so that's different. but the overarching question that you are asking is whether or not the senate in its advice and consent function is required to give its consent to in fact approved. so that is the senate prerogative. .. >> a lower ability to have a presence around the world, isn't that true? >> that argument has been made,

and i suspect there is some truth to it. >> they certainly envision the constitution. they're not just some adaptation of the last, the administration's last congress. so isn't it true that it has been the practice of the senate under senator reid, sometimes simply to say that nominee is dead on arrival and go find someone else and not call for a vote? >> yes. >> isn't it true that often nominees are pre-vetted before they're put up so as not to embarrass them and, in fact, there's a whole discussion, because they so want to not have that controversy? >> that is also correct. well-known fact this occurs, and with good reason. >> good reason. so i guess, a couple last questions. motion to adjourn in the senate, i'm different body here, but it's in order here at any time. was there a motion to adjourn by the democrats issued? did they try to adjourn? >> my understanding is we would

not attend because consistent with article one, section five of the constitution we were required to obtain the consent of the house of representatives house of representatives to adjourn, it before a for any period of time longer than 72 hours. given that we didn't receive such consent, the senate was unable to adjourn for any part of time longer than 72 hours and so we continued holding pro forma session basically every 72 hours throughout that period it. >> let's talk about pro forma session. last question very quickly. every third day, who got in the chair over at the senate? was it a republican? >> normally a democrat is my understanding. >> normally are always? >> always. >> senator reid had to put a democrat in the chair to holy pro forma session every third day, and he did so? >> correct. >> thank you. i yield back and recognize the ranking member for five minutes and 49 seconds. >> thank you very much, mr. chairman. i want to thank you for bringing these concerns before us. as you can tell from my opening

statement i'm concerned that a large number of senators tried to block a candidate who is extremely qualified for post because they disagree with the law, the law, congress passed creating a consumer bureau. on december 7, 2011, the office issued a press release that stated, and i quote, my decision to oppose his confirmation by the senate has nothing to do with qualifications. i feel it is my duty to oppose this confirmation as part of my opposition to the creation of a cfpb itself. my question is, the senator's role is to give advice and consent. senators, just to be clear, you don't have any problem with mr. corker, did you? >> i don't have any personal problem with them. i'm sure he's a wonderful human being. >> you probably think he is qualified for the job?

>> i feel that he possesses professional qualifications which might well serve him well in the right of government positions. >> let me put up slide five up on the board. do you see -- gordon grigg was the white house counsel to president bush will be testifying on the next panel of this hearing. and his view is that you actually would be an unconstitutional act for senator. let me read to you what he said. and i quote but i believe use of senate cloture rule to permanently block nominations conflicts with the constitution's advice and consent clause. so, senator lee, is your message to mr. gray that it doesn't, he doesn't know the law? >> i certainly would never set. i have enormous respect for mr. gray. i can certainly from but i also consider him something of a role

model, as a constitutional scholar come and i admire his work. i'm not sure of the totality of the circumstances in which he made a comment but let me say this, my belief is that because congress is a legislative body consisting of elected officials, and those elected officials are retired in increments, especially in the senate where we have elections every two years, you have a set of laws that one body has to deal with in many instances you have members of a new congress that didn't vote for a previous law. it's not at all uncommon to have a log is created, that creates a government office in one session of congress that his subsequent congress refuses to fund. or refuses to fund part of its actions. that happens from time to time. now, you might have a senate that decides not to confirm somebody to a particular position. perhaps because of the qualifications of the individual or perhaps they have concerns

about the office or the power that that officer might wield. and i believe that it's not improper for congress to raise those concerns, raise substantive concerns about the office itself when going through the nominations process. it is at the end of the existence prerogative to confirm or nothing from and there's nothing in the text, the original understanding or the history of the constitution that suggests that the senate's prerogative to provide advice and consent to presidential nominations be the consent in fact has to be granted. >> in other words, if they so disagrees with the law, then it's your opinion that they are within their rights under the constitution to basically say i'm not going to vote to confirm a nominee, is that right? >> right. >> the underpinning law speed yes, and precisely the same respect him and for precisely the same reason that a senator

or a congressman for that matter my reviews to vote to fund a particular office that was created under a previous law adopted by previous congress. that is not only not improper but that is part of what it means to live in a constitutional republic in which laws are made and government programs are funded, only by regulate the elected officials who stand for reelection and the use -- lose election after a while. >> in addition of february 2, 20 -- 2005, one to collect me the following statement on the floor regarding the gonzales nomination. and he said, when someone is qualified, unless there is some highly disqualifying factor, we should proceed to the present request for his nomination to confirm the individual. what's your opinion on that, what he said? >> well again, i make it a point

not to speak for my college. i don't know the totality of circumstances in which my friend, senator kyl, made that statement. but i will say first of all that any senator may decide to grant or withhold his or her vote to confirm or not to confirm anyone for any reason, just as he or she is free to vote or not vote for any particular budget or appropriations or anything else. seikaly and perhaps more importantly, the fact that there is delay, the fact that there has been delayed in confirmations in every cent with every presidential administration, republican or democratic, going back decades in fact going back throughout the entire history of our republic does not and cannot ever excuse the president of the united states income his nose at the u.s. constitution. that is what's happened here. that's what we're talking about today. >> so, senators started blocking all the president's nominees because they disagree with the laws congress passes we would essentially have a form of

notification that could shut down the government and the clue is not what the framers intended? >> i'm not sure that i can agree with that statement. every congress has the power to shut down the government should he choose. subject of course to what the electorate wants. if they congress chose to shut down the government, my guess is that would be extraordinary on piper, especially if it extended for the duration of more than just a few days. yeah, congress has the power to do all sorts of things, and the fact that the senate could exercise that advice and consent power irresponsibly doesn't justify the president in circumventing those very same constitutional restrictions. >> thank you, mr. chairman. >> i think you. and if i could make a clarification for the record, ambassador gray was in the first bush administration. use of president bush but i want to make sure everyone knew he was not the immediate past and with that we recognize the

distinguished german from south carolina. >> thank you, mr. chairman. senator lee, welcome. thank you for them with us today. who was outstanding to challenge the? >> if you talk about article iii standing for purposes of determining whether a case is just in a federal court, the most likely type of party that could establish standing would be at a party agreed by a decision care and the force of law, i.e. the national labor relations board or the consumer financial protection bureau. one such an order has been issued if you have an aggrieved party, someone could in theory take that case to federal court and say i have an injury in fact, traceable to the conduct of the cfr pb, and the kind of injury who could fairly be regrettable in court. >> united states senators have standing to challenge the recess

appointments? >> there may be some disagreement on this of the authorities that i've consulted, including those based on the supreme court decision, seems to suggest that u.s. senators are likely not have standing to bring the case in the own capacity but they certainly could in all of its participate in it there is often a stare decisis, particularly when people like the decision, initially. they don't tend to talk about presidents stare decisis when they don't. my concern is whatever the analysis we have of the recess appointment clause should be the same irrespective of who the president is and what party they are in. can you talk about the historical treatment of what a recess men and, and what a better rule is going forward because it strikes me that if the person in the chair were taking a nap under the

president's analysis, he could make a recess appointment. or if you all were out to lunch for a couple of hours, what's the different between three hours in three days? so was distorted in the rule, and what's a good will going forward, irrespective of who the president is? >> that's a great question, and i, i want to emphasize the concern embedded in your question here, that the answer canceled it be that the president may decide on its own accord when the senate is in recess. if he regards to send as doing insignificant work, for instance. if he decides that whoever is sitting on the office is just going to sleep with their likely not to do any work, that's dangers. that's creates a slippery slope in which he can decide to recess appointed overnight or over the weekend or something like that and certainly can't be the case. to answer your broader question, the president has been established in recent decades a basically over the course of the last century. before the think was a little more informal, but we have had

substantial president of law over the last century. we have in the early 1900s a series of recess appointed by president theodore roosevelt, 167 recess appointments made in the seconds between the end of one congress and the beginning of the next congress, just in between capital basically. the senate judiciary committee convened a panel, conducted a formal investigation to determine what the rule out to be, and our custom and practice as it has evolved over the ending century has been based on part of their analysis. here's one of their conclusion, and i quote from the 1905 report of the framers of constitution were provided it is a real danger to the public interest and not just an imaginary one. they had a mighty good time in which it would be harmful if in office were not filled, not a constructive in deferred or into

degree says as opposed to an actual one. so in other words, that are saying you can't use an overly technical set of logic in order to reach the conclusion that you've got a recess. that conclusion was followed up by an attorney general's advisory opinion by an attorney general authority which was issued in 1921. and among other things in that report, he explained that regardless of exactly where you draw the line, he said under no set of reasonable circumstances can you infer that a recess and an adjournment lasting less than three days could be deemed a recess for purposes of a recess appointment clause. he went on to say it's probably too short even if you take up the '70s or to 10 days. and ever since then our analysis has been informed by those positions, that if nothing else we look back to those two clauses we talked about earlier,

article one, section five and article ii section two. article ii section two says the president has the power during a recent. article one, section five says in order to adjourn for more than 72 hours since this didn't have to get permission of the house. so that has evolved as a sort of safe harbor. if we don't have permission from the house or for that reason we don't it, then we're not in recess because we are having taken in every 72 hours. the fact we might not pass laws doesn't mean we can't. we get passive a significant law on december 23 and 1 of the pro forma sessions. just days before the recess appointment for me. so it is wrong to suggest as the president's of legal counsel has suggested in advising them that the pro forma sessions are meaningless for constitutional purposes here. >> mr. chairman, i have additional questions but i'm out of time, so perhaps one of my colleagues will take mercy on me later on. >> one can always hope. with that we recognize the former chairman of the full

committee, mr. towns, for five minutes. >> thank you very much, mr. chairman. and if you like to yield to the gentleman at south carolina, he is available. >> i don't think i will do that, but let me just say i really appreciate the senator coming over to share with us, but mr. chairman, i yield back the balance of my time because i really want to get to the witnesses and i really do, and i'm eager to get to the witnesses, and help my colleagues are, too. i yield back. >> i thank the gentleman for yield back. we now go to the gentleman from texas, the star fair and old, for five minutes. >> thank you, mr. chairman. thank you, senator, for being here. while i was home over the christmas holiday and enduring this timeframe, and after the president made these of plymouth, i got a great deal of

e-mails from my constituents asking how could you let this happen, and how do you fix this, what do you do. there was a real frustration but i think the american people can't on a commonsense basis that we were not in recess when we're meeting pro forma every day days, when we passed very significant legislation, the form of the payroll tax holiday that the president himself was calling for us to pass during these pro forma sessions. so my question to you is, i'm not going to get into the nitty-gritty of whether we were in recess. i think the american people, anybody with a lick of common sense gets that we were not in recess. but where do you go from here? what are our options in keeping with these people who are taking taxpayer money, making critical decisions affecting this country, and bypass the advice

and consent of the senate as i think is required by the constitution? i mean, what are some of our options here? what do we do? it's clear courts don't like to get involved in these separation of power issue. you answered questions about stating. i mean, where do we go from here? do we define the position? that will never get past unless we can bury it in some other bill. we can't impeach him, i don't think because they haven't committed any crimes. do we amend the constitution to make this problem not happen again? where do we go from your? >> first of all thank you for sharing that set of remarks about what your from your constituent. very much consistent with what i've heard from my constituents in my state which is that people are getting frustrated. they are getting a sense of powerlessness. they are feeling the sense that power that belongs properly to them, they reckon people, has been exercised. it's been taken by someone to whom it does not belong.

the president has taken power that belongs to people and it authorized -- so something does need to be done and that's why i have drawn the attention to in recent days that i have. that's what i said that for my part in my role as a senator, although i have cooperate, and happily with his present an indivisible and a lot of people with whom i have significant political and philosophical disagreements, i recognize he is the president. he did, in fact, win an election. elections have consequences, and i've confirmed most of those people who have come before me. but for me personally that changes now. my response to that, my duty to the constitution based on the oath i took just over a year ago when i took office, i think requires me to stand up for these constitutional prerogatives and to show the president that unless or until he receives these unconstitutional appointments and allows them to be considered under regular order in the senate, he's not going to get the same degree of cooperation his head. by the responses might include

an action in the courts notwithstanding the doubts surround with the senators, senders can and i anticipate many will participate in judicial action that will be brought by other parties within. i think there is some possibly the courts could have but one of the problems is the courts act relatively slowly. it seems somewhat unlikely to me that the courts will issue relief in the time that it acquired because these recess appointment will be valid only through the end of the year, and if the court acts after that it sort of water under the bridge in a sense the other option would include as you suggested options that might involve defunding these off as if certainly indicates of the nlrb, we have to remember that the president can't find anything on his own. he has to rely on congress. congress has the power of the purse to house of representatives -- house of representatives holds the power of the purse that is an option that problems arise out of the fact cfpb is embodied in the

federal reserve bank and one to look at a change in the law in the fact that we have given this office to that entity and we have given funding responsibility to an entity that is not within our funding control. these are the primary leverage we use. in addition to all those i think it's important that we make sure that this is considered in the political discussion in the upcoming elections both presidential and congressional. because we in america have to entrust that those we elect to office, particularly the chief executive officer position, will respect the limitations on the power. ours is not a government of one. and for this president to pretend otherwise is an insult to the constitution and it's an insult to the american people. would the gentleman yield? >> yes, sir. >> by the president during the appointment on january 4, not january 3, isn't it true that these individuals will enjoy a

two-year term, not a one year term? >> that is not my understanding. the recess appointments clause in article ii, section two provides that recess appointees will remain in power and to the end that session of the congress. so it's interesting, we started, we held our first session of the second session of the 112th congress on january the third, one day before the president made these recess appointments. so it's my understanding that they will continue in office, assuming they're not invalidate in some other way, through the end of the session, which will last through the end of this year. we will start a new congress january next year. >> i see my time has expired. i thank the gentleman for giving me what was left. we now recognize the ranking member of the full committee, succumbing, for five minutes. >> i'm sorry, you did. we now recognize the gentleman from massachusetts, mr. lynch, for five minutes.

