a. [inaudible conversations] good afternoon. welcome to the cato institute i am director of the decade of center for constitutional studies and

your host this afternoon. i am pleased to note cosponsoring our debate today on behalf of the federalist society flinty extend a welcome also to those watching us streusel live streaming and through the offices of c-span tv as well. on monday, january 13, the supreme court will hear an argument called the nlrb defers is standing with the most important constitutional cases is expected to decide this term at issue is the recess appointments power to make recess appointments to federal office is that otherwise requires confirmation and it has never decided said nature or

scope but for today's debate it is worth it to begin to'' the constitutional text at issue if you pull out your handy kato pocket constitution article ii of sexual back to you can see that it says the presidential have power to tell all vacancies that could happen through the recess of the senate by granting commissions that expire at the end of the next session the purpose of that plea in the is to allow the president to fill offices that should become vacant when the senate is not in session so could not give the advice or consent that would be required for confirmation. separation of powers and the conqueror power of this and it is at issue in this case.

that is not how the power has been used for years and no where is that more clear than when president obama on january 4th, 2010 put people on the nlrb without confirmation when the senate was in session. not surprisingly litigation followed on jittery 25th last year the u.s. court of appeals in the case now before the supreme court held that mr. obama is appointments were unconstitutional both because they fill vacancies when the senate was not in true recess and they actually did not vacate during the recess. it was an opinion written by the chief judge and followed by two other appellate court decisions both the third and

fourth circuit found the obama appointments unconstitutional. so we take up the discussion today what it's the supreme court on monday. the proposition is straight forward. with the purported recent appointments were unconstitutional. professor nicholas rosenkranz will argue in the affirmative and professor victor williams argues in the negative. each will make the opening arguments of no more than 80 minutes followed by a five minute response after which we open to questions from you in the audience followed by a lunch upstairs in the conference center. let me introduce our speakers. nicholas rosenkranz a professor of law at georgetown where he teaches

constitutional law. also a senior fellow at constitutional studies here at a cato. also attending yale university his articles have appeared in stanford law review. professor nicholas rosenkranz has advised the government in a variety of capacities for the seventh sec get on dash circuit also kennedy of the supreme court also as the attorney adviser at the u.s. department of justice as well. he often testifies before congress as a constitutional expert and has filed briefs in presented oral argument before the u.s. supreme court the most recent brief was on behalf of. [inaudible]

victor williams is a professor that teaches law and economics and lawyering skills. he holds a master's degree of education and public policy from harvard three law degrees from the hastings college of law where he was the article said eckert -- editor and also from columbia university school of law where he was editor of the american review to international arbitration specializing in economics from the school of law. articles have appeared at george mason and elsewhere in most recently the huffington post has held a series of his commentaries on the federal appointment process he has served as the official clerk with judge she and also as a picture

for the u.s. court of appeals judge and the 11th circuit through the ninth circuit. and the intern to on enforcement issues that the sec regional offices is a most angeles. again we will have each speaker speak about 80 minutes than respond five minutes each did we will begin with professor nicholas rosenkranz. please give them a warm welcome. [inaudible [applause] >>. >> i am happy to be here. i will spend one minute or two to put the issue in context before getting to the arguments. roger davies the text of the

recess appointments clause i think i should give you the text of the appointments clause for comparison. a president shall nominate and by the end with the advice and consent of the senate shall appoint ambassadors and judges to the supreme court and all other officers of the united states that whose avoidance are not otherwise provided for which shall be established by law. that is a general rule. as a general matter, is the senior appointments are to be made by the president with the advice and consent of the senate. then there is the exception to the rule what we're talking about is the exception is the vacancies claus. the president shall have power to fill all vacancies that may happen during the recess by granting commissions that shall expire by the end of the next session.

it is not hard to imagine the paradigm case why do we need the exception to the rule? the paradigm cases along the lines of the senate is not around so the general is killed on the battlefield and the president needs to appoint somebody to fill his shoes there has to be a mechanism under circumstances like those in that is what they were imagining. that was the paradigm. not the only case but surely that was the paradigm case that motivated this clause. this is a case that constitutional law professors love because there is almost no doctrine about this. and that leaves us going back to first principles.

we don't have supreme court opinions we have to go back to constitutional text and history and structure to figure out what this document means. so we dig into this tax to figure out what it means. as writer explained obama and made appointments and early january to use this recess appointments clause whether the clause was properly invoked there. and it actually raises three distinct issues. not really a original analysis about this which is

the respondents arguments excellent brief in this case. there are three issues but the point i want to make but francisco before the court and i only have to be right about one of them in order to wind. to be wrong about all three in order to lose. bear that in mind as i go through these three points. the first thing to figure out the vacancies that to happen during the recess of the senate. what does the recess mean? to possibilities immediately present themselves. one possibility is the recess between the formal sessions of congress, the number of sessions of congress of which there are

typically two or three like the recess between the number recessions. this is the intercession very. there is no such thing as the intra session. that would have another name something like the adjournment rather than a recess. the constitution uses the word adjournment so that is one possible theory that it is only triggered during the recess during those numbered sessions of congress. that is franciscos view a.m. to the view i will take today. there is another possibility

