of us who have as was introduced into the record, recess appointments as a separate issue. i guess with all due respect, consider this a rebuke, because i think it's an extraordinary thing apriore to announce no matter what, no matter the virtues of the appointees, no matter the fact we have to respect a law was dualy passed, we're going to thwart it. we in advance are announcing we're going to oppose all appointments to prevent that implementation of the law. i think that's wrong. you win, you lose fair or square. you've indicated many of your constituents are nonplussed about this action. i would hope they would be equally nonplussed at the extra constitutional decision by you and many of your colleagues to thwart a implemented law. that's my opinion and i yield back. >> before yielding back, would the gentleman want to ask about

the nlrb. you dealt with one -- do you have questions on nlrb brf i don't have any questions, i issued my statement but i would say my statement applies to that as well. >> the gentleman yields back. now to the gentleman from michigan for five minutes. >> thank you. i want to thank one of my favor senators senator lee for being here and i'm going to yield my time to mr. guinta. >> i think the gentleman for being here this morning and two points for the record, i think he is here first because he asked to speak on this subject matter and we want to hear what he has to say. secondly he's got a rather unique perspective on these issues with his background in having opportunities to clerk in the third circuit court as well as supreme court is my understandi understanding. i thank you for your comments. i want to be clear, i don't support what the president did. i looked at this issue.

i spent quite a bit of time looking at this precedent. i think this president in this circumstance overstepped 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 has the power to determine when in recess. >> based on the constitution and practice as evolved over the last two centuries. we're expressly given the power to determine rules for our own producer and internal governance and we do that. >> so the president is relying in making this recess appointment on the office of legal counsel's justification in a memo they i should. their memo essentially said llc effectively asserts the president may unilaterally

determine if the senate is in recess for purposes of exercising his recess appointment power. he's looking at the president's legal counsel's opinion that says he can decide when the senate is in recess. however, there's clear precedent that states only the senate has that authority. that's problem number one with this process. the other points i'd like to make in 1993 during the clinton administration the justice department filed a legal brief in court before the district of columbia that unless a recess lasted three days a president could not make an appointment more than three days. the third point i'd make, then solicitor general elena kagan

acknowledged before the supreme court the senate may act to foreclose the president's recess power by declining to recess for more than two or three days at a time over a lengthy period. presidents have not in recent decades made recess appointments during intrasession recesses lasting fewer than three days. so there is most recent opinions and precedents set by those who would likely support philosophies of this president who acknowledged what this president is doing is wrong." to speak to what the gentleman from virginia mentioned, this should be about appropriate powers of the executive branch. it should not be about republican or democratic philosophies. it should be about the country and what is good for the country. i believe all of us in the legislative body as well as executive need to adhere to the

precedents and laws established. without doing that these bodies cannot gain greater credibility with the country. i would submit it makes sense the president of the united states in this circumstance he erred and should resolve it to reinstate the faith in the process we have. >> if i can respond to that, thank you very much congressman. i share your concerns and i've reviewed the office of legal counsel's 23-page single spaced memorandum. it's well written. it's well researched in the sense it points out the precedents but reaches a conclusion at odds with the very precedents you referred and the logical positions you referred. responding to that i'd like to respond simultaneously to congressman connolly's point. i think they kind of lead to the

same conclusion here. i understand and i share the frustration so many americans expressed over the fact there are delays at times. sometimes long delays. sometimes delays that don't get resolved until after that congress is over or that president is no longer in power. that is frustrating especially those whose names are on the line to be confirmed. as frustrating as this is, constitutional government is necessarily, by its very nature, frustrating. it was designed to be frustrating in the sense it was designed to make sure it wasn't so efficient we just passed laws really quick lip. efficiency doesn't always lead to liberty and frequently it leads to the opposite position. so the fact this process is frustrating, the fact there are at times delays, the fact the delay has at so it's the prerogative of the senate to do

justify circumventing the constitution and saying this is really necessary, this is really important, i'm therefore going to do this. at every turn when we tried that in the country it hasn't ended well. i'm determined not to allow that to happen here. i'm not about to stand idly by as this president gets establish knowing full well it could and will be abused in the future, not just by democratic presidents but by republican presidents. >> i thank the senator for your comments and thank the gentleman from michigan for yielding. >> i thank the gentleman. mr. welch of vermont. >> i thank senator lee for being here. i have a short statement. there's an air of unreality. i find it extremely discouraging. mr. guinta is right. you want us to stand by the rules. you're making a passionate statement about the rules.

this house institution by the senate is totally dysfunctional and we are in the process of proving the point. there's a fundamental difference between deliberation, destructive delay. that's my view. i think it's the american people's view. the rules we work by in the wor the senate, those are designed by senators and house members and suit our interest. they don't get elevated to constitutional rights, they are rules that serve the interest of majority party in both bodies. the problem we're having here is democrats can't work with republicans in 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 answ answer, to move forward on the business america needs to be

duchb done. it is an astonishing spectacle what we're doing refusing to do the business. we haven't passed a budget. i don't point the finger of blame at one party or the other. this institution isn't working. it's had a history in the past where it's been able to make decisions. so when we have what sounds to me like a very academic discussion, and i put myself in the seat of a constituent of mine wondering what is it we're talking about, we have not passed a budget. that is disgraceful. two years ago when the democrats from majority, finger of responsibility was pointed by colleagues on the republican side at our failure to do it. now the republicans haven't been able, in the majority at least in the house, not in the senate but active and powerful minority we haven't passed a budget. this is very destructive. at the end of the day you may be right in your legal argument but it is not going to move this