>> thank you, mr. chairman. senator, i just want to say how pleased i didn't you can before the committee. i appreciate your words and your cooperation, your assistance with this matter. i do have to acknowledge though you're not under oath so this is really just a chance. it's one i am enjoying, but we do have another panel of witnesses i would like to get used with all due respect i would give back the balance of what i thank the the chair. >> that was quick. >> i can take an oath if you want me to by the way. >> you took an oath already. we think that's more than sufficient for ourselves and for the other body. we now go to -- in a second to make sure i don't leave anyone. we now go to the gentleman from north carolina, mr. mchenry, for five minutes. >> i thank the chairman. senator lee, thank you for being here. thank you for the work you're doing. the heavy lifting you're doing

in your first term in the united states sent up with that i liked you the bounds of my time to the gentleman from south carolina. >> i knew you would get lucky for me fellow carolinian. >> congressman, he has always shown graciousness towards me and i appreciate he is yielding. thank you for that. senator, how were you possibly to have vetted nlrb appointees when the names were submitted to the senate? >> thank you for raising that. with regard to two of the appointees to the nlrb, their names were submitted just right before the christmas holidays, and just days before impact, and as a result they had not gone to the committee process. they hadn't been vetted by any committee. we hadn't had any time to set any committee hearing.

and so that in and of itself ought to draw attention to the legitimacy of the procedures, the legitimacy of the constitutional analysis that led to these unconstitutional recess appointments. it really is a stretch to say the least, to say that any of these are legitimate recess appointees. and particularly so with regard to those. this underscores the point this was not justified, cannot be justified by the fact that inevitably in any senate confirmation proceeding, for any nominee there may be some delays. that happened under every administration in every congress in every senate that i'm aware of ever. and the fact that that happened doesn't mean that the constitution, that the present can just ignore the constitution. that's especially so where they were given to us just days earlier and we didn't even have time to that them. pic so you get the names of on

december the 15th, and what, two and half weeks later he makes a recess appointment and says that the sin is not doing its job? >> that's correct. >> and with respect to the republican appointee to the nlrb, could senator reid have said that for a vote? i'm not totally with how the senate works, by that name of an innocent for some time. it strikes me that if senator reid were concerned about whether or not it was important to nlrb he could've said that, and he did not say that. it as the majority of you does in fact enjoyed -- -- yet he did not. that opens up another issue which is at any given time we can even do these sorts of things through a pro forma session. we have on occasion a prude people by unanimous consent in a pro forma session. and that has been done in the past, could have been done at the time but the fact that it didn't occur hardly means that we were not available to act on

these. >> as i shared with you before, congressman, he was so gracious give me some exit time, my real concern is whatever we decide this analysis is is going to be equally applicable whether we like the president is or we wish we had another one. so it just strikes me that we have created something of a ratchet, because once you define it, it is very hard to expand but once you limit it. and it now seems to me, the rule is where going to give you two and half weeks to that our nominees and if you don't, then you're not doing your job. and if you're out for three days, that's a recess. and if we like the laws you pass, like the payroll tax extension, then you're not in recess but if we don't like what you have done you are in recess, which the political gimmickry -- the constitution really should be viewed from political games.

so can you speak to how you were in recess but yet you also pass this payroll tax extension, upon which the republic hung in the balance, if you listen to the rhetoric. how could you pass that gets to be in recent? >> well, of course we couldn't. we had to be able to act and we did, in fact, act. and we acted on december 23, 2011, to pass that into law. the president demanded congress act. the president sensibly praised the congress for moving into action quickly. he signed that legislation into law probably. he recognize the legitimacy of congress' action that within the fact they were conducted at least o on on the senate side ia pro forma session on december 23, not withstand the fact that previously we had anticipated that there might not be any formal business conducted. there was. and that indicates the fact that we were in fact open for business as we were required to

be under the constitution, not have a reserve the consent of the house of represents to adjourn for a period of more than three days. this emphasizes my broader point, which is that my concern is neither republican nor democratic. it is neither liberal nor conservative. this is politically active medical. this issue is simply an american one. one rooted in the rule of law and u.s. constitutions which we've all taken an oath. it is that we can't as an institution, as a country, afford to allow one person to exercise power that does not properly belong to him. that the people have not properly given him. and that is what happened here. so i will be just as hard on any republican president who dares tries this nonsense, because i am on this president. >> thank you cindy. >> i thank the gentleman. we now recognize the distinguished lady from the district of columbia, for five minutes. ..

thank you, mr. chairman. and thank you senator for being here. a portion of a conflict my time back to the good chairman, mr. issa. i may be senator. senator, i did want to follow-up on a couple questions.

you mentioned earlier teddy roosevelt's famous appointment. but those are specifically when the congress like gavel to gavel. in other words during the anticipated history chances -- and commented the public have that option in this case or could he have had that option to do it on january. because it was unfair in fact a moment between sessions? >> well, i don't regard doing it then an opportunity for him to issue an actual recess appointment. they should point out that that hypothetical task at a different set of facts that deals with what you might call them intersession recess appointment. >> is not one in which the court spoke? >> well, that is one in which a court has spoken. i believe you might be referring to the 11th circuit decision in that regard. >> that would be one in which the president would know the likely outcome at least

historically, right click >> perhaps in circumstances as they otherwise would support the solution that we were in recess for the purpose of the cause. that would be called them intersession appointment and this wasn't intersession. the night the president clearly waited until january 4th. it didn't comment. the opinion was the canaanite january or. with allison for thought at the school, maybe mouses unkind, but with forethought and planning, he planned to do it after january. from all indications. i strongly suspect this is not arbitrary decision on the part of the president. is a careful person who is familiar with the constitution and minds that this was deliberate. >> d.c. suspicion that the constitution hit the opposite opinion when he was in the senate that he now has this president. >> i think he got it right the first time and should have stuck

with his first instinct is >> presidents often say they chronos has been perhaps he simply grows out of the office of the summit and respect for that body. which is quite frankly my personal opinion that it's a lack of respect for the body he once belonged to. i may go through the points because of a house member, not having heard the senate they let me come over once in a while to bother you all, but that's about it. you have interesting roles that are bigger than ours. first of all, motion to adjourn is still a high standard or a low standard immediately taken. so i motion to adjourn is always in order and could in fact at any time any member could move to richer even during a pro forma session unless there was a specific exemption agreed to, right? >> that's correct. so any member of the democratic party, not just senator reid could have moved to adjourn in

order to create a legitimate recess, correct it >> that's correct. that doesn't count for the need to adjourn for more than three days, the separating the question now, yes. >> of course senator reid could have put no one in the chair in the third day, is not correct? no power could have forced him to be in the chair. >> are not similar at any court or precedent that would have led to the court injunction telling senator reid he had do that. >> so every single member of the majority in the senate, including senator reid, had the ability to create a different set of circumstances and did not. >> yes. additionally, anything past was passed by unanimous consent. >> correct. so the fact is september 25th outcome any member any member of the senate could have common taken that down. it was an affirmative decision that that agreement was going to happen. it wasn't like the you see was a

surprising people just are. >> any of us could have object to. >> you are different in the senate than the house. i know that because i work the senate and. as i understand, everyone of these you see and unless it is responsible to a senate committee there speaks to the senator makes a commitment for some reason on behalf of the senator. he seized on it. >> you have the process uphold if you will. everything starts with a hold of many with the same. >> so with these -- if there'd been an actual request a vote during the pro forma session, request for you see, that would have, could each of these appointees could have come up as a request for you see and a member would've tried show up physically and object to that appointment and senator reid held no such boat.

>> interjection could have been made. that's correct. >> the senator would've had to be there. >> that's probably a discussion for a different day. an objection could have made for a hold could've been a post on unanimous consent request without actual physical presence. but the objection would likely have triggered requirement for physical presidents. >> my bro time has expired. what that, we go to the gentleman from virginia. and before we go to mr. connolly, i ask unanimous consent -- i apologize. the democratic objections to recess appointments, which is a five-page document be placed in the record, including the junior 242120 from the gentleman from virginia, mr. connolly.

the gentleman is recognized for five minutes. >> i think the chair. in the cherries right and introducing into the record. my long-standing view that recess appointments and presidents of both parties have long been a use. i don't believe the constitution vision recess appointments being routine things were designed for a time when congress is not in session for a long stretches of the calendar. but that requires bipartisan co-op ration. it has nothing to do at this president per se. it is a long-standing institutional and constitutional issue. i would hope to find some common ground. and so i actually find myself writing a recess appointment. having said that, i listen respectfully to your point of view and i respect you. i hope you listen to mine. i believe that a statement by 44 republican senators come united

states senate announcing that they are going to try to import the implementation of the duty passed along by the constitution envisions how the law gets passed. it never envision you got a second extra constitution site of the apple ii toward its implementation when you didn't have the votes to see it. i believe that frankly doubt that are precipitated issue and you got what she deserved an cytosol about frankly for those of us who have as a chairman just indicated in introducing into the record that recess appointments as a separate issue. and so, i guess with all due respect, can you do this a review because i think it is an extraordinary thing, a priority to announce the matter what, no matter virtues of the point means, no matter facts we have to respect that a lot was duly passed and sent to the president of the united states is the constitution calls for, we in

advance or announcing they're going to oppose all appointments to prevent the implementation of that provision of the law and i just think that's wrong. when users scare squared. any vindicated manager constituents are nonplussed about this act. i would host of nonplussed that the constitutional decision by you and so many of your colleagues to sort it to the implemented love. that's my opinion and i yield back. >> with the gentleman also want to ask about the nlrb? teacher questions on the nlrb appointment? >> i don't have any question, mr. chairman. i would say the same applies to that as well. >> jetta manual back. we now go to the gentleman from michigan. >> thank you, mr. chairman. i want to think what my favorite senators for being here. i'm going to yield my time to mr. pinto. >> i think the senator for being here this morning. two points for the record.