the government q is there could be interesting recess on the government a few it is the break that the congress or the senate takes the government though, representing that position has to analytical problems. one problem with that position is can it really mean however short the break ted minute or a lunch break? can get relieve meet any breakout weber short? was of the crazy if that is true with the exception follow their ruled the president would just wait for lunch than just a point the person not go through senate consent. so the government is left by

drawing the archer relying there is a time of tendinitis exception of a substantial amount of time and the government says we think it is about three days and if it is lager then it counts as a recess. they could have taken that sought through the adjournments clause of the constitution without the consent of more than the adjourned for more than three days that in which the two houses shall be sitting but the government does not seem to want to derive the three days from the clause in the fact they have parted from that they want to leave open the door that maybe tomorrow thereby to argue it is only today's.

so they do see the problem so with the arbitrary line there is the second to analytical problem. if you listen to the language of the recess appointments clause it seems to set up a dichotomy between the recess and the session. so the president shall have power to fill up all vacancies that will happen during the recess of this and a by granting commissions that shall expire at the end of their next session. it sounds like a recess and it session alternate. when you are not in recess you are in session that these ideas alternate but look at the government's problem if they are right

about the many little recess is, they would be forced to adopt a view of many little sessions spread out among very little recesses' a four day recess then attend a session that afford a recess then 10 days is the session so with that theory you have an appointment during that four day gap predicted only last for the next 10 days session and at the end of the next session it would end. the government doesn't like that. so they don't take that view. they want to say is recess means colloquial like a little break like a school that is very short, three days or more, but a session is formal and long and that is the full number of years.

so they don't sign on to the idea of recess purses session they are forced to believe you can have both at the same time. any given moment you may be short recess but you're also in the session. so they have a formal view of session that seems to analytically a awkward to use say the least and also creates the odd anomaly. saw now imagine a formal session it starts on january 3rd or 4th then there is a short little recess for the president can

appoint somebody if that commission last at the end of their next session that is not the session we are id now but just short of two years which is the length of the congressional term. it is plenty of time but this recess appointment will account for almost two years of the government's view it is required to believe the recesses short and formal sessions for the beginning of the intercession recess to last for two full sessions. this is the first point

intercession and intra session. listen to this language again. the president shall fill all vacancies that may happen during the recess of the senate with the played reading you would think happened that means comes into existence or begins. with the paradigm case the general who is killed during the recess it happens during the recess president obama is recess did not happen in during the recess. so what happened here is the vacancies existed, they came into existence then this

senate went into what the president says is a recess, that's debatable but then the vacancies exist so there are two different possible readings have been beating, into existence or ocher? happened does not need ocher it means continues to exist or happens to exist when the president looks around to see a vacancy that is happening at that moment is the government's dairy. the plane language is crystal clear actually and on this point though the government has 1.in its favor.

from 1789 every blind assume what i am offering the plane meeting but the attorney general wrote the opinion that have been means hatpins to exist the executive branch has taken that position pretty consistently from now. at least we have that mitt argument more or less the executive branch has taken this position to raise an interesting method. if you take as true how much do you care? if you thought the plain meaning answer was right for

the first generation if the attorney general was wrong doesn't matter that wrong interpretation has been the executive branch view? there is the interesting question see your probably inclined to to the original meeting even though there has been this long history but to be sure it is what matters to a lot of folks but no doubt to a number of justices. but they have a good argument from tradition. then it just to make the third point on which i cannot imagine the government waiting. of the third point, what the senate has gotten in the habit of doing is to hold a

pro-forma session. every three days a senator gavels the place to order and a few seconds later gavels clothes and they do that every three days exactly so that they are in session rather than in recess. that has ben and knowing to presidents 20 or 30 years by presidents nevertheless have said i guess i am out of lot. they gaveled to order it has been annoying but the state of the world. president obama though, this is unprecedented, he said that is not a real session. you say you are in session but i say you are not. i say that is not a real session but actually you are

at recess thus i feel i have the power to make recess appointments that is what was going on during these particular three says appointments this is the first time a president has ever done that the first-ever recess appointment during the time of the senate itself believed it was in session. the president claims the power to decide whether the senate is in session or not to override its own judgment whether or not it is in session despite clear contextual command that the senate is the master of its own rules with the constitution. i would say it is hard to imagine the government will win on that point. i would be very surprised. but for canning to win it has to be only one of these

points but anyone of these points can persuade any of the justices. you could get the votes from any of these three points and i will predict that one of these will persuade all nine of them. a reckless prediction this would be nine / zero. thank you. [applause] >> we now will hear from victor williams. >> i am glad to be here at kato it is a privilege to be in a place with hijacks name on cobol. co-sponsored by the federalist society that has done so much to promote the great strengths of ideas but also all across this

