every senate with every presidential administration, republican or democratic, going back decades, in fact, going back the entire history of our republic does not and cannot ever excuse the president of the united states in thumbing his nose at the u.s. constitution. that is what happened here. that is what we're talking about today. >> so the senator started blocking all the president's nominees because they disagreed with the laws congress passes, we would essentially have a form of nullification that could shut down the government and that clearly is not what the famers intended. >> i'm not sure i can agree with that statement. every congress has the power to shut down the government should it choose subject to what the electorate wants. if the congress chose to shut down the government, my guess is that would be extraordinarily unpopular especially if it extended for a duration of more than a few days. yes, congress has the power to do all sorts of things.

the fact senate could exercise that advice and consent power irresponsibly doesn't justify the president in circumventing those same constitutional restriction that is give it that power. >> thank you. >> i thank you. if i can make a clarification for the record, ambassador gray in the first bush administration i wanted to make sure everyone knew it wasn't the immediate past. with that we recognize the distinguished gentleman from north carolina mr. gowdy. >> thank you. welcome. thank you for being with us today. who has standing to challenge this? >> well, if you're talking about article three standing for purposes of determining whether a case is just issuable in a federal court, the most likely party that could establish standing would be a party aggrieved by an order carrying the force of law by either the national labor relations board

or consumer financial protection bureau. once such an order has been issued and you have an aggrieved party, someone could in theory take that case to federal district court and say i have an injury, in fact, it's fairly traceable to nlfrb, the kind of injury that could fairly be redressable in court. >> do united states senators have standing to challenge the recess appointments. >> while there may be some disagreement on this of the authorities i've consulted, including those based on the supreme court decision, seems to suggest u.s. senators are likely not to have standing to bring the case in their own capacity but they certainly could in all events participate as amicus curiae. >> stare decisis when they like

them initially, they don't tend to talk about the president in stare decisis as much when they don't. my concern whatever the analysis 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 meant and a better rule going forward. it strikes me if a person in the chair were taking a nap under the president's analysis he could make a recess appointment. or if y'all were out to lunch for a couple of hours. what's the difference between three hours and three days. what's historically been the rule and what's a good rule going forward irrespective of who the president is. >> that's a great question. i want to emphasize the concern embedded in your question here the answer can't simply decide in his own accord when the

senate is in recess if he decides the senate is doing insignificant work. for instance, if he decides whoever is sitting on the presiding officer's chair is going to sleep or they are likely not to do any work, that's dangerous. that creates a slippery slope, he could make recess appointments overnight or over the weekend and that certainly can't be the case. to answer your broader question. the president hasn't been established in recent decades basically over the course of the last century. before that i think it was a little more informal but we have had substantial precedent evolve over the last century. we have in the early 1900s a series of recess appointments made by theodore roosevelt, 167 recess appointments made in the seconds between the end of one congress and the beginning of the next congress. aps basically. the senate judiciary committee convened a panel, conducted a

formal investigation to determine what the rule ought to be. our custom and practice as it evolved over the intervening century has been based in part on their analysis. here is one of their conclusions and i quote from their 1905 report. framers of the constitution were providing against a real danger to the public interest and not just an imaginary one. they had in mind a period of time in which it would be harmful if an office were not filled. not a constructive inferred, or imputed recess as opposed to an actual one. so in other words they are saying ycan' use an overly technical set of logic in order to reach the conclusion that you've got a recess. now, that conclusion was followed up by an attorney general's advisory opinion, by attorney general doherty which was issued in 1921. among other things in that report he explained that regardless of exactly where you draw the line, under no set of

reasonable circumstances can you infer that a recess and adjournment lasting less than three days could be deemed a recess for purposes of the recess appointments clause. he went on to say it's probably too short even if you take it out to seven days or ten days. and every since then our analysis informed by those positions. if nothing else look back to the two clauses of the constitutional we talked about article, article one section five and article two section two. article two section two says the president has power during a recess. section five says in order to adjourn for more than 72 hours the senate has 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 whatever reason we don't get it, we're not in recess because we're having to convene every 72 hours. the fact we might not pass laws doesn't mean we can't. we, in fact, did pass a

significant law on september 23rd on one of those pro forma sessions days before the recess appointments were made. it is wrong to suggest as the president's office of legal counsel suggested in advising him that those pro forma sessions are meaningless for constitutional purposes here. >> mr. chairman, i have additional questions but i'm out of town. perhaps one of my colleagues will take mercy on me at a later time. >> one can always hope. with that we recognize the former chairman of the committee mr. towns for five minutes. >> thank you very much, mr. chairman. >> if you would like to yield to the gentleman at south carolina he's available. >> i don't think i'll do that, but let me say i really appreciate the senator coming over to share with us. mr. chairman, i yield back the balance of my time because i really want to get to the witnesses. i really do.