i think he is here first because he asked to speak on the subject under. we want to hear what he has to say. secondly he's got a rather unique perspective of these issues with this background having opportunities with the circuit court as well as the supreme court has manders pending. i think your comments -- for your comments. i want to be clear. i will support what the president did. i looked at this issue. i spent quite a bit of time and i think this president in this circumstance overstep his authority. my understanding and please correct me if i'm wrong is that the senate and only the senate, not the president of the united states that has the capability to determine when the senate is in recess or disaster understanding click >> that's my understanding based on the history of the constitutional and on custom and

practice as it's evolved over the last two centuries. we are expressly given the power to determine the rules for a procedure in internal governance and we do that. >> so the president is relying on making its recess appointment on the office of legal counsel's justification nmm of the issue in their memo essentially said that the oc effect resource the president to unilaterally determine if and when the senate is in recess for purposes of exercising his recess appointment power. so my read is that the president is looking at his legal counsel's opinion that says he can decide when the senate is in recess. however, there's clear precedents in the states that only the senate has that authority. so that is problem number one with this process. the other two points i'd like to

make is that back in 1993 during the clinton administration, department of justice filed a legal brief in federal court for the district of columbia, car good enough to recess lasted for three days, a president could not make an appointment for the three days at the third point i make is in the role of 2010, then solicitor general elena kagan acknowledged before the night is a supreme court that quote the senate may act to foreclose the president's recess appointment power by declining to recess for more than two or three days at a time over like that. presidents have not in recent decades made recess appointments during intercession recesses lasting eras in three days. so there is most recent opinions and presidents that by those who would likely support the philosophies of this president would college with this

president is doing is wrong and to speak to the gentleman from virginia mentioned is that this should be about appropriate powers of the executive branch. it should not be about republican or democrat philosophies. it should be about the country and what is good for the country. i believe that all of us in the legislative body as well as executives need to adhere to the precedents and the laws and rules with top bush. without doing that, these bodies cannot game greater credibility with the country and i would submit to make sense for the president of the united states to acknowledge in the circus and that he should resolve it to reinstate the states in the process we have. >> if i can respond to that. to very much, congressman. i share your concerns and i for

you the office of legal counsel's 23 page single spaced memorandum. it is well written. it is well researched in the sense that it points out the precedents, but reaches the wrong conclusion and at the conclusion that it's at odds with the very present to which you prefer an illogical provision through which you prefer. if i respond to my bike also to respond to congressman connolly's point because they think they lead to the same conclusion here. i understand and i share the frustration that so many americans have expressed over the fact there are delays at times. sometimes long delays, sometimes delays that don't get resolved until after the congresses over the president is no longer in power. that is frustrating to those whose names are annoying to be confirmed. as frustrating as this is, constitutional government is by

its very nature frustrating. it was designed to be frustrated in be frustrated in the sensor was designed to make sure that it wasn't though efficient that we just passed was really quickly. efficiency doesn't always lead to liberty and frequently leads to exactly the opposite position. so the fact this process is frustrating, the fact that the delay has sometimes been abused even though it the prerogative of the senate to do that does not and cannot ever justify circumventing the constitution and just saying this is really necessary. this is really important. i'm therefore going to do this. at every turn we try that in the country, it has amended while and i'm determined not to allow that to happen here. i'm not about to stand idly by as this president gets established, knowing full well that occurred in unless we do something about it, it will be abused in the future. not by democratic presidents, but by republican presidents.

>> i think the senator for your comment. the >> i thank the gentleman. mr. welch from vermont. >> i just have a short statement. you know, i find this extremely discouraging. mr. gensler's rate if you want us to abide by the rules to make a passionate statement, but you know, this institution from congress and the house and senate is seen rightly by americans is totally dysfunctional and where in the process of proving a point. there is a fundamental difference between deliberation and distract the delay. that's my view and it's the american people's view. the rule is we work on the house, those are designed by senators and house members. they don't get elevated to the level of constitutional rights. they are rules that often times

they're the interest of the majority party in both bodies. the problem we are having here is democrats can't work with republicans and either body. the senate i believe is seen as having a series of procedures that have one purpose and that is to delay and not get to an answer to move forward on business that america needs to be done. it is an astonishing spec to call what we're doing in this congress and refusing to do the people's business. we haven't passed a budget and i don't point the blame that one party or the other. this is dictation just isn't working and it is had a history of the passwords enabled to make decisions. so when we have what sounds to me like a very academic discussion can i put myself in the feet of vacant district of mine who is wondering what is that we are talking about, we

have not passed a budget. that is disgraceful. two years ago when the democrats in the majority that the finger of responsibility pointed by my colleagues at our failure to do it, now republicans haven't been able at least in the house, not in the senate, haven't been able to pass the budget. select the end of the day, your legal argument. but it is not going to move this country forward whether you are right or president obama is right. so i just think we've got to move past these procedural maneuvers we create to allow us to conserve our well and make decisions in an up or down vote, allow there to be clarity for the american people were each of us stands. if they don't like about we make, they've got the opportunity to send somebody else you could do it.

so thank you for being here, but i don't think were getting anywhere. >> if i could respond to that. your concerns are very legitimate and i share. many of them. let me reemphasize that delays built into the system. part of the delay is constitutional. part is based on the rules of each body in the roles of each body are constitutionally the prerogative of each body. the president when he gave his state of the union address last week in her chamber here told us what he would like is to see our rules sheet which had a policy change in the senate that will lead to an up or down vote for each nominee within a finite period of time. that of course is ultimately a decision for the senate to make. i think that is where the debate and discussion of this ought to be. in other words, the frustration that he has the members of this body as are the american people in general have ought be

directed towards this discussion about whether or in what way the senate ip changing the rules of this procedure not say were frustrated with those rules. we are frustrated with the ways a manifest them selves and delay and we therefore want the president to ignore the constitution. the final conclusion doesn't -- isn't the natural logical legitimate product hussein were frustrated. we have to have a discussion about the rules themselves and not simply capitulate and say let's give out a president can violate the constitution if you want. >> the gentleman yields back. >> thank you, mr. chairman. i would say while i don't disagree with the gentleman relative to its focus on the legislative side on action and moving the country forward, relative to policy, it also is

equally important that we reburied that we are following their own rules. we teach our families, our children the rules are important. i get to go home on weekends to see night third-grade daughter's basketball games and there are bullets and it's a very important lesson for each of our children to abide by them. and if we simply can't do it for what is an incredibly important body for the congress and the president, then what kind of message is that running for the nation? i certainly appreciate my colleagues position relative to the legislative requirements for both bodies and i would agree and urge both parties to work together on the appropriation bills. by the way remind the senators that we did house passed a budget last year and we will pass another one this year and would love to have the senate respond. i would like to yield the

remainder of my time back to the chair. >> they certainly appreciate my colleagues yielding. what is interesting as my colleague on the other side of the aisle said your legal argument to be ready. so it is an interesting of debate. you know, what the constitution constitution -- let me ask you a couple basic questions. how many republicans are there currently in the united states senate? >> 47. >> is 47 vendors a majority of the body? >> no. >> interesting. after the 2008 election i know you want a senator, but worth their 60 democrats in the united states senate? >> yes. >> if you 60th in a senators together, do they even have to speak to the other 40 senators in the elevator? >> not much. >> lushes understand historically. he had a supermajority after the

2008 election. he was able to pass this debellis through the house and through the senate and didn't get a single vote the republicans in the united states house. it became law. this president has had a majority in the united states senate for four years. he has had a majority -- a supermajority in the united states house. let me restate that. it's 59 states after the 2008 election. so this idea he complained about the congress inaction is pretty absurd. so let me go to the cfpb. now, the president's lawyers said that there is a great risk, a litigation rest that anything the cfpb delta be challenged based on the constitutionality of this appointment. anything the national labor relations as could be challenged

legally based on the unprecedented action. you know, looking at the litigation risk in the amount of uncertainty that cruise for small businesses and the impact it has on the economy, that is sort of the net impact of this debate we are having. i know you're a constitutional scholar, but i also may represent the folks in utah who are concerned about jobs. this does have an impact on the american people in a real way. it is not some academic debate. but you reference the fact the senate defense session every three days in your pro forma session. why is the house doesn't agree to adjourn, why does the senate meets every three days? where does that come from? >> article i section five provides that we may not adjourn

without the consent of the other body for a period of time longer than three days because the house of representatives didn't grant permission to adjourn for a period longer than three days we had to continue to meet every three days. >> okay, when does the state that too, this action by the senate and practical impact? >> the last roll call vote on the floor of the senate prior to the christmas holidays was taken on december 17 as i recall. >> and so for the next almost month is pro forma session as was the house. >> said talk about this litigation risk. the amount of uncertainty these actions will create in our economy. >> well, at a time when unemployment is at around 9% and at a time when one of the things that is chilling our economy and chilling creation for the job

system certainty and at a time when americans and american businesses face regulatory compliance cost at an astounding rate of about $1.75 trillion a year, almost equal to a good tax burden of the american people, the one thing that we don't need is more uncertainty and a regulatory structure. the fact that we may -- american businesses may be subject to an order issued by the nlrb and anytime that may or may not be valid, that could be suspect in terms of their validity and therefore subject to litigation, litigation that would be cost you would want the uncertainty associated with owners, but would become absolutely necessary because in many instances it may be make or break moment for the company. >> this is exactly the kind of thing that would make her almost

dismal unemployment program substantially worse here this has real implications. this is not hypothetical interest. not an abstract problem. this affects real americans who are struggling to get by, struggling to find form programs. >> this compounds the program. thank you similarly for your testimony. just america's dumbest member of the house, you know, we always have we chafe at the actions of the senator and inactions of the senate, but that is not a new thing, it's as old as the republic itself. the senate is designed to be inefficient and by gosh, it lives up to that expect tatian. and so with that, i recognize mr. clegg from missouri for five minutes. >> thank you, mr. chairman. i really have no questions for the senator. thank you for coming today. but let me say that i do have an

observation about the process and recess appointments. let me say thank god for recess appointments. that we are able to appoint richard cordray as the cfpb. and that's necessary, we are a country of law and think about the function of the cfpb is to protect american consumers and to have to succumb to the will of the minority of senators who don't want to see the law implemented, the american people know what you're doing and pretty much, this president had

pulled the wool off of which are trying to do. we know you're trying to thwart any achievement by this achievement for political purposes. and so, let me again restate, and god for recess appointments. and also for the nlrb said they can be up and running and functioning as a full body to protect the workers in this country. so mr. chairman, i have no questions and i yield back the balance of my time and it does not require a response. >> mr. chairman, effective response. >> it doesn't require a response, mr. chairman. >> i certainly appreciate. >> thank you, mr. chairman. i appreciate the chance that we have lost any to point out that from time to time, congress will

pass a lot and then not find the office in charge of enforcing the law. it happens with some regularity. this happened when republican congresses have enacted when not in subsequent democratic congresses have refused to fund it. the fact that the allies created are not funded with a subject of full appropriations by a subsequent congress always. it is part of the democratic institution. to give you an example, in your home state of missouri congressman clay, it is urban legend at least that it was once legal to shoot a woman in missouri. i don't know whether that was in fact a statute. it might reflect the extermination order by wilbur fox indicated no more birds. i am grateful that wasn't funded, that was then executed. this is a very different kind of love and not one. the fact something is put into a one-day doesn't paternally

automatically, inextricably populate bodies to fund activities occurring pursuant to a very loud. and that is exactly what it means to be in a constitutional republic. we elect those people to pass laws to make decisions about how government is to be funded. >> my college wishes to respond. i certainly appreciate and i would say to my colleague, if the chair may say, i would enjoy reciting your quote today when we have a republican president. and perhaps that will happen. who knows, but i certainly appreciate my colleagues indulges there. but that, mr. langford is recognized for five minutes. >> thank you, mr. chairman. at senator, thank you for being here. i can understand how the present is frustrated with the senate. ensure you have even more frustration with the senate than we did even on the house if

that's possible. >> it is. every thousand days of waiting on the budget come out of the senate, where a frustrated with the senate and trying to figure out what will happen. the question resolves on to the end justify the means though. can we say cfpb is going to do a good thing so i know it's not appropriately and constitutionally vehicle, we'll get something good at the incipient to justify the means. can we do that in a constitutional republic? >> that we can't. the constitution is all about the means. that's the whole reason for having a constitution. it determines the means by which we act. no one can justify a willful disregard for restrictions of the constitution. the not who gets to define what a recess is the richer minutes? does the executive branch defined for the legislative branch with an adjournment and what is the recess or does the legislative branch to find that centeredness as well as a recess?

>> the senate gets to decide when it's in recess. >> said the president can step in the day now to clear your recess? that's correct. he doesn't clear part of the government as much as he might wish, which is probably every president may wish to be true. >> so when senator harry reid kept the senate improves on the action to prevent the bush administration from appointing people in a recess appointment and the bush administration acknowledged that by not appointing people, saying the senate has defined they are not in recess if they're not in recess. when the said rations that i don't accept the senate definition a recess, we are going to redefine recess, what precedent does that set? >> is that the new president, when they fear could easily turn into a one-way ratchet. in which subsequent presidents of both political parties will be unwilling to retreat from the new high water mark that bush's presidential prerogatives. >> that concerns me as well. the president has said they have communication from the senate and such a recess.

at the senate didn't to me in sending messages, did any bills passed at the 17th of december in the 22nd of january? any communication between the senate and president? >> s. a significant piece of legislation passed, one that was urged to pass that out with the payroll tax holiday expansion. >> writes from the present statement that there's no communication happening is not accurate. there was an indication happening. it allows for communication. it allowed for business that this is not for business purposes obviously the payroll tax extension did pass and it seemed that business to me. >> that assertion is either factually accurate or correct as a matter of constitutional law. >> to the senate have hearing for nlrb come all three them click >> note did not. after two there is no time or they could even possibly communitarian. >> not only was there not even a release of the names, not even the possibility of a hearing.

vegetate it's a recess appointment, this was interesting under vice attempt earlier. you have enacted on them, this is a matter of while you're at it time, i'm going to just put two people in office for the next years. >> that's correct. i have a letter from contractors are they to enter into the record. let me read what statement here. not only from the association of builders and useful this radical nlrb antiworker can't antibusiness section further damage prospects of investment job growth, but questions about the analyst rb is the authority on site ambiguity at a time when we need it the least. they stressed him its consent disputed into the record. >> that objection. >> has serious issues which i hear from you as well because of the precedent they set, it sets a precedent that a precedent at some feature they can reach into the senate and a time when they are in recess and when they are

not in who we can appoint and we cannot and extend in a jittery time. to get two years. with this precedent, as it stands i now see anything in the way from sun's future memorial day weekend. the president saying he's not communicating over this long weekend. i'm going to build a record across the country in the for the next two years and you can't stop me. you see anything that would stop this? >> logically a very short half indeed from the loc memorandum, justifying her these recess appointments in the kind of recess appointments to describe according over weekend. enough of that ideal back. >> one quick question. mr., service be rated in terms of disapproval. who would have or could have, not the 44 for 47, who can't have in fact hold hearings, particularly the ellerbee, who schedules those? >> the committee.