country. it is a genuine precision and kudos to the federalist society for having promoted yvette of a free market of ideas the american constitution society has popped up to do exactly the same thing. kudos. but it is an honor to discuss our constitution. i do with reverence and july and pride. i hope not with tim much enthusiasm. i will try to dial it back. [laughter] with the obama is recess support -- of claimants and all future presidents recess appointments president clinton all permanent and

temporary constitutional authority. it will not be that long. to attempt first principles i think i have to go back to our first constitution the 1781 the ratification of the articles of confederation to remind myself under the articles there was no executive. no president. national judiciary. no separate branch to execute the obama to read mr. the government. congress and all the power and all the responsibility and failed that they. today we often hear about this function. our dysfunctional government. let me tell you in the 1780s there was dangerous and dysfunction. the confederation congress failed miserably in its attempts

to legislate and administer the new republic. specially constituted committees by congressional committee, nor congressional reappointed administrators had been able to execute the law, to lead minister our new government. one of the big reasons and summer of 1787, shipped to philadelphia, we came to direct our constitution, our second constitution, a crime in that mission the framers formally separated executive authority from the congress. the congress were stripped of executive function, executive responsibilities, the head title. executive powers were transferred through what came to the article 2, a president a

single individual achieved executive, chief administrator, commander in chief. congress was left with fulsome legislative powers enumerated as they were. of course one president, one individual can't do the job of executing the law in 1789. so the debate continued. the president needed help obviously. who would higher the help? who would hire the help? who would hire the principal high-level officers under the president to execute the law. who would hire the folks to fill the benches that would be created under this new constitution? going into the convention many folks went in with the assumption that congress would

continue to do that job and appoint the officials and new judges? that is the interesting thing about our founding debate and discussion matter. in philadelphia, in the summer of 1787 this was debated. who would best fill these positions? who was the best person to choose our officers and judges? minds were changed. minds were changed and in the summer judgment, to grant the president in my view a strong, predominant appointment, the president would choose. the house had no role whatsoever to play the senate was restricted to a confirmation vote the sextet would give a simple majority consentual vote. that was their advice and the

president retained appointment authority, the president could end usually does accept their confirmation advice but he doesn't have to. he still has appointment power. pecan choose to accept and actually signed the commission. there is the appointment, the president signing the commission, the president signing the commission. he has full appointment authority, he has final authority. that same summer date, no role whatsoever senate restricted 53 consent, and the president's final authority the question arose, what happens if the senate is not available? what happens to these officers? they are supposed to be important officers, do they lay

fallow until the senate returns? and north carolina stepped up and said no no. the central solution is the president has unilateral appointment authority when the president--the senate is not available. the senate is gone, the president has no need to make a formal nomination, the president has no need to wait for the senate advisory consent vote under clause 3. the president puts the individual to work. is not an exception, it is the capstone of presidential predominance in appointments. the convention delegates immediately and unanimously accepted this grant of exclusive

temporary appointment authority, prompted no additional debate. it was in for gold to the delegates at structural and functional executive appointment authority. the president's appointment authority would remain operable at all times for all purposes regardless of attendance to duties. the president put the official to work. all president and beginning with george washington used this authority to keep the government and the judiciary working. unlike the articles of confederation this constitution was actually going to work for people. and thanks so much, i wish my professors had been so clear and direct. i'm really do appreciate that. president obama's commissions

constitutional? of course they were. of course they were. we will get more of this hopefully in the discussion. the pro forma sessions are nothing more than that. argued strongly against them when they started in 2007-2008. i encourage george bush to challenge harry reid of's las vegas block, he didn't. the pro forma sessions do not change the fact the senate was not available. was on a planned 20 day no business break. there was no quorum to be had. the constitution in my view exclusively grants the executive said the responsibility to determine senate and availability and the discretion to find temporary conditions.

alexander hamilton explained in federalist 67 clause 3 is, quote, intended to authorize the president singly, alone we might say, to make appointments and. was 3, quote, intended to authorize the president singly to make temporary appointments. lc executive has been institutional competence to know when such an appointment is required. for his article ii section iii mandate, he is required, he takes an oath to take care of that the laws be faithfully executed in condition of officers of the united states. only the executive has the institutional confidence to know when temporary conditions are

needed. as to specifics of the d.c. circuit's erroneous tendency reluctantly biased grouping, to help the reference used to the solicitor generals available through the excellent website scotusblog.com to take before the court, a double click away for you. the brief is exhausting and detailing why the temple or reappointment authority to the exercise strength in cross section break and for preexisting positions the solicitor general rises to the challenge, and defeats the d.c. circuit's ruling takes out the old dictionary and contemporary practices of the founding parrot to support his analysis,

diagrams sentences as if we were in ninth grade english the briefly explained the purpose and historical function of the temporary appointments and the appendix lists the names of hundreds of officials and judges whose preexisting basis in the commission's have been made. counting military appointments the numbers go into the thousands. i strongly support the solicitor general's decision. i do have to come forward and say i strongly believe he made a mistake. his mistake was in the fact that he should have made an alternative, pre-emptive argument. and he knows that. sometimes it works out.

