couple of weeks. And this was when
confirmations didn't take a long time. People were typically
confirmed after 2 days, literally.
Mr. Johnson. So this is really an affront to the Framers of
our Constitution, in terms of the delay in confirming
Presidential appointees.
Professor Turley, what would you have to say about it, sir?
Mr. Turley. Congressman Johnson, it is good to see you. The
last time we saw each other, you were my opposing counsel in
the Porteous impeachment trial in the Senate.
Mr. Johnson. You did a fantastic job.
Mr. Turley. Well, I much prefer this relationship. But I
would certainly echo what was said before, that it is not
unprecedented. Although, I will add, it was Mr. Elwood, who I
think has done a terrific job and a well-balanced job in
presenting the facts and the history, but I will note that even
though a matter of 2 weeks was viewed as sufficient for an
appointment, back then there were fewer Federal offices. So a
vacancy had a much more pronounced effect upon the Federal
Government than it does today. But I certainly agree with him
that that period existed.
And I will also add that the Framers anticipated that there
would be these moments. They lived in rather rabid political
moments. They make the current Congress look like the very
model of efficiency, compared when you look back at where they
were.
The President's option is to do what he did in the Cordray
case. He went to Ohio. He rallied people in a speech. He said,
you know, this is wrong. We have an election, and you have to
vote to change it. I think the Framers viewed that as the
course, as opposed to the President saying, so, I am just going
to define this as not being a session. I'm going to go ahead
and circumvent Congress, because I can't get their advice and
consent on a nomination that I previously gave them, and they
said no.
Mr. Johnson. Well, I will tell you, even though the
Framers, during that era of governance, may have been in
practice worse than we are today, they still set forth
aspirational goals for us to aspire to.
And Mr. Elwood, if you would, how do you respond to those
who argue that these recent recess appointments to the NLRB and
the CFPB do us more harm than good?
Mr. Elwood. Well, I am not sure what all harms they are
saying will arise. I have testified earlier that I don't view
these recess appointments--although, I concede that they are
unprecedented, because the situation is unprecedented--I don't
consider this to be a crisis.
And even though it certainly, I think, sours the
relationship between the branches, recess appointments, they
can cause the branches to work more closely, because they
understand that the President, you know, may just recess
appoint people if they don't cooperate.
So I think it is not something I understand, the
relationship between the branches, as a practical matter, but I
certainly know that it can actually, in a strange way, and in
some circumstances, not all, actually promote closer
cooperation on appointments.
Mr. Cooper. Mr. Johnson and Mr. Chairman, may I have just a
moment to footnote a point that was previously made?
Mr. Smith. Yes. Of course.
Mr. Cooper. In the early days of the Republic, I think we
have to keep in mind, when an office became vacant, the job
literally didn't get done, because it was only one person. We
did not have a bureaucracy like we have today. And we didn't
have a vacancy act, which, by operation of law, basically
renders a subordinate officer acting as the acting officer to
do the functions of the now vacant office.
So it is a much different situation today than it was. Not
to say that it isn't dysfunctional, and that it is definitely
an unfortunate and sometimes costly thing for these positions
to go unfilled for prolonged periods of time. But it is rarely
the case that the function itself is not being done.
Mr. Johnson. Well, but isn't it a fact, though, that a
leaderless bureaucracy, you have a bureaucracy that is going to
do something, without leadership, can't that state of being do
more harm than good, as opposed to not having any leadership,
whatsoever? It is the same thing. But no leadership and no
bureaucracy is a little better than a big bureaucracy and no
leadership.
Mr. Cooper. I don't know how I would try to quantify those
harms, but I would concede to you that leaderless bureaucracy
for a prolonged period, with a confirmed officer, is a bad
thing for the agency, and a bad thing for the people's
business.
Mr. Johnson. Okay.
Mr. Smith. Thank you, Mr. Johnson. The gentleman's time has
expired.
I want to thank the panelists for their comments today.
This was excellent testimony and very helpful to all of us. I
also want to single out the gentleman from California, Mr.
Lungren, for staying the entire period of the hearing. He gets
the best attendance award of the day.
And with that, without objection, Members will have 5
additional days to submit questions, or additional materials
for the record.
And we stand adjourned.
[Whereupon, at 12:33 p.m., the Committee was adjourned.]

A P P E N D I X

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Material Submitted for the Hearing Record

Prepared Statement of the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Chairman, Committee on the
Judiciary