>> the committee is held by? >> democrats. >> did they schedule a hearing on appointing his? >> at least now but there's back to the two nominated on december december 15. >> and who could have scheduled the vote on the first one? >> democrats in the senate. >> it wasn't the 40 for the stock that. >> gentleness time is expired. i yield myself five minutes for the first question. senator lee, i appreciate you being here with us and your leadership on this issue. my colleague from oklahoma concluded with the main focus of my questioning and that's a precedent here is pretty dramatic if we do not undo what has occurred. it is my understanding the department of justice memorandum that in us and said the president has a unilateral authority or ability to decide

when you are the senator is unprecedented in this sense. if that's your understanding as well? >> yes, i work for precedent precedent anywhere and i had in the memorandum or any other serious unawareness identifying any other presidential recess appointment occurring under this set of circumstances. the mac in your testimony you emphasize this isn't about partisan politics. this is about the institution, senate and probably most importantly, checks and balance is found wisely, included in the constitution and protect the the american people from the nasa tyrannical rule. and that that under these dead here because today obviously the partisan nature of washington in the media's focus on that kid may be shipped the focus here from truly about the constitution being upheld. if we are not diligent in

ensuring in this case the constitution, we set a precedent as the gentleman from oklahoma said kawai just in this instance did they pay you adjourn to adjourn on a thursday was the plan of coming back monday in the president, whoever that office in the features they hate america session and i cannot point to the number i choose. that would eliminate checks and balances and advice and consent. >> that's exactly right and that's what the founding fathers had in mind when they considered and decided against giving the president unilateral authority to appoint nominees without senate confirmation because the people will think we have a thinking too much towards monarchy. we were getting away from a system of anarchy and great britain. we didn't want one here and this is why we did this. you're actually right in suggesting this is a slippery slope and in the future regardless whether it's republican or democrat in office, this could become a problem that could lead to the

rendering and nobody of the senate's confirmation prerogative. >> i certainly respect my colleague statements about his opinion that the sentence politically motivated minority members, republican members in blocking even if that was the case, although the fact that there's not even a hearing, met to nominees, that even if it was a case, that would be prerogative of a senator and ultimately, the public would decide whether that's a responsible approach or not. but it's still the constitutional right and prerogative of the senator to block a nominee for whatever reason they choose and ultimately voters will decide whether they're responsible in the conduct engaged. but it's not the president's prerogative to say i'm going to use that authority and

unilaterally to what i believe, what i wanted to. so i can want to thank you for his leadership on the issue in your constitutional expertise that is so important to this debate and the focus of this is not a bipartisan problem. it's about constitution being a palette and not allowing it to maddock waffled precedent to that could have a lasting indication for the checks and balances of our governing process in american america. but that ideal to mr. ahlberg for the purpose of the question. >> thank you, mr. chairman. and thank you, senator lee. we appreciate you being outspoken on constitutional issues seven portends. with noel intent toward you in your service because i sized that i appreciate your dvd. but it has been said much by those of us and members of the

people how frustrated we are but the do-nothing senate. a literal do-nothing senate. a thousand seven days without passing the budget, without dealing with for the 30 those we have sent for jobs purposes than listening to some of the cynical pandering to some of my colleagues on the other side of the house but we are not doing anything with jobs. it is frustrating. when i go back to me districting hear frustration of many people who are frustrated not completely democrat, but with republicans, with the saw that things are getting done. it is challenging to take it to what we are attempting to do it. i can certainly surmise how the president might feel when he sees his senate not providing affirmation to this appointment, confirming them and letting them go on with what is purpose that, what is intended processes about. i can understand not.

but here in the people's house, we understand more maybe than any other branch what that means, that we are given the pleasure, privilege, honor and duty of representing the people according to some more than just wins and wishes. i'd like to say to the people back in my district at certain times and i'm not thinking clearly, we will just go on and do it ourselves. but the constitution doesn't love that. you made that very clear. senator lee, could you explain to us as clearly as possible why there is an important process called confirmation that only the senate is given to do and what important outcomes that has for the people of this great country under the constitution established? >> executive ranch officials, particularly in this day and age ended reticular these nominees.

pole position that we had enormous authority. modern formats authority and in some stand, somewhat regrettably in my opinion wholesale policymaking authority that can almost be likened to the authority be wielded legislatures. regardless of how you feel about underlying statute to get enormous policymaking authority to executive ranches they wield tremendous authority, as two federal judges who will select to go through the confirmation process. said the founding fathers felt it was absolutely imperative that these nominees received in instances -- not instances where it is the recesses for the cause, the rubberstamp of the least one house of congress and for whatever reason they chose to give that to the senate and because they did we take seriously our rule to make sure the president's nominees get credit, to make sure any who do not have a port of those voting

in the senate don't get confirmed and joe move on. i think the best way i can summarize my answer to your question is just to say it's important because that's what the constitution requires. even worse frustrating, even where it doesn't make sense, even where it might toward a check is that our president, which followed them. and we set set a dangerous precedent because it are willing to ignore them for one purpose or another for political convenience of the president or someone else, we ourselves remain vulnerable and every other area. we've relied on the two should protect our free speech and everything else come every other one of the right that can be found in the constitution. we have to onerous procedures of slow growth won't be there for us when we need them because we always need them. >> we always see them in the senate unlike the house at least originally intended represented the states and abroad, brought

concern, not just individual people, but it brought concern for the whole future of this great country as an undivided state and peoples together. when i hear the president and the date of the union address talk about we need to get this done and if you would do a do it. i think it is being acted out in expressed in this process here of non-recess recess appointment stepping down on the constitution, committing a constitutional crisis and denigrating the body that is response for confirmation, oversight, care for what this country needs and making sure we don't have a monarch. i know my time is expired, but it certainly appreciate your commitment to the constitution and affirmation today. thank you.

>> seen no additional questions, i think the senator with one closing question. comment. we will have one more. but before we do that, just quickly i suspect there is a reason that the founding fathers gave you the requirement for advice that they intended you to do a lot less than you are doing with people's work in the house. i might just mention that they didn't expect you to screw around with the preparations quite the way you did. but having said that, i just wanted to ask one quick question. if we wanted it the president wants up or down vote on every one of his appointment that a timely fashion, would it be equally fair for you to consider every vote of the house that we send over that dies in the senate and for us to consider every senate and its form that

comes over the senate, isn't it sort of that entire bucket of it is the way it is, not the way would like it to be quiet >> yes. the fact is governments are made up of individuals, especially in a representative government like ours. individuals have opinions and those in the case of elect officials are based most frequently on the opinions of those they represent. we do have a country in which people disagree paper not always going to have agreement. so yeah, it is true if you take the same logic that would go into the same of heavy will change with regard to prompt automatic consideration of all nominees parsing logic may have vote and consideration by the house was that legislation and vice versa. >> i [chanting] at me now will get to final question if you attempt to give us five more minutes. >> thank you, senator.

gentleman from arizona, dr. azar. >> thank you very much. this brings a point of reference that this isn't the only thing that you may have seen because it seems that we've seen these rules when they want them and then we disdain them when we choose to avoid them. are there any other thing seriously in this this administration do besides his appointment at the congress do, dilation of the constitution was in regulation? >> i've added number disagreement with this administration on matters of policy and constitutional interpretation. images focus on two or three. went out with the president's decision to engage the united states and something i consider a war it would be a without a declaration of war from congress here that is a congressional prerogative. article i section eight not only could you not get the declaration from congress, but he didn't even -- he sort of

advice a few leaders in congress as the jets were on their way to undertake that action, but never got a declaration of war. i wasn't real pleased with that. was i pleased please with the president's decision to sign legislation that i read as undermining the fourth, fifth and sixth amendment rights of individual americans that can be read as i read it to give the executive branch the power to detain indefinitely even u.s. citizens. without trial, without a formal grand jury indictment in right to counsel based on an allegation they become enemy combatants. he signed not while protesting it. i disagree with his decision to sign it. i certainly disagreed with the policy and constitutional analysis that went into the passage and signing by the president of the affordable care

act and i disagree with the constitutional analysis outlined in this 23 page memorandum written by the office of legal counsel. very good lawyers and they did the best job that they could. they came to the conclusion that is wrong. >> says senator, so the checks and balances are relatively so, are they not? >> yes. so you have the monarchy looking not to push something for word without having a means to hurt did pretty quickly. >> that's right. and the fact that it is for this by design. that is how we prevent the undue accretion of power to chief executive, which the founding fathers knew presented some danger to individual liberty in america and that's why we split up the power to chief executive. every time our federal government has expanded and

every time the authority of the executive has expanded at the expense of the congress and every time federal authority has expanded at the expense of the state, we've always had one, and saying, a president, presidents like woodrow wilson, ashley woodrow wilson carried in the lead up and aftermath of world war i, who have said look, these are desperate times and i've got to be able to act and i can't be slowed down by the select the body who doesn't want to do my will is quickly if they want them to. if you look back to the area, use the individual were violated when the government expanded at the expense of the states. the president's authority expanded at the expense of congress. we need to not make those mistakes again and again and again. this is the kind of thing if left unchecked will easily turn into another one of those mistakes. >> i caution my colleagues on the other side of the aisle.

i hope they remember that tomorrow we have a special guest. i'd like to yields about of my time. >> i think you, senator for how generous you have been with your time this morning. two things and i'll shut up and let you take the remainder of the time. i assume these payments are held 12 months from now, 18 months from now. but the practical impact of having a year and housework of litigation that has been undone. and if you would please consider along with your colleagues like-minded or otherwise in the senate, seeing if you do have standing to stand up for the constitutional process. >> rate, thank you congressman gowdy. the first impact will be the parties will have undertaken a significant effort in litigating validity of words issued by the nlrb in the cf bb. hopefully no one company will have to litigate words issued by

both entities, that anything is possible. in addition to the x and and the delay related to litigation, these companies and other companies, even those who may just be anticipating an order, but may not receive it in time. will inevitably have to avoid making the investments we desperately need in order to create jobs. it is almost impossible to measure, to quantify in any precise sense the amount of economic loss that will come from this. but one thing which i can be sure it's lawful, and it will be significant. and so, this is yet another reason why we shouldn't be doing this. sometimes my wife tells her children, just because you can do some doesn't mean that you should. perhaps the president can do this and get away with it for the time being as a matter of rob political power and will.

but the fact he can do that doesn't mean that it will no longer survive constitutional review. i don't believe it will. and more importantly it doesn't mean that you should. there are established procedures that go along with recess appointment power. it's fair, but he needs to follow the practice and procedure to make sure it doesn't follow the rule. you can't let this exception swallow the rule. and that is the risk here. history that's not the unfit individual senators. that is not the important thing. he's doing this at the expense of the people who are living in an economy that is depressed, job creation is low and actions like this that creates so much uncertainty in the marketplace. you have my assurance that i and my republican colleagues will continue to explore an attempt to exhaust every available option including everything available in court. i've been advised by some

experts that is very unlikely we individually would be able to establish standing. but we know it is inevitable and it's true those subjects to the rules left left standing at a minimum will participate in those actions. if you would like to do that. >> the gentleman's time has expired. see no one else, senator, what you've done for us is especially appreciated. members of the house or senate give so much time to answer questions in their area of expertise. so, please have our gratitude and tell your friends they are always welcome. and with that, we will take any of the 10 minute recess while they set up the next panel. [inaudible conversations]

, >> the committee will come to order. we are pleased to have an extremely distinguished panel. i will introduce you from my left to right. first we had the honorable steve grade, currently associates here in the district had mr. gray served the white house counsel during president george h.w. bush's administration and as ambassador to the european union

during president george w. bush's administration. mr. andrews said partner at mayer brown with clients on a host of financial services in his testifying today on the half of united states chamber of commerce. mr. michael gerhardt's director for the center at the university of north carolina school of law. mr. david rifkin is department and cochairs appellate practice and served as justice permit firm at the white house and cochairs appellate practice and served it just is firm at the white house in the george h. debbie bush administrations. mark firm at the white house in the george h. debbie bush administrations. mark carter is partner where he advises clients on labor and employment lot. mr. carter of experience litigating before the national labor relations board pursuant to committee rules, all would they fix that members of congress will be sworn in before they testify, so i ask you to please rise and lift your right he is. do you solemnly swear or affirm

the testimony about the truth, whole truth and nothing but the truth? to record reflect all witnesses answered in the affirmative. we are pleased to recognize you for your opening statements. i'm sure all of you perhaps the dumbest before. the lights mean what they traditionally do in life and with that we recognize ambassador gerhardt. >> mr. ambassador, thank you for the chance to testify. we just heard an extraordinary tutorial on senator the covering almost every aspect of this issue of constitutional practical, so i'm going to try to keep what i say to a minimum since there's very little i could add. one of the historical points as far as the cf bb is concerned, there are many better constitutional at the lack of oversight silicon sand without a confirmation process for

bypassing or ignoring the confirmation process provides even months -- even last oversight. as a practical matter, what has happened here and what will happen with the opinion is that what the class has done is basically establish the basis for eliminating any need to comply with the confirmation process. what we have here as has been discussed in senator lee's testimony, not a delay, not an action, not the senate lollygagging, but a situation where one nominee was considered and addressed by the senate and rejected albeit by filibuster, but the reason doesn't indicate anything different would have happened if he was on an up or down vote.