the victory at least. to make it brief to the d.c. circuit and the supreme court i argue that it presents a non reviewable political question to the court. some questions are committed by the constitution, by the text of the constitution to the exclusive discretion of our elective political branches. could it be that the court doesn't have the last word? could it be that john roberts's court has a wonderful of opportunity to can prove its conservative credentials by exercising restraint over appointments, by treaty tell the application of the question cases. walter nixon versus the united states. let's take one of them in the interest of time. in the 1993 case of walter nixon

a defense federal judge in mississippi, i believe, the court refused supreme court refused to review the senate's short cut impeachment trial process, they didn't have time to transform themselves into the court of impeachment as the framers intended that they had a little evidence committee, we had a little committee. 12 senators actually hear it. the eight senators don't, they are off doing other things. all 100 senators come together and all 100 senators thumbs up or thumbs down. it was thumbs down. walter nixon was spread -- stripped of his tenure has a federal judge. so he sued of course and he sought to have the courts have

the judiciary reviews this shortcut procedurally deficient impeachment trial process. chief justice william rehnquist knew that impeachment removal was a quote make important constitutional check on the judiciary exercising prudence and restraint. our nation's highest court would not even define the word try in the senate's impeachment trial clause of article i. they should not attempt steven d. fine the recess or when it may happen. judges should not be the final arbiters of the senate removal process, the court should not have the final word on a temporary appointment used to regulate bench proposition and used to transform our court's engendered demographics.

let's be clear how resources appointments had been used in those 300 judges that of come to the bench temporarily. the first female judges by recess appointment, the first jewish federal judges by recess appointment or the first five u.s. court of appeals by recess appointment. judicial oversight of recess appointments is a blatant conflict of interest. the accord should stay out of this political, partisan -- just leave it to the elected political branches to fight out and the ideological interest groups. there were 25 opposing barack obama's recess appointments. where they really or were they just opposing barack obama? let's leave it to the elected

political branch to fight out sonia sotomayor used the term and are -- or large and, just leave it to the elected political branches to, quote, duke it out. thank you. [applause] >> we will have a five minute response from each of our speakers and then open it up for you folks. >> great. that is a very interesting presentation. i guess i am going to speak to the end of the first. the good professor argued that the case is nonjudicial, that the court should stay out of it. he argued that in a brief afore the court and you heard them argue it for five of his 18 minutes just now.

that offers up i guess that terrific teachable moment for the law students in the room. that is not the question of our debate. it is not the question of our debate and i will help you to understand that by reading you the resolution, quote, resolved. president obama's recent purported recess appointments were unconstitutional. the question of constitutionality and the question of did judicial ability are quite different, distinct questions. i worked for years at the office of legal counsel and we answered constitutional questions all the time which will never show up in court. what we are arguing about is whether the president violated the constitution quite regardless of whether the court ought to be answering the question. we are wanting your view, and our view on whether the constitution was violated.

we are not doing the court's view we are doing our view. was this an constitutional or not? you can agree with the entire last five minutes that you heard and it has nothing to do with your view about how this debate to come about, we are arguing constitutionality says that is important. in law schools and common law classes you come to think, sometimes you might come to think that these questions are the same. if the court won't declared it unconstitutional then somehow it is constitutional, that is not so. there are questions the court will stay out of, never the less legitimate constitutional questions for us, for we the people to consider, this may be such a question. nothing to do with this debate. so second, i heard the good professor say the recent woman's claus was a capstone not the

exception? that was an odd formulation. the vast majority of appointments with the advice and consent of the senate, it is quite clear in the federalist papers that the framers as the professor explained debated at length about how appointments were going to work and what the role legislature was going to be but the recess appointments clause there was no debate at all. we will have to have something like that and they roads that in and there was no talk about it at all. is careful mechanism for appointments on the one hand, this quick vacancy recess appointment clause was no debate at all, surely that suggests that they thought that was the exception to the rule. i heard professor williams say that the president, i think i heard you say that the president can make the appointments even if the senate votes know?

of course. i am going to give you the primary claus again, the president shall nominate by and with the consent of the senate, shall appoint. professor williams is telling you that if the senate votes no, the president can go and make the appointment anyway. i am here to tell you nobody thinks that. that is not the conventional wisdom. i don't think ever heard that you espouse before. that is an unusual claim. i would like to your more about that but that is not the conventional wisdom i am here to tell you. professor williams called these things shem sessions, these little micro sessions or pro-forma sessions called them sham sessions, sessions during which the senate couldn't possibly do any real business, the senate actually voted for and passed a bill during one of

these sessions warmly ten days before these appointments so we know for a fact the senate actually can do business during these sessions and it did so i don't think you can quite called these sham sessions. you actually can do business during them and the senate has. as all of these questions that i raised in the opening presentation the logic of the government's view is it possible bidding includes a lunch break? if you want to say not a lunch break then where do you get these three days from and why is it recess can be short and informal but session means an entire year and this anomaly is that if you do it at the beginning will last two hole years, after that we heard no answer whatsoever except to refer you to the excellent as gee brief an unusual way to win a debate that have a look at the