On January 4, the President announced his unprecedented
appointments of three individuals to the National Labor
Relations Board and Richard Cordray as Director of the Consumer
Financial Protection Bureau. These appointments go well beyond
past presidential practice and raise serious constitutional
concerns.
The Constitution provides the President with the authority
to ``fill up all vacancies that may happen during the recess of
the Senate.'' However, the President's recent appointments were
made at a time at which the Senate was demonstrably not in
recess.
During this supposed recess the Senate passed one of the
President's leading legislative priorities, a temporary
extension of the payroll tax cut. It also discharged its
constitutional obligation to come into session beginning on
January 3 of every year.
Moreover, the Senate itself, which has the power under
Article I, Section 5 of the Constitution to determine ``the
rules of its proceedings,'' did not believe it was in recess
when these appointments were made. As Senate Majority Leader
Reid stated on the Senate floor regarding a similar period in
2007, ``the Senate will be coming in for pro forma sessions . .
. to prevent recess appointments.'' What was acceptable for the
Constitution in 2007 should be equally acceptable today.
In fact, not only was the Senate not in recess when the
President made these appointments, but it appears that under
the Constitution it legally could not have been.
The Constitution provides that neither house of Congress
may adjourn for more than three consecutive days without the
consent of the other house. Accordingly, the Senate could not
have adjourned its session and gone into recess without the
consent of the House, which the House did not give.
Despite these facts, the President has claimed the
unilateral authority to declare that the Senate is in recess
for purposes of the recess appointments clause.
Such an astounding assertion of power raises serious
constitutional concerns and has the potential to adversely
affect the balance of power between the President and the
Congress.
Regrettably, these appointments are part of a pattern of
the President bypassing Congress and exerting executive power
past constitutional and customary limits.
For example, when the President's cap-and-trade legislation
failed to pass Congress, he had the Environmental Protection
Agency issue regulations instead.
When Congress refused to enact the President's ``card
check'' legislation doing away with secret ballots in union
elections, the President's National Labor Relations board
imposed the change by administrative decree.
And, when Congress defeated the DREAM Act, the President's
illegal immigration amnesty proposal, the Administration
instructed immigration officials to adopt enforcement measures
that often bring about the same ends as the DREAM Act.
In addition to disrespecting Congress's constitutional
authority when Congress has refused to enact his policy
preferences, the President has also ignored laws passed by
Congress.
For instance, rather than seeking legislative repeal of the
Defense of Marriage Act, the President simply instructed his
Justice Department to stop defending its constitutionality. And
the President ignored the Religious Freedom Restoration Act by
failing to give religious organizations an exemption from the
Health and Human Services' contraceptive mandate.
One of the fundamental principles of American democracy is
that we are a nation of laws. America's elected leaders swear
to follow our Constitution and our statutes even when they do
not agree with them.
With these recess appointments, the President may have
violated the constitution by disregarding the rule of law.

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Prepared Statement of the Honorable Trent Franks, a Representative in
Congress from the State of Arizona, and Member, Committee on the
Judiciary

No one questions that when the Senate is in recess the
President has the authority to make recess appointments. That
power is clearly set forth in the Constitution. Further, no one
questions that recess appointments have always been
controversial. Presidents of both political parties have made
politically unpopular recess appointments. And, no one
questions whether it can be frustrating to try to get nominees
through the Senate. Senate delaying tactics have stalled
nominees on both sides of the aisle.
But never before in this country's history has a President
made a recess appointment during a time when the Senate was not
actually in recess. Because that--to quote former Attorney
General Meese--``is a constitutional abuse of high order.''
In 2007, Senate Majority Leader Reid and Senate Democrats,
which at the time included then-Senator Obama, adopted the
practice of holding pro forma sessions, rather than adjourning,
to block President Bush's ability to make recess appointments.
The President must think that the rules he and his Senate
Democratic colleagues developed to hamstring President Bush do
not apply to him. But it is an axiom of democratic government
that the same rules apply no matter who holds office.
Thus, although the President may object to the Senate's
practice of holding pro forma session instead of recessing, he
may not simply ignore the factual realities and make recess
appointments when the Senate is not in recess. Even President
Bush, who my friends on the other side of the aisle assailed
for taking unilateral executive action, refused to provoke a
constitutional crisis by making recess appointments while the
Senate was meeting regularly in pro forma session.
The President's supporters may argue that the President
sought the Justice Department's advice before making these
appointments and that the Department advised him that the
appointments were permissible. Leaving aside the fact that the
legal memo supporting the President's appointments was
belatedly issued two days after the appointments were
announced, the President by his own words has acknowledged that
the reason he appointed these individuals had nothing to do
with the only justification the Justice Department offered in
support of his exercise of power.
The Justice Department asserted that the President has the
authority to determine that the Senate is ``unavailable to
perform its advise-and-consent function and to exercise his
power to make recess appointments.'' Yet, in making these
appointments, the President did not determine that the Senate
was unavailable to confirm his nominees; he determined the
Senate was unwilling to confirm them. In fact, in appointing
Mr. Cordrary the President declared, ``I refuse to take no for
an answer.''
Mr. Chairman, just as the President has refused to take no
for an answer, Congress should refuse to accept the legality of
these appointments. If these appointments are allowed to stand
unchallenged, they will threaten the bedrock principle of
separation of powers that lies at the base of our
constitutional republic.
By circumventing the Senate's advice and consent role, the
President is concentrating the power of appointment in the
Executive Branch alone. However, as James Madison recognized,
``[t]he accumulation of all powers legislative, executive and
judiciary, in the same hands, whether of one, a few or many, .
. . may justly be pronounced the very definition of tyranny.''

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