.. and so all agencies are under some -- that have openings are under some uncertainty. we don't know the litigation impact of what will occur.

the opinion as has been deserved mentions that there are litigation risks. i don't recall a single instance when i was in the council where we had commissioned the opinion that cannot saying this is a litigation risk. i don't recall that ever happening and that is a red flag but it certainly does set into the high uncertainty. anything that these agencies to with of these appointees. regulatory uncertainty is a problem. we don't talk about it that much. but in my experience in the business community representing clients having been in the business myself, there's nothing more damaging than uncertainty, not knowing what the rules of the road are going to be. and for people subject with a very broad jurisdiction, people subject to consumer protection bureau extraordinarily broad jurisdiction with no

accountability by the political branches no accountability by the white house we've been over no accountability by the congress and no accountability by the courts which are required to dever to of the rulings of the consumer bureau. there's going to be amazing uncertainty that results from what has happened here. it just is unprecedented in my view. i want to just close by making a couple of personal remarks. i of course watched over this and why the white house counsel would ball was on the receiving end as an appointee with bush 43 and i was recessed at the legitimate three week recess because of senator reid i wasn't recessed because president bush thought it couldn't happen. at the time i was frustrated by it and they made me a special

envoy i want you to know. i was a special envoy, but i never felt as frustrated as i was that anything constitutional was being done by senator reid. i have a lot of other of ejections to how he tried to block me but not the actions he took in the senate. not very much. >> mr. chairman, ranking member, think you for the opportunity to testify on behalf of the u.s. chamber of commerce and the hundreds of thousands of businesses that the chamber represents. the chamber strongly supports the goal of enhancing the consumer protection but we are extremely concerned that the recess appointment is actually going to have the opposite effect reducing the consumer protection creating confusion and uncertainty for businesses that want to comply with the law and unposed a necessary cost of the legitimate businesses. rather than focusing on the constitutional issues which i agree with the ambassador has been discussed i would like to

focus on these consequences for the consumers for businesses and for the economy of the judicial determination that the appointment of the director violates the constitution. and i think it's important to understand that the dodd-frank act prior to the appointment of the director some of the powers of the bureau could be exercised by the treasury secretary and these included rulemaking under federal consumer law that predated dodd-frank very important like the truth in lending act of the credit reporting act on the mortgage disclosure act conducting the supervisory examinations of banks with assets over $10 billion taking enforcement actions in that category and prior to january 4th, the actions taken in the bureau's name referenced this power and presumably were approved by the secretary of the treasury or his designee is. now of course all of the bureau's actions are going to be taken on the directors authority and if that is held illegal all of the bureau actions including

those that previously could have been taken under the treasury secretary's authority will be in politics. so as a result of the recess appointment what previously had been power to exercise some of the bureau of 40's has been replaced by significant uncertainty with respect to all of the bureau's of saugerties. to take an example, the remittances rule that is going to go into effect on february 7th and that the bureau just issued could be challenged on this base even though it could have been issued in the secretary's authority of the recess appointment hadn't occurred and the same is true of the mortgage underwriting rule that is now being finalized by the bureau so you have a situation where actions that would have been lawful couldn't have been challenged on the of 40 basis before january 4th are now going to have a significant cloud over them and we believe is a very strong chance the courts will find them on constitutional, find the recess

appointment unconstitutional. if that happens with is the effect? the answer is clear all of the bureau's actions will be invalidated. and the practical effect is just as dramatic as the legal effect. there is a possibility of the gaps in the consumer protection. punishments the bureau imposed on defrosters everybody agreed were ripping off consumers will be overturned. the regulations such as the one i mentioned will be avoided. actions that could have been accomplished unlawfully by the bureau acting under the treasury secretary's authority were the bureau working in tandem with the ftc and other agencies will be sent back to square one. second, confusion and uncertainty for the legitimate businesses what they want as ambassador brace made clear in the rules of the road will have the opposite. if the courts declare the appointment invalid should they comply with the rules that applied before their director was appointed? should they comply with the new

standards even though they are now questionable? with the director's appointment invalidate who is going to provide down to the cabelas to the business they do? there's going to be a prolonged period of uncertainty. finally, the duplicative compliance cost the they become invalidated and businesses have to go back to the restructure operations to comply with the old rules that means unjustified and excess of cost and that is money that the businesses could have used to create new jobs to expand their operations come something that our economy needs. so the overall effect of the recess appointment is to put at risk significant consumer protection actions that would have rested on the firm of 40 and the potential consequences are going to hurt consumers, businesses and the entire economy. thank you and i look forward to answering the committee questions. >> thank you for the opportunity to be here today. i greatly appreciate the

invitation. at the outset, let me just make two quick personal comments if i may. first fall as a constitutional professor, have to tell you that there is nothing more special, no greater honor than there is for me to be able to participate in a hearing like this, so i am grateful for that to get the same time i speak for myself today and of course for no one else and not for my institution. nonetheless, let me at least say that as somebody who teaches a the university north carolina school of state for the record that mr. gray is a north carolina treasurer so i hope that you will allow me that. of course i also understand you've got my written statement and i don't want to go back through that in any detail. i want to take my time today to focus on a couple of issues the first one of which has to do with major questions that have concerned this committee and of the people and that is the question of whether the time during which the president acted to make his recess appointment

was in fact a recess in the constitutional sentence. let me point out for the record what we haven't said so far. to begin with, courts generally treat that action with a presumption of constitutionality. second, it should be noted that virtually all authorities agree that a recess is not a fixed time and the president of the united states has an independent judgment about whether or not there is a recess constitutional sentence. moreover, almost every authority, and i think almost every president has agreed that in exercising judgment about questions like this the president is entitled to take what we call the functional approach, functional analysis that is to take the competing considerations into account, and that is i think the president of the united states has done. at the same time, the president within has understood that if in this circumstance we assume the break that he counts as a recess

is not the recess and the senate in fact has a power through the pro forma sessions to completely nullify the recess appointment authority so in the sense the president i think has acted sensibly and soundly to defend his own prerogatives. beyond that, i think the memorandum from the office of legal counsel provides one basis for his actions is perfectly sound document. it notes for example that over history presidents have taken a functional approach to determining whether or not they should exercise this power. beyond that, the document notes that this is not the first time there's been a disagreement between the president and whether or not there is a recess. it also notes the courts generally speaking are very reluctant to interfere with the exercise of judgment in this context. all of which leads me to think that the president's caisse is a sound one and a credible one. beyond that, we had before us a

question about the president's duties under the constitution. recall if the president takes the oath to take care to enforce the law we faithfully no doubt in this case the president considers if he didn't act there would be laws left on unforced that he is obviously trying to do what he can to put into the implementation. we've talked a lot about the uncertainty today. but i think that it's fair to say that the uncertainty doesn't just go in one direction. there are a lot of americans that suspect to our uncertainty about what is happening with the national labor relations board. what's happening with the consumer financial protection bureau. and they are concerned about what happens if they are not enforced. i suspect the president to call those concerns into account and determining on the balance that the time was right for him to act.

last, i would just want to emphasize that if we look into the past, we will find generally speaking the courts that don't under turn and like those that we are talking about in this case i think the doctrines that pertain to the controversy the timing of the lawsuit are all such that it is highly unlikely that these recess appointments will impact be overturned. but i shall also point out that the constitution provides the check actually to checks on the recess appointment of 40. one is that they are temporary. the other is the man who made them as publicly challenged. so i think we should keep in mind this of checks and balances when we talk about the constitutionality of what has occurred in the circumstance. thank you. >> mr. rifkind. >> mr. chairman, remember cummings, it's a pleasure to be

before you -- [inaudible] speaking on my own behalf -- of like consider to deal with a number of other individuals unconstitutional use of visas appointment by the president. first, then as the indication with most separation of power disputes, they transcend the immediate circumstances and agencies involved. i'm not going to repeat to the prediction that you heard that the courts will not do so much to the professor gephardt but not overturn the appointment as such but what basically nullified, hold will and avoid all of the regulatory products that would have been put out by the agencies and therefore would accomplish nothing useful. i'm not going to talk about the

national regulatory uncertainty. i'm going to touch with the constitutional implications which as somebody that cares about the constitution are most important. the most important problem here is that the president's actions put at risk congress' rights and prerogatives and the most important when of course and we heard about it earlier today is the scope of the congressional power to determine the rules of its proceedings until now and it's been assumed that the congress alone can set the terms of its session and evaluate the compliance and the rules. the president's approach effectively strips the power from congress claiming that he may look past the congress's judgment and determine for himself the legal effect. what i would want to tell you is that approach would involve presidents of both parties to cast doubt when nearly any congressional actions and in the process tip the balance of power away from the article 1 oracle

two. now we've heard a little bit of a discussion this morning about how that would work in the context of appointments. the president india canst of the entire executive branch. we have made believe reese has a planned bense and therefore at this rate, this very important check and balance that the framers place in the senate. but, let's talk about the legislative power, the power to pass legislation as such. let's forget about appointments for a second. the president else we all know is a partisan point in the legislative process, but he doesn't have an absolute veto. the presidential vetoes can and have been overwritten by the majorities in both houses. if the presidents function approach the president for example might take the position have not a quorum in the senate and as we all know much of the senate legislative business is done without the koret over that matter without even a vote being taken by the unanimous consent in that respect there is nothing particularly unusual about the

performance sessions said the president can take the position that legislation was unlawful and therefore can be disregarded with impunity and without invoking the need to veto it. another area where the same problem can occur and the president can determine for himself with the congress in recess concerns the so-called pocket veto. as we all know the constitution provides the bill passed by congress and not signed by the president it becomes the law within ten days of the bill being submitted to the president's acceptance unless congress by its adjournment is the return of the bill in which case the bill lies. therefore he can in effect pocket vetoing to the los nation by painting the political price. now, i've heard a little bit of a discussion today. let me say first about the legal opinion because it eliminates

the broad point in going to make. with all due respect it is a list opinion i've ever seen. the first 18 pages go through the president but nobody is disputing the analysis in ages 18 and 19. it is entirely come close reach. basically what animates this opinion is you could somehow -- the president is entitled to the recess appointment. the recess appointment is a gap filler available to the recess. it can arrange for itself to be in constant session 24/7. the president doesn't have the power to secure the given number of recess appointments more respecting the congressman cummings and his colleagues. the president has a right to populate the executive branch with people he finds congenial. aye chollet sympathetic to serving in the branch of the senate wishes to disapprove or not vote in the president's nominees, the president will be

very lonely. that is perhaps unfortunate, but that is not a reason to work in the constitution. there's a great deal at stake and we are talking about the greatest in the eyes of executive power in history and it's amazing to me that people were very critical of the previous president in this area. it seems to be quite silent now. thank you. >> thank you. mr. carter. >> thank you, sherman isi and a ranking member cummings to testify before the committee today. as the direct consequence of the appointments some members richard griffin share the glock and terrence flem on january 4th, every administrative decision and every administrative rule or regulation implanted by the national labor relations board will be subject to the appeal or attack. the vulnerability will necessarily impact the agency's ability to accomplish its primary mission of promoting industrial peace and stability in the labour relations and

minimizing the likelihood the labor strike will negatively impact the interstate commerce in the united states. as recently as january 26, the chairman of the in to nlrb told the associated press reports that the nlrb would push for new rules to give unions a boost and organizing members. the chairman is quoted as stating we presume the constitutionality of the president's appointment and we go forward based on that understanding. the german's reference to the constitutionality of these appointments is a critical issue. as we have heard today the appointment of the three visas members is not constitutionally sound the actions of the nlrb will be altered verisign sifry decision, rule, regulation or official action of the agency will be subject to legal challenge on that basis. this is because of the june, 2010, united states supreme court opinion called the new process versus nlrb.