brief. i urge you in questions and answers, ask professor williams does a lunch break count and if not, why not. that will be a fine point on this. the strongest point is this giant appendix with all these prior appointments that seemed to be where the vacancy arose, not during the recess or where the recess was not with infra session rather than into recession and that is a legitimate argument and you have to ask how much does that matter to you? if you think of first principles you could nevertheless believe something like but there's so much water under the bridge or something like yes, that is wrong but we should stick with it anyway even though it is wrong because we have stuck with it for so long, if you can believe something like that or you can believe something like

that wong tradition changes the meaning of the constitution so that even though it was wrong before, somehow it has become right now by tradition. i don't believe either of those things but those aren't legitimate things to believe. >> time is up and want to stop you before you give away too much. thank you. >> legitimate arguments versus not legitimate. reminds me of law school. i was a little comfort by that. where do we begin? lincoln, david davis, his friend at that point to the supreme court. would not have satisfied the strict test of the d.c. circuit

to get rid of the obama appointment. grant's first solicitor general, the first solicitor general of the united states, one of these prohibited recess appointments. william crier jr. to the eleventh circuit, didn't have the courage but he did for the eleventh circuit, intersession appointments to a preexisting vacancy on the eleventh circuit, still have fond memories from alabama. william crier, that was challenged by ted kennedy and that crowd in the eleventh circuit, a centocor appointments as constitutional. at least parts. of course it is constitutional.

the recess appointment something like ten days. others are 2 of media board. in the united nations -- tell me jeane kirkpatrick was not constitutional? she stared down tyrants small and large. that was a constitutional.and doing god's work at the united nations. what else can we say? i could talk more, could reminds that it was in marbury vs. madison, john marshall, questions in their nature, political, or by the constitution and the laws submitted to the executive can never be made by this court. the president has certain discretionary powers for which he is, quote accountable only

to his country, in his political character and to his own conscience. that is constitutional. that is what it means to have a president, another case for your -- the court rejected the challenge of the congressional delegation lawsuits against president jimmy carter's decision to terminate the defense treaty with taiwan without going hat in hand to the house and senate. associate justice william rehnquist wrote, the constitution is expressed as to the manner in which the senate shall participate in the ratification of a treaty it is silent as to that body's participation in the aggregation of a treaty and all the other recess appointment challenges that have been dreamed up all across the country. article 2 section ii clause ii

is expressed to the manner of the senate participates in the confirmation of an ordinary permanent appointment. the next clause of the constitution and we are talking the constitution here the constitutional read that we do. the next clause negates that body's participation in the president's decision to sign a temporary commission to the pro forma session. i argue this against harry reid, when he started this silliness in 2007, it is an embarrassment to the senate as an institution, it is a waste of taxpayer money to light up the place to in deference to c-span to run their cameras for one minute to tell you is that these pro forma

sessions their latest development, that wasn't even the senate. the senate isn't objecting to these recess appointments, that was a partisan minority of the senate colluding with the house majority the house majority refused consent so the senate was forced into these pro-forma sessions. the house majority colludes with peace and at minority for the sham sessions, shame on the house majority, shame on the senate minority, kudos to president obama for making his constitutional appointments precedent for rand paul, hillary clinton to run our government. [applause] >> we heard from our two

debaters. before we begin, please whig to be called john, wait for the microphone so everyone in the room and our audience watching online please for purposes of c-span, stand when you get the microphone and give us your name and any affiliation to try to make your questions short i have asked our speakers to give short answers as well. let's start with this gentleman right here. and before i began, up while we are fielding questions to the others could give me your hand and sent people so we can save time. >> retired navy lawyer. on the appointments clause, not the recess appointments clause, in every cabinet department the

line has been drawn, assistant secretaries and above require senate confirmation. deputy assistant secretaries do not. how did that line come to be drawn and is that a defensible line? where is the line between what requires senate confirmation and what does not? >> who is that question for? >> again, with the advice and senate, and other public ministers and judges and other officers of the united states whose appointments are not here and otherwise provided for and which shall be established by law. there is not i would say at clear doctrine about where those lines ought to be drawn but senior officers and less senior officers but i don't think -- there is the line of tradition

and a clear constitutional line about requires the senate and to does not. >> certainly i agree with that the partisan obstruction we have seen from democrats and republicans to reduce the number of officials subject to senate confirmation. in some ways that is unfortunate that the senate can't perform its constitutional function but i had to agree this should reduce the subject to this torturous process. >> right over here. >> even if it is not within the technical bounds of the debate topic i would like to hear professor rosenkranz respond to professor williams's justiceability argument on the merits? >> actually i believe this is

judicialable because noel can link has of legitimate missed you. there is a real case for controversy involving this party, noel caning and the separation of powers at its core is about individual liberty so i don't think this is the kind of thing that is left to the political branches, they quite work out on their own but this is the sort of thing the court ought to be, ought to take a crack at. i think the court granted third in the case, very likely to reach the merits. this is a predictive matter i don't think the courts can say this is nonjudicialable and i don't think it should say that but this debate is not about that. we are trying to answer the constitutional question regardless whether the court ought to be involved. >> then it would fall by default to the president would it not?