i'm eager to get to the witnesses and i hope my colleagues are, too. i yield back. >> i thank the gentleman for yield back. we now go to the gentleman from texas mr. farenthold for five minutes. >> thank you, senator, for being here. while i was home over the christmas holidays and during this timeframe and after the president made these appointments, i got a great deal of e-mail from my constituents asking, how could you let this happen? how can you fix this? what do you do? there was a real frustration. i think the american people got on a common sense basis we were not in recess when we were meeting pro forma every three days, we passed very significant legislation in the form of the payroll tax holiday that the president himself was calling for us to pass during these pro

forma questions. my question to you, 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. where do you go from here? what are options in dealing with these people who are taking taxpayer money, making critical decisions affecting this country, bypass the senate as is required by the constitution. what are some of our options here? what can we do? it's clear courts don't like to get involved in these separation of powers issues. you answered mr. gowdy's question about standing. i mean, where do we go from here? do we defund the positions? that will never really get passed unless we can bury it in some other bill. we can't impeach him, i don't think, hasn't committed any

crimes. do we amend the constitution to make sure this doesn't happen. where do we go from here? >> first of all, thank you for sharing that set of remarks about what you've heard from your constituents. it's very consistent with what i've heard from my constituents in my state. people are feeling frustrated. they are feeling a sense of powerlessness. feeling a sense of power that belongs properly to them, the american people, has been exercised, been taken by someone to whom it has not belonged. the president has taken power from the people and exercised by those dully elected to the united states senate. something does need to be done. that's why i've drawn the attention to it in recent days i have. that's why i've said for my part, in my role as a senator, although i've cooperated and cooperated happily with this president, although he's appointed a lot of people whom i've had political and philosophical disagreements. he's the president. he did, in fact, win the election. elections have consequences. i've confirmed most of those

people who have come before me. for me personally that changes now. my response to that and my duty to the constitution based on the oath that i took just over a year ago when i took office, i think requires me to stand up for these constitutional prerogatives and show the president unless or until he reas i understand these appointments and allows them to be considered in a regular order in the senate, he's not going to enjo e complete cooperation he's had. other responses might include an action in the courts, notwithstanding the doubts surrounding where senators have standing independently. senators can and will participate in amicus curiae in actions brought by our parties withstanding. there is some possibility the courts act. one of the problems is the courts act relatively slowly. it seems somewhat unlikely to me the courts will issue a relief in the time required. these recess appointments will be valid only for the end of the

year. if the court acts after that, it's sort of water under a bridge in a sense. other options included, as you suggested, options that might involve defunding these oichffi. certainly in the case of the nlrb we have to remember the president can't fund anything on his own. has he to rely on congress. congress has the power of the purse. house of representatives in the first instance holds the power of the purse. there's problems that arrive out of the fact they are embodied within the federal reserve bank. we might want to look at a change in substantive law, the fact we've given this office to that entity and given funding responsibility to an entity not within our funding control. these are the primary levers we use. in addition to those, we make sure this is considered in the political discussion upcoming elections presidential and congressional because we in america have to entrust that those we elect to office,

particularly chief executive position will respect the limits of power. ours is not a government of one. for this president to pretend otherwise is an insult to the constitution and an insult to the american people. >> would the gentleman yield? >> yes, sir. >> by the president doing the appointment january 4th instead of january 3rd isn't it true they will enjoy a two-year term, not a one-year term? >> that is not my understanding. recess appointment clause in article 2 section 2 provides recess appointees will remain in power until the end of that session of that congress. so we -- it's interesting, we started -- we held our first session of the second session of the 112th congress january 3rd one day before the president made these recess appointments. so it's my understanding that they will continue in office,

assuming they are not invalidated in some other way, through the end of this session which will last through the end of this year. we'll start a new congress, of course, in january of next year. >> my time has expired. >> i thank the gentleman for giving me what was left. we recognize the ranking member of the full committee mr. cummings. i'm sorry you did. we now recognize mr. lynch for five minutes. >> thank you, mr. chairman. senator, i want to say how pleased i am to have you come before the committee. i appreciate your words and are cooperation, your assistance with this matter. oath, ve to acknowledge, r so this is really just a chat. it's one that i'm enjoying but we do have another panel of witnesses that i would like to get to, so with all due respect i'll yield back the balance of my time. thank you, sir. >> thank you. >> that was quick. >> i can take an oath, if you want me to, by the way.