the new process employer appealed from the adverse decision by the nlrb with the court of appeals. the argument was with the they could issue an administrative decision with two members resolving the case. the statute contemplates a call full contemplate member one of whom is the chairman. section three be permits the board to delegate its authority to a panel of three members. when the administrative decision in the new process was centered there were only to individuals in place of the board, the chairman and one member. in its decision the supreme court held in order for the nlrb to issue a viable solution at least three individuals must compose the border itself. it is axiomatic in a decision of official action taken by nlrb composed of the individuals is ultra barras and cannot be

enforced. the court rendered this decision despite the fact the board result almost 600 cases and appreciating the argument that it's had the desire to keep its doors open. the court concluded that the statute did not permit the agency to come up with, create a tale that would end only weblog to the kuhl wag the dog but wag the dog after the dog had died. the federal courts will necessarily hear the argument that the party is appearing before the nlrb had been adversely treated by the wagging tail of the deceased dog. if the courts ultimately conclude the recess appointments of the board or accomplished unconstitutionally than the decisions of the regulators and the agency issues the result in adverse impact of any party are vulnerable under the president. if the recess appointees are not validly appointed the and the decisions and regulations

emanating from the board is currently composed are actually only being issued by the two individuals, german pierce and member hayes. if only to persons comprised the board their action as ultra terrorist. the obligations of this agency to strive to accomplish its mission should not be taken lightly. the agency is created by congress. and it does not and should not seek to enforce or a stance in the private rights. rather it is a public agency that was created to come up with, protect the public welfare which is inextricably involved in the labor. the supreme court of the united states has held the board as a public agency acting in the public interest not only any private person or group, not any employee or group of employees is chosen as the instrument to ensure the protection from the describe conduct in order to remove the obstruction to the

interstate commerce. the consequences of the recess appointments of the members through no fault of their own other than ever litigation resolved by the agency and with regard to every rule or regulation implemented by the agency during their tenure anyone who these lawyers to challenge the action may under the due process feel regardless of whether those challenges are successful or not the agency's the five mission to minimize the labor and to remove the obstruction to the commerce will be frustrating. >> thank you. i will recognize myself for the first round of questions and follow-up with mr. carter. how did the nlrb only have the two members at that time and the decision? >> at the time of the due process the senate was continuing with of the pro forma sessions and was impossible to

make any recess appointments. >> to your knowledge the executive branch issued some sort of a statement on that challenging the ability to have the pro-forma sessions at that time? >> i'm not aware of that. >> ambassador, you are pretty significant to today's hearing because you had the questions before you you reach different conclusions. could you tell us a little bit about how you could think again and agree with a decision, is there any way that you could agree to the decision made by the council on behalf of the president allowed these extraordinary events to occur particularly as to the two or three people, two of whom hadn't even been given time to be considered by the senate?

>> well it is held in the theoretical sense of the office of the council in the department of justice and they cannot with this ruling which i don't think we would have permitted because as i said earlier, it acknowledges the litigation risk but we would have said no that's not good enough give us an answer that doesn't throw the whole thing into the dark hat. so for that reason alone, i think that i would never have allowed this opinion to issue in the form that it issued. beyond that if you look at the foot of 13 it is disingenuous in my view it says we have never taken the position that there is any lower limit to the time necessary to justify the recess appointment. in of the four years i was in the white house actually, the total of 12 years watching and then dealing directly with the appointment of this kind never

once was there any hint that the time would be less than three days. certainly even when i was in the white house not less than two or three weeks it hadn't gotten down to the limit and there's plenty of the record to suggest that it is three days and of course we have the constitution giving the house of 40 to refuse the recess shorter than three days. but the replete litigation red flag in this opinion serves me a great deal. >> no, we earlier herb and from the personal knowledge and hope the house did not grant set permission to be recessed the house has now been waived that we no longer have that authority how do you square that? how does the house lose its constitutional authority to have to acquiesce to the senate going into recess and vice versa? >> that is one of the infirmities of this appointment

saying that, and i know there's a difference of opinion from the professor at my alma modern. >> but he would have been updated. >> i would have been better than mine was. no, i just don't understand, mr. tournament, how anyone can say that the president has the power to decide when you or the senate is not in recess. >> that's the question that i will beg for all of you. the senate is not the only question here. isn't the question whether or not the house's per of kidder guaranteed in the constitution was pre-empted by the decision of the senate was somehow acting not available i could understand that if it were a session or not but how do any of you square the house not acting as

constitutionally we have to allow avery says even if that were vacant day after day after day would it be true that the house ultimately has an equal share in determining whether or not there is a recess to this minute you are absolutely right. the opinions would disingenuously claim the constitutional language that you are talking about in the section 5 we've leaves deals with the relationship between the two houses of the two parts of article 1. so, you may not be in recess for purposes of the inter article 1 relations but you are somehow in recess under the functional analysis article to be really think it's an indefensible position and by the way we sometimes think the senate is in recess when we send bills over there. i made that clear to senator we that we often wonder what they're doing when they send them over and they die. but is in the sifry st -- i

would like for anyone disagrees very straight question of the constitution and whether or not the house gave its permission for the recess. >> there's not much of original founding in the history and explaining why the section was created but clearly it is created to ensure that there is a continuous and agreed upon functioning of article 1 as a branch. so it is therefore the reason let me also say the following and i mentioned in my remarks you have an independent injury by virtue of the president of the constitutional behavior quite aside from the senate confirmation power he has effectively vitiated your power to deal with your peers in the senate because it may be an important bargaining chip in the future procedures and the problem with the the presidents analysis it has no limited meaningful principle and you mentioned this point in one of

your questions the president can say in a pro forma session today i like what you did, you passed the payroll extension and you are not in recess but in the next pro forma session when you were operating at the same standing order exactly the same opportunity by anything because you didn't do anything you are not in session you are in recess. the same can be said about any of the senate sessions. >> my time is expired but i want to make sure all witnesses got to answer. if you might have a different view. >> quick responses. the first is to remember what it means to say the president has an independent judgment about the constitutional meaning. it's not to say that each of the other branches don't have their own respective say and his is something that bind you but at the same time i think what it means to say is he doesn't feel bound by you or you're what your independent judgment may be. the second thing that is occurring in this debate is sort

of the two trains were ships passing in the night. essentially i think what the senate and perhaps the house has done is they've made a decision to place. with the president has done is decided to put the substance of the reform when it comes to making the decision in this particular circumstance. >> a thank vision plan for his opinion and i am glad i have a different all modern. mr. cummings is recognized for five minutes. >> thank you. on may 2nd, 2011, 44 republican senators sent a letter to president of the united states to the objection regarding the consumer financial protection bureau. the republican senators did not express concerns regarding the qualifications of a particular nominee for the cftc for to position rather than the gang of the 44 republicans objected to the fact that the dodd-frank act is now the law of the land and

that the consumer financial protection bureau would be able to protect consumers from unscrupulous mortgage services, paid a lenders and debt collectors once the director was installed. now ali would like to point your attention to slide number three and here is what those republican senators actually stated, and i quote, for too much power would be vested in the csb without any checks and balances. accordingly, we will not support the consideration of any nominee regardless of the party affiliation to be the director until the structure of the consumer financial protection bureau is reformed. mr. gephardt, in your opinion does it raise concerns in such a

large block of wood declare so openly that they are boycotting the constitutional confirmation process even for the highly qualified candidates? >> i think my reaction is these senators are free to express their judgment and this size may be somewhat significant in that they comprise the minority in the senate but the same time there are all sorts of checks and balances not just across branches but through the branches and i think because the freedom to make their judgments we. as the statement suggests what the what is reform of the law that's already exists in was of the president's job isn't to enforce a law that hasn't yet been passed. the president's job is to enforce a law that is already on the books. so i think that is partly what he is undertaking here is to do

what he can to implement to make possible the full list implementation of the agency or the bureau function. >> not in your written testimony at the presidents recess appointment you stated and i quote the persistent obstruction of the nominations to both the nlrb and to the sea of beebee forced them to consider the appropriate responses in all possible harm arising from this pirko to act as well as the failure of the senate to act on any of his nominations and the ensuing harm to the american public and to the enforcement of law. looking at the slide on july, 1920 within the republic quoted thomas of the brookings institute saying senate republicans insist a legitimately passed all be

changed before allowing it to function with the director of the modern-day form of the modification there is nothing normal or retain about this. but mr. gephardt, do you believe president obama is constitutional in making the recess appointment to the bureau? >> i do, i stated that in the written statement as repeated earlier today. and as far as the comment is concerned, and it reflects the kind of checks and balances we have. this is a dynamic process and this is exactly what we are seeing today the rate of the checks and balances in the operation this is what works. you can pass a law but i think as senator lee points out there are various things that can be done subsequently if people choose differently. it's important to understand if it is all done within the process and i think the president acted in that process.

>> now if we see the director hadn't been filled the bill wouldn't be able to do its new powers to protect consumers to the mortgage servicing pay lending and debt collection practices does the president of a duty to make sure that the consumer protections enacted by congress are executed? >> i think the answer to that is yes he does have a duty to do that and i think that is partially not just constitutionally obliged on his part, but this is where he might also say or think there's a lot of harm that's done from the fact i can't get this implemented and he's trying to address that so he's constitutionally entitled. >> with a gentleman like additional time to ask a question? >> thank you for the additional time. spread the gentleman has an additional 30 seconds. >> are you aware of any instance where a large group of senators

vowed to the president a wood block any nominee to a federal agency unless changes were made to the agencies enabling act? >> that is a great question and i have to say i cannot think of anything of the top of my head but that may not mean very much. >> thank you mr. chairman. linus senator byrd. i'm sure there is a quote somewhere on the topic. with that we recognize the gentleman from south carolina for five minutes. >> thank you mr. jarman. i want to thank the giunta man from oklahoma for his courtesy. is there a definition of the recess depending upon which party is in power? >> i think the answer would be no. >> one of the good things about all is hopefully it provides order and predictability for those. so what is the deutsch definition of the recess for the future republican presidents? >> i think it's actually pretty much the same.

to the mind the president here is against a backdrop. we have more than the opinion it's expressing judgments about the recess. there is for example the 1908 report in the committee that essentially says of the president may treat as a recess a period of time in which the senate is unable to receive for act on a nomination. islamic let's analyze that for a moment. the two nlrb names were given on the 15th. and they were recess appointed on january 4th. do you think that now two and a half weeks is enough time to demand the senate act on something? >> that isn't my judgment call to be made. >> to you think of the president were to conclude two and a half weeks was the senate to act on something that that would withstand constitutional scrutiny? sprigg if you're asking me -- yes, i think the answer is going to be yes, because i think this falls within the discretion of

the president. >> so, two and a half weeks. what about the length of time in terms of recess because ten days according to do is too long. can the recess be less than three days? >> i think as a practical matter the answer is to be yes because that is with the president is using here. >> can't be less than one day? >> the answer may turn out to be yes. let me point out that the fact that something may be constitutional doesn't mean you have to do it. >> i agree. the constitution says you how shy of the power. they don't have to do it. so they might conclude my practical matter that he as an opportunity of recess appointment. speck on in trying to get a sense of if our country were to be fortunate one day to have a present from oklahoma that would be good fortune. >> if the senator on a lunch break or to gain knap, as has

been known to happen from time to time, is that a sufficient length of time by which the president can use his recess appointment? >> again practically speaking he can make a judgment and perhaps most people would make a judgment that these are not recesses for obvious reasons. >> we are talking about the pro-forma sessions and that raises -- >> this to my next point. how can the payroll tax cut be effective if they were on recess. >> i think the answer to that is by that time when the president makes this judgment he obviously has concluded that the senate is not in the position to act on these nominations and he thinks >> how to the act in a way that wasn't given in a timely fashion? >> they did it on december 17th and they didn't have the proper paperwork. >> let me remind you with the

recess appointment will cost. the president the full of all vacancies come so there are vacancies created for one reason or another. and i think under those circumstances he may be able to choose. >> do you feel if they had a two-hour recess in mind. >> i don't know what they had in mind, but i think they didn't have a fixed period in mind. as mcveigh envisioned for hours. >> again i don't think that they were thinking at that level of detail. i.t. phase out the extent they did dress is not a fixed period. >> what we are talking about here is the circumstance in which the president like most approaches this issue in a very practical way, balancing the competing considerations. >> speaking of the practicality he referred to in this embolden as being a bench and having his credibility undercut because he was a recess appointee.