>> no. you can believe it was nonjudicialable and that from president was violating the constitution by these purported appointments and you could think there were other proper remedies. you could believe impeachment was proper or you could believe that this was a proper reason to vote for the other party in the next election or to vote for the other party when you are voting for your senator. >> until those two remedies were available, mainly the next election or impeachment than the president would be successful in making the appointment and ignoring separation of powers. >> congress actually has withheld pay of folks who were appointing, either intersession or, and recess. and the government wants to say

they acquiesced, the senate acquiesced and acknowledge there are such people in the world. that is not acquiescing. and maybe it doesn't rise to the level of men impeachedable offense. and for these nonjudicial questions. and the way this will -- each branch has. and what the legislature has is the power of a purse. >> on the education foundation in australia, the full bench, what sort of precedent does this set it is deemed constitutional.

determine where the senate is sitting and when these happen to be vacant. doesn't this create a situation where highly political appointments will be made during these sham breaks or recesses in the future and this is this where you want to head? >> we could talk about the efficiencies of the recess appointment process, they are many but let's talk about this. obviously it is a term limitation. of 2 two years. it is not the full presidential term. it is not the term of regulatory official. office and salary, of a federal judge. there are reasons a president might not want to make recess appointments and many limitations to this alternative.

and barack obama was fairly reserved. 32 recess commissions for the great ronald reagan. a couple hundred by william jefferson clinton, compared to again close to a couple hundred by george w. bush. >> some might just say this is a dramatic shift in power from the senate to the president if this is upheld. a dramatic shift of power from the senate to the president, the exception following the rule. can always get around the need for advice and consent by waiting for a little recess to the appointments with the exception following a rule in a way that matters a lot as to appointments which was hugely

important executive power. and negotiating with other things. and we might not confirm your next appointee if you don't go along with this on x. it is not just appointments. >> deaf and watkins, george mason school of law. i was wondering if you could respond to the most devastating historical evidence, george washington, when he was trying to appoint people he tried to contact them and confirm they wanted the appointment but if the session was about to end, after the senate to appoint them anyway so if they resigned during the recess that he could

then appoint someone else why do you consider that not to apply in this case or be relevant in this case as to whether or not he can appoint someone even if it arrives before the end of the session? >> we look to the target of the historical record and again the solicitor general's brief for the 170,000 of recess appointments for george washington in that particular case. great to see you from george mason. the silliness regarding the vacancy had to pop open during the intersession recess with the positions he could agree to a.so he was doing just a little bit of maneuvering. >> that is a rather

extraordinary answer. the argument is built on history and tradition. the appendix in the back with a list of appointments is the heart of the arguments so if you have to throw george washington under the bus to make your historically given work, you have a bit of a problem, i think. that is quite an extraordinary claim. >> david bernstein. >> david bernstein george mason law school, in terms of presidential unilateralism the obama administration is small potatoes but there's a related issue of these bizarres have been increasingly appointed to high level positions, should be executive offices subject to confirmation but instead just call them the director of regulatory policy or this or that, george bush did a lot of it obama doing even more. the extraordinary things that i saw going from the professions

we have been having is the senate and house passed legislation defunding in 2011 a couple of these positions so bipartisan the obama administration initiatives, finding legislation, part of a broader package to the point we want to. my question is any comment on the growth of czars to avoid it completely and whether there is plausible constitutional challenge. >> extraordinary that we adopted the word czar for these people. actually turns on what their powers are so they sound important to budge to get into the weeds on quite what the authorities they actually have to the extent they are just giving advice to the president, that they are like somebody in

the white house advising the president and not sitting on top of structure. i generally think they are okay but i don't want to get into the weeds on what the authority of those folks are before i thought they knew the senate considered. >> i agree with that and shame on the senate for not timely offering what the framers intended, of praise to the senate for getting rid of confirmation for the supreme court nominees that is coming. it will come -- let it come, let's get rid of this filibuster, the framers intended a simple majority vote. the articles of confederation failed because it required a supermajority votes, unanimous vote so praise to the senate for ending confirmation filibusters. >> right here please. >> american foreign policy

council. a lot of things in this country based on tradition and practice that might not be entirely constitutional. vice presidents from john tyler through lyndon johnson succeeded to the presidency with no constitutional authority to do so until the 25th amendment in 1967 but nobody is arguing that retrospectively those presidencies were in a legitimate or anything they did was illegitimate. if you look at the thousands of people who have been appointed from washington through obama international terms actual the opening the incredible question of retrospective negation of an enormous amount of what u.s. officials have done, particularly in foreign affairs. would this not raise questions about ambassadors' like jean kirkpatrick for whom i once worked, conducted on the united states if you draw into question the legitimacy of their

official status? >> that is agreed question. that is what i was starting to get at when roger cut me off from my own good. tradition and practice does matter. that is certainly the most powerful argument on the other side. i think it shouldn't win the day and it won't win the day for a few different reasons. one is tradition practiced it starts in 1789 is all but conclusive but this didn't start in 1789. it started in 1823, the first on anyone suggested that meant something other than a tear. the entire founding generation actually believed that happen means occur. it may sound -- to meet that difference matters.