>> you took an oath already, senator. we think that's more than sufficient for ourselves and for the other body. we now go to give me a second to make sure i don't bypass anyone. we go to the gentleman from north carolina for five minutes. >> senator, thank you for being here. i certainly appreciate your testimony and thank you for the work you're doing, heavy lifting you're doing in your first term with the united states senate. with that i'd like to yield the balance of my time to the gentleman from south carolina mr. gowdy. >> i knew you'd get lucky from a fellow carolinian. >> the congressman has always shown graciousness towards me. i appreciate his yielding. thank you for that. senator, how were you possibly to have vetted the nlrb putative

appointees from the senate. >> thank you for raising that, with regard to two appointees of the nlrb, their names were submitted just right before the christmas holidays, and just days before, in fact. as a result they had not gone through the committee process, hadn't been vetted by any committee, hadn't had time to set up a single committee hearing. and so that in and of itself ought to draw attention to the legitimacy of the procedures, legitimacy of the constitutional analysis that led to unconstitutional recess appointments. it really is a stretch to say the least to say any of these are legitimate recess appointees, 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. there have been under every administration, in every congress, in every senate i'm aware of ever. and the fact that that happens doesn't mean that the president can just ignore the constitution. but that's especially so where they were given to us just days earlier, and we didn't even have time to vet them. >> so you get the names on december 15th. and what, two and a half weeks later, he makes a recess appointment and says the senate is not doing its job? >> that's correct. >> and with respect to the republican appointee to the nlrb, could senator reed have set that for a vote? i'm not familiar with how the senate works. that name had been in the senate for sometime. it strikes me if senator reed were concerned about whether or not there was a quorum on the

nlrb, he could have said that and did not said that. >> as majority leader he controls the senate vote schedule and could have set that for a vote and yet he did not. that opens up another issue which is at any given time we can do these sorts of things through a pro forma session. we have on occasion approved people by unanimous consent in a pro forma session. it has been done in the past, could have been done at the time. the fact it didn't occur hardly means we were not available to act on these. >> well, as i shared with you before the congressman was so gracious to give me extra time, my real concern is whatever we decide this analysis is is going to have to be equally applicable whether we like who the president is or we wish we had another one. so it strikes me we have created something of a ratchet. because once you define it, it is very hard to expand it. once you limit it. it now seems to me the rule is

we're going to give you two and a half weeks to vet our nominees. if you don't, you're not doing your job. if you're out for three days, that's a recess. if we like the laws you pass, like the payroll tax extension, then you're not in recess. if we don't like what you've done, you are in recess, which the political gimmickry, the constitution should be immune from political games. so can you speak to how you were in recess but yet you also passed this payroll tax extension upon which the republic hung in the balance if you listen to the rhetoric. how could you pass that but yet still be in recess. >> of course we couldn't. we had to be able to act. we did, in fact, act. we acted december 23rd, 2011, to pass that into law. the president demanded congress

act. the president subsequently praised congress for moving into action quickly. he signed that legislation into law promptly. he recognized the legitimacy of congress's actions notwithstanding the fact they were conducted at least on the senate side in a pro forma session on december 23rd. notwithstanding the fact previously we had anticipated there might not be any formal business conducted. there was. that indicates the fact that we were, in fact, open for business as we were required to be under the constitution, not having received the house of representatives to adjourn for a period of more than three days. this emphasizes my broader point. my concern is neither republican or democratic, liberal or conservative, this is political ecumenical, this issue is simply an american one, rooted in the rule of law and the u.s. constitution which we have all taken an oath. it is we can't as a constitution, 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 try this nonsense as i am ongoing president. >> thank you, senator. thank you, mr. chairman and the gentleman from north carolina. >> i thankshed g lady from the district of columbia miss norton for five minutes. >> i want to thank senator lee for appearing today. i just want to say i might have found the discussion edifying had there also been present a senator who supported the appointments during this recess, since all senators are known or ri jealously regarding their institutional prerogatives. after that, mr. chairman, i'd as soon get onto the next panel. >> i thank the lady. i will note we took all senators

who asked to be here. with that we recognize gentleman from tennessee. >> thank you, mr. chairman, and thank you, senator, for being here. hearing, i'm going to yield my time back to the chairman issa. >> you mentioned earlier teddy roosevelt's famous appointments. those were specifically when the congress went gavel to gavel. th anticipated historic change of sessions. did the president have that option in this case or could he have had that option to do it on january 3rd? wasn't there, in fact, a moment between sessions? >> i don't regard there to have been an opportunity for him to issue an actual recess appointment.