see you think this same analysis would apply to is recess appointees that they are damaged and have less credibility. >> union damaged politically? pos nsa i'm not sure. but i think what happens is of course there are the constitution and politics, virgil the time and in a circumstance like this or the president makes a judgment it won't have the constitutional ramifications. spirit you keep using the word judgment and i and chongging to get to the bottom of law is because it constructs people they can and cannot do. so i'm not interested in as much judgment as the wall going forward. is there any time limit associated with recess? >> i think the answer would be probably yes. because i think you have to put all this into context.

spigots -- i think is a matter of context and with the practicalities of the moment are. the president is making that judgment to begin to keep in mind the present it's not just on the text but the recognition that the recess is in a fixed concept and beyond that he is also making the determination the based on the law that allows you to come first in a the text the gives this authority and the recognition that the senate may be able to vacillate his power. >> i'm out of time if i could have 15 seconds to ask my final question and i promise this is my final question to the estimate unanimous consent without objection the gentleman is given 15 seconds. >> you mentioned joe smith. are you moved it all by the fact that the senate is controlled by the same party that controls the

white house and the third nlrb republican appointee was never given a hearing, was never scheduled a hearing by the to maturity date to democrats in charge of the senate because we would be in a seclusion that you don't understand and wait until a now takes place and then go ahead and make a recess appointment. >> i would say this with all due respect. the politics are not my concern. i try to look at it from the vantage so the parties involved which. spearman guice thank the gentleman. we recognize the gentle lady from the district of north spec mr. gearhart, i'm not going to give you any mall school hypothetical sort worst case a

-- i still go over there to teach once a week. i look first to the written flood vice president received from the office of legal counsel because the office of legal counsel is considered i think by most of us to be the least political office in the justice department that has the job of that office is to keep its president from getting in trouble, and if someone were to put out some words that i asked the stuff to get from his analysis following the senate under the recess appointment clause by holding performing sessions with the inconsistent, both of the purpose of employed and practice in analogous situations.

now this opinion ceased to raise subornation powers. question to read that me ask you, since i'm not congress but it's constantly looking to the framers with a duty to the framers intended the congress to overturn bylaw? why -- to confirm an appointee to run an agency. do you think the framers have that as a possibility of mind? i think that the mevel with all respect is a perfectly good example of the kind of work one gets which is not just the

nonpartisan but they like to look at all of the sites and come out with their judgment. in terms of your question i think they've told us what they think of that circumstance when they set up the constitution. obviously they are made a certain way in compliance with article i. but there may be other factors that come along the way, funding and other things made through the law but in terms of modifying the law, one chamber of commerce doesn't have the authority to notify the law. they are made through compliance by the clauses. >> i was intrigued. i always want to look to see what is the other side say. so i wanted to see what the former office of legal counsel had said under the comparable circumstances. now this president is known for

his patience and somewhat sacred assessed for his patience, particularly with this congress. here let's take the office of the consumer bureau. the response to one of the most important responses to the most serious economic crisis in our lives least the lifetime of many of us victimized millions of americans. the agency hasn't been functioning as a full agency because there hasn't been anybody that needed. it's one thing to be patient. it's another thing to become the wamp whimp and to attend to the laws vanished in the face of a congress which simply refuses to what had largely been done in

the past. looking to the prior legal counsel, the staff found the two former assistant attorney general's john ellsworth and the former deputy attorney general who both subscribe to this statement. the senate cannot constitutionally word that president's recess appointment of power through the pro forma sessions. the president should consider calling the senate's bluff by exercising his recess appointment power to challenge the use of the performing sessions. this president appointed a, did not in fact move forward that the senate disagreed with. all right, he says to the senate, here's another 1i have for you and the senate says all right, with somebody from the appointed and i tell you what,

we disagree with the underlying law that this appointee is to administer. it seems to me the notion of calling the senate to bluff comes into play at some point, and i like to know your view of that. if the president simply allowed this to go on indefinitely. instead of finally calling the question, take it to court, do what you want to. but i'm calling the bluff now after almost four years in which this particular bureau hasn't been able to function. estimates with the gentlelady yield for just a second? did you mean to say four years in this agency? >> all almost. >> dodd-frank was a year ago. >> i stand corrected on the time that the point remains to

respect you have an additional 30 seconds. >> i whimp the gentleman for putting into the record the correct number of years with ever does and whatever the staff finds i'm sure will be the case. the point i made by introducing this is it had in quite exhaustive and even members of the prior administration who held this office said at some point somebody is going to have to, quote, call the senate's bluff. that is what is done here and i ask for your response with respect to that to let it go on for another two or four years covered long it might have taken. >> at opinion reflects the fact they are not uniquely partisan that's to say there's a sort of why the solid ground that's operating but to directly answer the question i think that the president faces a solution where he knew if he didn't affect

there would be harm that would continue to occur, that the consumer financial protection bureau would be left unable to perform its functions and that would leave in his judgment the american people so that's what he's looking at there. he could look at the others attrition and say affect what might be. clearly in his judgment he didn't think there was as much harm by acting he thought he would be producing some good that isn't an unreasonable stance to take so it would have arms to build up over time and kendal law to dillinger enforced. >> i whimp the gentleman and yield five minutes to the gentleman from oklahoma and would ask him if he would yield for 15 seconds. >> i absolutely would. >> one thing i've seen a pattern of today is every question seems to be about the consumer financial protection bureau and nothing about people whose

applications arrived in the senate after they were sworn in. >> thank you mr. chairman and that is where i want to land on. it's interesting to me that a lot of the conversations about could this be permissible is there a person out there somewhere obviously the statement for the bush administration there was an individual but consider this the bush administration didn't take that of vice. they took the advice of office over that and said that isn't appropriate. with this has done is for the political expediency of the president to make him look tough to fight against the allegations that you've been weakened in the past he has to get the election and look tough like i'm going to force things down the road so i can look manly that it opens up all this litigation and reaction suddenly goes to court and will cost millions of dollars so he can politically look better in the campaign but this will direct all these cases for years

now in litigation. it's frustrating to me we have to sit in discussed in a murder the issues of litigation when this was a settled issue two years ago. i go back to the issue of the new process steel with the solicitor and the arguments i've pulled up he looks strictly at the chief justice roberts during the oral arguments before the supreme court and the chief justice roberts discussing that nlrb and the bankruptcies and the recess appointment power doesn't work why? to which he responds, this is the obama administration deputy solicitor general who response back to the chief justice supreme court to recess the power can work in the recess. i think the office has opined that the recess has to be longer than three days. it seems clear to me this isn't an issue of the recess appointments and those the president of the power to do

recess appointments? he absolutely has the power. this is not a recess this is a constitutional issue. this is an issue of can the executive branch to find for the senate when they are in recess and when they are not. this is the power of the mark to reach to the legislative branch and say you are in the way i'm not going to declare you in recess and put in anything i want and on top of the to drop their names on the 15th of december and then to say that it's been long enough to weeks later if we did for you all this time i'm going to go ahead and put them in place seems absurd. while we can discuss the issues of, cftc and the politics of the panamax in reality the biggest issue that to the presidency is the nlrb case. if the president has some power to ignore the advice and consent of the senate, and if he can in one day drop in a name and before the hearings aren't unscheduled over some weakened in the future where it has been

a opined already over the lunch break cannot declare another to indication in the senate they are in place in january and ignore the advice and consent effort in two years and cancel all vacancies why can't a future president some january over a weekend fill every single court? all of them? and say this is my recess responsibility. the president has been set over here to read the was ignored by the senate. the courts have upheld it. what would slow down the president from doing that. anyone is welcome to answer that. i may take some different opinions. >> let me say nothing would prevent this from happening. in fact i mentioned my remarks i would fundamentally recast, not just the constitutional balance, but it would enable the president to put into office people who otherwise wouldn't get the confirmation for the reasons of partisanship. you really couldn't have an executive branch comprised of the political who've come in and

are only going to be there in the limited term and to the president's bidding and feel completely unaccountable. estimates of the advice and consent is gone to this gimmick it is completely eviscerated. in of the approach aside from the fact that it is not bound in the text. it has no limiting principle and the notion which tend to disregard the appropriations or the statute that house leaders of the time that prevent agencies from spending to the president can say i don't care there's a statute on the books and appropriation that says epa cannot do something but i don't care i'm going to use the money. there is no difference. >> we recognize the gentleman from massachusetts mr. tierney.

>> whimp all of you. i think that we've gone over the constitutional aspects of the constitution and i think it's been a lightning at least for me and my colleagues as of on that. i thought i would take a different look about and steadily from the constitutional issue directly to the ambassador, you obviously look at this from both sides given your recess appointment on that basis and also your white house counsel position. back in march of 2005 there was an article in the line that reported a statement from you and i will quote i believe the use of the senate cloture rule to block the nominations conflict with the constitution advice and consent clause. do you remember making the statement? ..

i take the point that of course people had gone to forms that, but it was rejected by filibuster. it was rejected and the opinion doesn't say that recess is appropriate to deal with the filibuster issue. i don't think the filibuster appears anywhere in the council

opinion. to the recess is not rejection. and there is contemplation and dodd-frank that the legislation provides specifically the two old member of things come at the search and maybe it to defy the senate. and so it was that specifically the record with a rejected. that was understood by everybody in the legislation. >> were here to get your information. >> the filibuster issue is quite the strength. rule 23 is very distinct from whether the president had authority for the confirmation process whenever he feels like it. >> mr. pinkas company made a statement that the chamber of commerce supports consumer protection. >> yep. >> so all fair to say that you may also say the business

community appreciates the search and see if the communication of thoughts on the books. >> yeah. >> when you look at the statute and a look at statements like those made by 44 republican senators who vote to the president voting to block and a nominee because they violated the structure of the bureau, you see that statement and the law has been passed and has been fully satisfied yet because there is no appointment appeared 44 members favor just never going to act on not. so you lose that uncertainty for a long period of time. how does that impact comments about chambers desired for consumer protection in your comments about desire for certainty? >> well, two answers, congressman. first of all, consumer protection as i sat in my testimony there's a lot a bureau could do under the treasury secretary. there are many rule-making

responsibilities that congress laid out in dodd-frank and many other rule-making that the bureau could undertake. >> let me stop you on that point. what it won't be a lot to do, however, unless somebody is appointed is identified unfair, to set a piece of financial practices. it won't be able to rein in predatory payday loan finisher credit reporting agencies to comply with consumer protections. won't build a safeguard against data collection and mobile to monitor private student lenders for nonbank mortgage companies and other financial institutions . >> those i consider not important or not relevant? >> no, they may well be important, but a couple of points. first of all, the ftc doesn't have the power right now to act against unfair and deceptive practices. this week announced a large significant enforcement action

on consumer debt collection and has been doing it for a long and devoted substantial resources. so the bigger arguments about whether or not wear the cap was that the was designed to sow. much of the argument in the runoff to dodd-frank wesley are very troubled that bank regulatory origin ceased all focus on consumer protection with respect to the entities they regulate, which were bank and we need to transfer the power to a new regulator that will focus on that regulation. that is the power to see fpv had prior to january for exercises. as the legislation through congress, it expanded to focus on other entities, although some are already regulated both at the state level and by the ftc and the ftc is very proud power of the state attorney general has five power. so all the entities you listed

are already regulated both by the ftc in the state. so the question is, there is a question both about the gap and whether there is one and we would suggest that is an and really the question here doesn't create uncertainty and back as i expressed my written testimony, and huge amount of uncertainty about the creative by the overlap between the state ag, ftc at all to regulate the same entities in all of whom they regulate. >> you don't feel that the senators are just not going to appoint anybody on the basis is any uncertainty as to how that's going to be conformed going forward? >> what it does is it means that particular part isn't going to take affect until their sound check. the same bipartisan check on the that exists for the ftc, consumer product safety commission, and just about every of the regulatory.