1789-1883 matters. 1789, that tells me that i might be wrong about what the text meant. the original meaning of the text. i am comfortable saying that attorney general, got it wrong and the founding generation was right about this note to me that matters. second thing is there is no doctrine on this. history has a lot of power early supreme court cases, we don't have any here. history has a little less power because we don't have a doctor in and third this is not quite settled. the senate has consistently resisted this and expressed its concern that this was not consistent with the 0 regional meetings. it is not quite the political branches reached an accommodation about this or the

senate acquiesced, this has been controversial in the controversy flared up in a number of ways from 1823 on. not quite settled in the way that might carried away. >> very important case and i tried to make this argument on access ability. if the court is not persuaded by its own precedent in history to avoid the partisan appointments fight, the less domesticated perspective of the late great alexander b. cool in his least dangerous branch, prof. beckel advised to consider the strangeness, the indirect ability, the momentous ness, that strange case we have not seen before. he referenced the inner vulnerability, the self doubt of an institution which is durrell the irresponsible and has no

earth to drawstrings upon. that is the case, exactly the case, no strain it should stay out of the partisan mud fight of appointments. >> right up here. >> cato institute. every senator in the vast majority of the president's cabinet were to die in the middle of a senate session of a simultaneous heart attack would the president be able to use the recess clause to make appointments to rebuild his cabinet 0 would he have to wait for each state to send a new senator? >> only at cato would you get a question like that. i did not plan that. >> it is yours. i will see you afterwards.

>> from the library of congress. i would like to ask the question to both of our speakers. the removal of power should have the same procedures as appointing the nomination? if we go back 200 years ago, the removal of president andrew johnson, for impeachment, thank you. >> the constitution has provisions about appointment the we have been talking about but it doesn't say anything about removal. it was possible to believe these things were supposed to be symmetrical. if you needed the senate consents to a.you also needed senate consent to remove. that was a plausible thing to believe, there was no text on

this and some smart people did believe that but now the conventional wisdom is the president gets to remove those folks on his own motion even though that is unilaterally even those who the senate had the consent to and i think that is right but certainly as a matter of first principles smart thing to be set on the other side. >> d.c. circuit ruling would limit the president's discretion in terms of removal in the sense that if you take them at their word there has to be that magic little time, less than an hour between sessions so you need to find your vote during that hour and recess commission in the same hour of an intersection recess. president rand paul or hillary clinton to fire folks when they need to and i know hillary will do it. >> right up here with the next question. >> i and many economists not a lawyer so i will base your

indulgence to my ignorance and asked me to quick questions. professor williams has a couple of locations referenced to 51 vote. seems to be quite silent and richard cordray did get a senate vote, did not reach 60. the day before the resources appointments, his paper work was returned to the white house of my second question is i consider the exchange of paperwork and messages to be business so my question would be our votes the only things we consider business in the senate? what is senate business if not the exchange and receipt of messages with the executive branch which happened within 24 hours of the appointments? >> very interesting question. i would have to think about that a bit. the problem with these pro-forma

sessions since they started in 2007-2008, we see the senate business as monkey business, trials play. it is a good question. i will have to do some thought about that. it didn't start with harry reid. >> the monkey business. >> thousands of years ago. >> i am the immediate -- >> speak into the microphone please. >> i am the immediate past chairman of the national labor relations board, leaving the agency and created one of these vacancies that was filled by recess. professor williams talked about the fact that the difficulties of making these appointments were occasioned by the fact that the house of representatives was refusing to consent to the congress. the constitution says you need

the consent of both houses to have a recess, the constitution says the president can declare the congress in recess if the two houses cannot agree so my question mostly to professor rosenkranz is do you think president obama would have been better served following that route during this period the two routes were being debated and studied, the constitution expressly give him that authority. >> interesting question. i would have to think about that. >> there was quite a lot of encouragement for him to do just that. huffington pose, a wonderful sight in our new technology age. he should have tried that

certainly. talking about lawyers and outrageous arguments and unusual arguments it was robert kennedy that said the most important characteristic of a lawyer is courage and that means thinking outside the box and making an usual arguments. >> i will get one other thing out on the table. it is important to note the 20th amendment says congress shall assemble at least once every year and such meeting shall begin a new and on the third day of january unless they appointed different day. president obama believes, one of >>#presieith y see cf1 pau┘ administrationments to take the position that these sessions are legit for some constitutional purposes, but not for others and that's a bit awkward. now, if he disbanded congress,

then i suppose -- depending on the dates you might have risk running afoul of that provision, so i guess that's something he had to bear in mind at least. i believe, and i don't know if there's a question on czars had part of the inspirings about funding and congress power to fund positions and something happened along those lines; is that correct? was there a but not others and that was there a oning congr funding question commerce's power to fund or not fund? >> i may go to the point i was making about congress's remedy. fun >> if congress believes the