but i should point out that that hypothetical does get at a different set of facts. that deals with what you might call an intersession recess appointment. >> isn't that one in which the court has spoken frf that is one a court has spoken youing to th spoke. >> that is one the president would know the likely least historically. >> perhaps, in a different set of circumstances if they would otherwise support the conclusion we were in recess for purposes of the recess appointments clause. that would be called an intrasession. >> the president clearly waited. he waited until january 4th. it didn't come to his mind. the decision he sought with malice houg -- malice is

unkund but aforethought. >> it's not an arbitrary decision by the president. he's a careful person familiar with the constitution. i'm certain this was deliberate. >> isn't he sufficiently familiar with the constitution he had the opposite o he was in the senate that he now has as president. >> i think he got it right the first time and should have stuck with his first instinct. >> presidents says he often grows in office maybe he grew out of it, with respect for tha lack of respect for the body he once belonged to. let me go through one or more points. as a house member not served in senate, they let me come over there once in a while and lobby you all but that's about it. you have some interesting rules that are a little different than ours of first of all a motion to

adjourn is still a high standard or low to do, if you will. in other words, it's immediately taken. so a motion to adjourn is could any time any member could move to adjourn even during the pro forma objection unless there was a specific exemption agreed to, correct? >> that's right. >> any member could have -- any member of the democratic party, not just senator reed, could have moved to adjourn in order to create a legitim correct? >> that's correct. i suppose that doesn't account for the need they would have to get permission from the house to adjourn for more than three days. but separating that question out, yes. >> but of course senator reed could have put no one in the chair on the third day. isn't that correct? >> yes. >> no power could have forced him to be in the chair. >> i'm not familiar with any court or any precedent from the supreme court that would have led to a senate injunction

telling senator reed he would have to do that. >> every member in the majority including senator reed had the ability to create a different set of circumstances and did not? >> yes. >> additionally anything that was passed was passed by unanimous consent, correct? >> correct. >> so the fact is the december 23rd vote, any member of the senate, yourself included, could have come and taken that down. it was an affirmative decision that that agreement was going to happen. it wasn't an accident, wasn't like the uc was surprised, people weren't there. >> that's correct. any one of us could have objected and stopped that proceeding. >> you're a little different in the senate and house. i know that because i worked with senate staff. senate staff vets as i understand every one of these ucs. unless the senate staff responsible to the senator speaks to the senator or makes that commitment on behalf of the senator, ucs don't happen, right? >> that's correct. >> you have the process of holds. everything starts with a hold

and then you release them. >> yes. >> so if there had been an actual request for a vote during the pro forma session, request for uc, it would have come up. each of these appoint he's could have come up as a request for uc and a member would have had to show up physically and object to that appointment and that senator reed held no such vote. >> an objection could have been made. that's correct. >> a senator would have to be there to make the objection. >> well, that's probably a discussion for a different day. an objection probably could be made. a hold probably could be imposed on unanimous consent without physical presence but the objection would have triggered a requirement for physical presence. >> and my borrowed time has expired but you've been very illuminating. with that we go to the gentleman from virginia.

before we do to mr. i would ask unanimous consent that -- well, i apologize, that democratic objections to recess appointments, which is a five-page document be placed in the record, including the january 24th, 2012, quote from the gentleman from virginia mr. connolly. without objection, so order. the gentleman is recognized for five minutes. >> i thank the chair and the chair is right in introducing into the record my long-standing view that recess appointments by presidents of both parties have frankly long been abused. i don't believe that the constitution envisioned recess appointments being routine things. they were designed for a time when congress was not in session for long stretches of the calendar. but that requires bipartisan cooperation to fix that problem,

has nothing to do with this president per se. it is a long-standing institutional and constitutional issue. i would hope we could find bipartisan common ground. so i actually find myself sharing many of your misgivings senator lee about a recess appointment. having said that, i've listened carefullyo and i respect it.ll listen to m. i believe a statement by 44 senators in the united states senate announcing they are going to try to thwart the implementation of a dully passed law. it never envisioned you got a second constitutional bite at the apple to thwart it's implementation when you didn't have the votes to defeat it. and i believe that frankly that letter precipitated this issue and that you got what you deserved. and it set us all back for