>> the chambers okay with that in a certain as to whether that statute is going to be? >> while a think it's going to be uncertain for some time and i think the question is going to be, can i get a regulatory structure that make sense going forward. >> the question is you better get some and appointed. but you're okay with no appointment. so you're okay with that amount of uncertainty. >> congressman, i think what we are okay with this part of the statute that was the fact data must be in minister has been described, with being fleshed out. the idea that parts of the statute that would come into effect until a director was appointed wouldn't be fleshed out until the director was appointed expert expands because the business community is not no subject here the problem now is the business community place in a difficult situation were about its connection and regulations are going to be issued their

businesses will feel they have to conform with what may turn out to be totally invalid and they may have to then spend a lot of money to go back to status quo because it turns out everything that's happened will get set aside by the court. >> what back on we go to the gentleman from arizona who has been patiently waiting. doc or gosar. >> i'd like to give you a minute to respond to the comment earlier but constitutionality and how the process for the ends meet are okay with the process. >> well, i don't know how long i have. i'll stick with what i've already said and by senator leaside. if the president can just say well, i actually think the

senate is really lucky gagging around and not to be in session, but they're not and they rejected my nominee for the next possession and my up or down vote by a 20 vote margin and i don't like that. i'm therefore, i see recess opportunity and i'm going to this person. now that's not the way the constitution is supposed to work. there is no absolutely irreducible way to get nominee is confirmed to may be any entity acceptance. you know, some diplomatic positions at supreme court, but for the average asian feet, any reducible amendment the president had to say that is going to be a recess anytime i say there is and therefore i can just override the process.

i don't think that's what the constitution means. i think there is another point to be made forward, not to belabor it, but the cordray and the nlrb are creatures and if you don't want to staff, you don't have to staff them. in addition there have been creations if you are so-called independent agencies. i have problems with the doctrine that any agency can be independent of one setup of the president. the president takes this view too. these are independent agencies. independence means you actually have the upper hand and if you don't want to stuff them, you don't have to staff than any doughnut to fund them. >> that brings me to my next point. staffing for business will is impersonating a politician.

so when we go through a staffing process, we have a new world we have to flush out what is right and what is wrong and particularly when it is rushed around the same part of the congress and i see some problematic issues, particularly with the best of appointments. it's not getting it right the most important about process products >> i think that is right tonight ain't getting it right is important. i also think, you know, my other always said two wrongs don't make a. >> perfectly said. >> ambassador gray, over the history of our country, who has inflicted more harm to the constitution? constitutionalists were the average person? >> who's the constitutionalists? >> we have attorneys that claim they the constitution and receive inflicted upon the constitution over and over again

the challenges that depart from the original intention of our constitution. i hope you see the average person making these claims a violation of the constitution, but i see attorneys to constitutional backgrounds who do make them. >> well, this is another hearing. certainly there are many who think that academia is a source of a lot of wonderful theories. >> on the president was one. >> he was an academic. all of this gets translated through clerks who get put out into the field working for judges and influence judges. this is a long conversation, that the public is not guilty of this and part of the reaction of the last election as a lot of people say wait a sec and, so then is off kilter in what we thought about isn't something that's gotten out of hand and that i think is a valid point to

raise and it's not the fault of the average voter in america. >> gives me the average guy in main street. were playing basketball. this is a blatantly fragrant allen was to have time now to take a penalty and you're excused from playing the game at all. that's how bad this is. and then one more quick question. >> the gentleman will be granted an extra 30 seconds plus mr. gerhardt will allow additional time for that. >> mr. carter, in regards to the nlrb, prior to his platoon members on there, most processes are fairly noncontroversial and now when we've had these appointments, how do you think they are going to respond? will face day to the noncontroversial aspects or are they going to go into the realm of the controversy? >> let's try to do with this empirically. when peter schomburg and will

believe and were left as the sole two members of the national labor relations, they came to an agreement as the subject of a process whereby they agreed not to decide any controversy cases. those cases that normally would require three majority votes to overturn prior precedent. they did so in a collegial fashion despite the fact that the number was part of a republican party and a member of the democratic party. it is possible for members of the nlrb bipartisan way to foresee collegially. with retired to the current word as it's currently in post, what they do is what they will do. based on a january 26th report from "the associated press," quoting chairman fears to find the agenda. it is obvious that they are

contemplating supplementing already controversy out election regulations and attacking the docket of administrative appeals at or before the board. it appears to be a report by his report to the press that is going to be aggressive in pursuing its agenda. >> thank you. >> i very much appreciate that, mr. chairman. just a few quick points are they to try and make in partial response. first is i hope we don't lose sight of the fact that i actually think an important premise we should have here is that everybody is that demand good faith. that is to say i asked him and i actually do more than assume that everyone here, whether a career night is acting in good faith. i care the same assumption with senator leahy who is very eloquent and insightful and the president. so that is my offering. the second has and i think it's

important to remember just to clarify on the record that recess appointments are perfectly appropriate to be made to independent agencies. and then upheld repeatedly over time. i don't think there's any question about the constitutionality of that. lastly i want to point out in a lot of situations we've been hypothesizing circumstances other than those of which the president made these appointments. if we focus on the specific situation of which he made them, these pro forma sessions, that situation i think he's that team fairly strong constitutional grounds. if we change the fact he obviously my teeth to change the analysis. in terms of the fact this case i think he is that a credible ground. the mac well, we're about to go to mr. davis. i might only mention in the case of the nlrb to be function, you only have to do one recess

appointment. with that we go to the gentleman from illinois, mr. davis. >> thank you, mr. chairman. i'm going to thank the witnesses for their patients. we keep hearing about how this ways a cloud and i'm quoting, cloud over whatever decisions the nlrb for the cfpb meme, all the statements will be true according to some people when rules are promulgated. we have heard that these appointees, their official acts will be held as a matter of luck because again they didn't have the authority to act. you have opined that the foundations for the president's actions are sound and the appointments are not unprecedented are reckless and will withstand legal skirt needs. is that correct? >> that is correct, sir.

is it fair to say in your opinion these appointees do have authority to act because the president's appointments were lawful? >> that would be the case that would make him a yes. >> so if the appointments were lawful, can we dismiss all this hype talk about these nominations creating a cloud over these agencies decisions? >> well, der stern might have to actually politely disagree. i actually do believe in dialogue. i actually do believe in the give-and-take and that's a robust and important part of our democratic system. >> i would certainly agree with that. but isn't it a fact that all agencies decisions are judicial decisions, regardless of whether or not a recess appointment had been made of a vulnerable

challenge in court? >> you say is it possible for anything to be challenged in court? >> yes, that doesn't mean it can be struck down. >> in fact, would you agree that for the most major proposed regulations, judicial review of some kind is almost certain to follow? >> yes, surmise and the scene where two characters come to the ocean and one says to the other yes but will they can't. >> you can litigate, but it doesn't mean.com. >> two rules recently promulgated by the nlrb to reform election rules and require workers rights are being challenged at a chamber of commerce and other business groups right now. so i really think it is sort of a false premise to say that recess appointments are going to create litigation when the

litigation is likely to take place in any event, whether these are recess appointees there any other kind of appointees, individuals still have the option to ask for judicial review. >> yes, sir, quite likely politics by other means. >> thank you very much. i've no further questions. >> the gentleman yields back. with that, gentlemen from cleveland ohio, distinguished mayor in his his own right. >> thank you rematch, mr. issa. i've been listening to some testimony from my office and i keep hearing criticism of the president for not giving the senate enough time to consider his nomination before they can recess appointments. now mr. rifkin, isn't it true that president bush made at

least two recess appointments to mr. colin and mr. bartlett about cover nominating either of them to the senate at all, is that true? >> i am not sure, congressman. >> okay, let me say for the record that it is true and that mr. pincus -- i've got to move on, so you didn't give me the answer. mr. pincus, slide 10 shows -- somebody dare? thank you very much. that slide shows president bush's recess appointments made eight recess appointments to the nlrb during his presidency. now take a chamber of commerce object to mr. bush's recess appointments? pacino a?

>> i don't know, congressman. some of them are made in the circumstances here. so you don't know what the chamber did? okay. the national labor relations board, mr. pincus insurers the union and nonunion workers alike. now slide six. thank you -- slide six shows the nlrb protects the right to bargain for wages, benefits and working conditions and the right to take action with coworkers to improve working conditions. now mr. pincus, you are here for business interests, correct? on behalf of the business interests in the chamber represents and is an advocate for restrictions on company management, ray? >> i don't represent the chamber in connection with labor issues.

>> she represent the interest of company management and ceos in the most powerful companies in the country, ray? >> i don't with respect to any labor laws. >> what about with respect to corporate policy? >> i have clients who are individuals. >> let me ask you. didn't the chamber file a lawsuit require employers to post a notice explaining employees rights to unionize? are you familiar with? i know congress and the chamber has challenged a nlrb rule. i mean mr. carter -- >> the chair will stipulate there is in fact a doping case disputing legitimacy of that. >> i appreciate the chair could answer the question. but hasn't the chamber filed a lawsuit against the nlrb to

alleviate delays that the process and unnecessary litigation for workers who want to vote on whether to the union? >> the chamber is one of the parties challenging. >> and so is the representative at the chamber of commerce, a board about a foreign is somewhat ideal, isn't that? >> i don't think a government agency that connect is ideal. on the other hand our constitutional senator anticipates they are going to be these collisions that have to get work out when the government had to close because there is no funding. i think everyone would agree that was an ideal either, but it can't work out. >> what hasn't been worked out here is the chamber is consistent opposition to the nlrb and these oppositions to

the recess appointments really represent opposition to the nlrb because we got no information because of what they did when president bush made the appointments. i think the chair for the opportunity. >> thank you. ambassador gray, all those appointments are up inside 10. these all occurred during mutually agreeable recess offense. >> yes, sir. >> the fact is the son of a love for recess appointments by terry decide along with the house. >> absolutely. there's nothing illegal or unconstitutional except in the context of their star recess. >> i'd like to look at all. nobody here today for the whole several hours, first or second panel objects high-power recess appointment. is that correct? there's no defeat the president has a constitutional, one with a

obligation to keep the government running during recess and that's why the founding fathers give a recess appointment authority, correct? >> mr. gerhardt, you've been good and balanced in trying to answer questions even though you somewhat disagree with the other panelists. he said something earlier that i focused on a little bit and that is since the administration itself says there is litigation risk, i thought energy say and maybe want to correct that there wasn't because it would be upheld. isn't there -- isn't a litigation risk innocents at risk potentially leading for this committee to the fact that nlrb for the protection bureau would have laws similar to the new steel that might have to be invalidated. isn't that a rest? not just of litigation, but a risk their actions could leave them not ballot and let me do

between now and whatever the supreme court finally acts? >> i very much appreciate the question, mr. chairman. i don't think the fact that the memo mentioned that there's a litigation risk tells us anything about the merits of the case. >> sure. and mr. davis when he originally posed that, i don't think he knows the outcome. if it goes up and says hey they were in recess, then there's no risk to these appointments. there may be some risk to the lot january 23rd or december december 23rd, but let's just assume that the court finds that they weren't in recess on the 23rd, they weren't recess on the 24th, then nothing happened. always had was a lot of litigation for a period of time. what if it doesn't happen? this committee came together to ask all of you about what is and

i'll start with mr. carter and sort of go from right to left at this time. what is in fact we find that these appointments, one or more of them would be considered to be inappropriate and we assume all or none of them, what is the risk to the actions of the nlrb and the individuals in the parties and obviously the lesser action specifically of the new director? >> mr. chairman, that is the greatest danger here is the volume of risk. the volume of risk is expansive. unlike the situation that congressman davis was describing , which is well, every bit of litigation is subject to appeal, ray? so what's the difference. but we talk about here is an agency acting all choosier split the nlrb. it's not one or two cases that

might be brought to appeal to one of the little tense. if every case that they decided. it said three official action that they face and thus affect real people with real rights to really be heard. two examples if i may. let's take the situation word employer is told this coming year but they have a weekly relocator work for my manufacturing plant. >> you may maybe south carolina? >> with the south carolina, sir. that one got trackless the handouts they wanted. >> was a west virginia, my home state are we really need jobs. and that says you can't put a plant there. everything you put into reengineering of that plant, all the people you've hired in their livelihood they party taking out mortgages on about cars when it

is all gone. they don't have jobs, you don't have used cf plant, were transferring the work that. >> or could the people of west virginia is that the president was inappropriate in the recess decision it just decide to it were. couldn't ignore what the president has done? isn't very constitutional power of the house, senate and supreme court that maybe, just maybe the american people? i know they're not except they had these life, liberty and pursuit of happiness and there's nothing that makes me -- ever made me happier than a paycheck. >> anything this committee can do to ensure the citizenry is free of those government would be extremely welcome by any citizens. but it's not just companies. it's not just employees. >> i wasn't taking of companies. i was thinking of citizens not been laid off.