president is violating the constitution, one of their remedies is to not fund some of hist favorite things and it may agencies be the salary of appointees or posed the budget of certain agencies and that is the way that is a. supposed to work and that is the idea. >> if the supreme court says its own that the senate who doesn't really have its own power to own decide what it is doing, what is and reasons would they give for thisguessed s and has the supreme court ever and o gotten the senate's rulemaking for yo an decisionmaking power before? >> again -- upreme court >> repeat the question.no this >> has the senate the supreme ess or court after said this is not a recess or you would have or we yo are going to contravene your ? power to decide what your own

cases, but rules are?on't >> perhaps i have come close in that's one terms of removal cases but i i don't believe the addresses.ing at i that is why this case is ond guessed important.s to what the question is driving at the an is has the court ever had a ses, they second will? that. the answer is no.budgetary or not doing that very know i co interestingm question. to the budgetary question that ansas. is right. i i come from arkansas, ways and means that congress can have unconstitutional, interactions with the president. intercession recess appointments back to are unconstitutional maybe january 17th, maybe you should back. give back the title and treasury but could call back and sell it. [laugh >> pecan of ford it. for y can' i asked a question?

th i have been waiting for you to to ask the question i want the ort is too answer to.rt? how short is too short? >> i do do you believe a lunch break is clause thre a recess? >> i do not believe the th provisioni applies to what would not want restrict the president. in a time of nationalt emergency i do not want to handcuff the uld ask yo president in terms of how short in i is too short but i would ask you a question. intercession recess appointment,he i can see that pops open for ther to intersection that lasts 45 5 minutes and have the power in an was l intersection -- 45 minutes. answer >> your answer was lunch would count. >> i don't do a 45 minute lunch.

that doesn't get passed.little bit >> mainl y in virginia. want my question with a little thousand unco background i wanted to say for doesn't steven if you site 1,000 unconstitutional actions by past presidents that doesn't support is your position that this lp president's unconstitutional action is constitutional. that evidence will not help you.of the real thrust of what i want permits pres to ask is if all of this history isn't still permits president obamal to you aggrandize his power, that isn't clinton wo limited to president obama, lem is th president rand paul or president hillary clinton would have the stimate, a hu power but the problem is we haveally the i would estimate 100 years of 1937, the essentially the constitution being in advance since 1937 but from 1913 and we have a

of the continual aggrandizement of presidential power.where the p isn't this just one more step to the congre where the president is taking . more power away from the ser congress?hink it's >> i would go back -- is a serious question. in terms of barack obama, barackein obama hussain obama, i will go back to the fact that he has been very 250 f restrained, only 32 recess i accept appointments 250 for ronald about tha reagan.estion. but i accept the question. is an ipmportant question and we need to think about that lly need to go question and the pass article 1, we need article 2, we really need to go that's how past article iii and go to ma article v.constitutional c that is how we make t a constitutional change, not e go t through the courots. if we'ire serious about it being e constitution a democratic republic we go to concerned article v, amend the ra

constitution. >> time for just one more question. >> this question is for that professor rosenkranz but before i'd do that, i think maybe and ever inv applicable case that address the supreme court could ever mig involved itself in congressht to setting its own rules might be the clayton powell case just to d throw it out but my question ine that that i didn't hear an answer to,rules imagine the supreme court does canning, d what you predict, rules 9-0 in up just favor of no candidate, does thatallenges potentially open up an amazing made cornucopia of challenges to e effect o myriad decisions made for by parti decades and decades, the affect of those rulings still being question, felta by parties today?e fi >> that ris a great question and is the court it will be tricky for the courts. first question is what grounds is the court going to decide?

i predict several justices decide on the narrowest ground pro f which is simply these pro forma sessions count and these pro tments, president forma sessions count and these are president obama's appointments president p aren't unprecedentedu but.int the only time a president is sess purported to appoint folks when the senate itself believed it was in session. the siding on that ground cast into doubt only these appointments, none of the other jus thousand.t that i predict that least several even justices will decide on that narrow ground. as to thatck narrow ground there so ar e some tricky remedial questions.'s is it everything the nlrb has the done since that date? there are tricky questions.ely ratify i think the nlrb can go back and all. retroactively ratify most of they what they have done but maybe icky set not all. there may be some things they r the had to do a tricky set of justice

questions, tricky to handle concurrence. that.ah i think >> justice thomas will write a hat's concurrence about the word happened. so mu >> that is right. for lov >> thank you so much. our c i can tell for being here and liste loving our constitution the way here i do and all the folks listening out there, as we are we the people. >> it is time to break for floor. lunch. there are restrooms downstairs m. on this floor and on the second floor. we are going up to the george lunch. jager conference center up the spiral staircase for lunch.roups for let me again thank the th the federalist society and practice groups for cosponsoring this th event today with the cato institute. fed we haveer a good relationship with our friends at the federalist warm society. in most cases. s let's conclude with a warm amount of applause.

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