country forward whether you're right or president obama is rig right. i think we have to move past these procedural maneuvers we create to allow us to assert our will and make decisions, do it in an up or down vote, allow there to be clarity for the american people where we stand. if they don't like the vote we made, they have an opportunity the next election to send somebody else to do it. thank you for being here but i don't think we're getting anywhere. >> i appreciate your comments. your concerns are very legitimate. i share very many of them." let me reinch size delay is built into the position. part of the delay is constitutional. part of is based on the rules of each body. the rules of each body are, of course, constitutionally the prerogative of each body. the president of the united states when he gave a state of the union address last week in your chamber here told us what

he'd like is to see a rule change and a policy change in the senate that will lead to up or down vote for each nominee within a finite period of time. that is ultimately a decision for senate to make. i think that is where the debate and discussion over this ought to be. in other words, the frustration that he has, that members of this body have, members of the senate have, american people in general have ought to be directed towards whether or in what way senate might change the rules of procedure, not saying we're frustrated with those rules. we're frustrated with the way they manifest themselves in delay, and we therefore want the president to ignore the constitution. that final conclusion doesn't -- isn't the natural, logical legitimate product of saying we're frustrated. we ought to have a discussion about the rules themselves and not capitulate and say let's

give up and the president can violate the constitution if he wants. gentleman yields back. mr. guinta is recognized for five minutes. >> thank you, mr. chairman. i would simply add while i don't disagree with the gentleman from vermont's comments relative to let's focus on the legislative side on action and moving the country forward, relative to policy it also is equally important we reiterate to the country we're following our own rules. we teach our families, children rules are important. i get to go home on weekends and see my third grade daughter's basketball games. there are rules. it's a very important lesson to teach our children to abide by them. if we simply can't do it for what i think is an incredibly important body, the congress and the president, then what kind of

message is that sending to the nation? i certainlily appreciate my colleague's position relative to the legislative requirements of both bodies. i would agree with him and urge both bodies to work together on a budget, the appropriation bills. maybe you could remind the senators we did in the house pass a budget last year and we are going to pass another one thisspond. but i'd like to yield theime bae chair. >> i certainly appreciate my colleague yielding. it's interesting my colleague on the other side of the aisle said your legal argument might be right. sort of an interesting point of debate, what's the constitution among friends, right? that old saying. let me ask you a couple basic questions. how many republicans are there currently in the united states senate. >> 47. >> and is 47 senators, is that a

majority of that body? >> no. >> interesting. okay. after the 2008 election i know you weren't a senator but weren't there 60 democrats in the united states senate? y yes. to the other 40 , do they even senators in the elevator. >> not much. >> right. so let's just understand historically where this president has been. he had a supermajority in the united states senate after 2008 election. he was able to pass the stimulus through the house, through the tesingle vote from 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 supermajority in the united states house. well, let me restate that. he had 59% of the united states house after 2008 election.

so this idea that he's complaining about the congress's inaction is pretty absurd. so let me go to the cfpb. in the president's lawyers said there's a great risk, a litigation risk on anything the cfpb does would be challenged based on constitutionality does, anything the labor relations board could be challenged based on this president's unprecedented action. you know, looking at that litigation risk and the amount of uncertainty that creates for small businesses, even big businesses and the impact it has on the economy, that is sort of the net impact of this debate we're having. now i know you're a constitutional scholar but i understand you represent folks in utah that are concerned like my constituents 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 that the senate is in session every three days when you're in pro forma session. why if the house doesn't agree to adjourn, why does the senate meet every three days? where does that come from? >> article 1 section 5 of the constitution provides we may not adjourn without the consent of the other body for a period of time longer than three days. >> okay. >> because the house of representatives didn't grant us permission to adjourn for a period longer than three days we had to continue to meet every three days. >> okay. when does this date back to, this action by the senate in practical impact. i know it was written. >> the last vote, last roll call vote on the floor of the senate prior to the christmas holidays was taken december 17th as i

recall. >> and so for the next almost month it was pro forma session. >> correct. >> as was the house. >> correct. >> 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's chilling our economy and chilling the creation and growth of jobs is uncertainty, and at a time when americans and american businesses face regulatory compliance cost at an astounding rate of $1.75 trillion a year, almost equal to the collective tax burden of the american people, the one thing we don't need is more uncertainty in our regulatory structure. the fact that we may -- american businesses may become subject to

an order issued by nlrb or cfpb at any time that may not be valid, that could be suspect in terms of their validity and therefore subject to litigation, litigation that would be costly and would prolong the uncertainty associated with the orders but litigation that would become necessary. in many instances it might be a make or break moment for the company. this is exactly the kind of thing that will make our already dismal unemployment problem substantially worse. this has real ramifications. this is not a hypothetical entry, an abstract problem, this affects real americans struggling to get by, struggling to find full employment and good compensation, this complicates that many fold. >> thank you, senator lee and thank you for your testimony. i want to mark this down as a member of the house, we always have a bit -- we chafe a bit at the,s of the senate or inactions

of the senate. but that's not a new thing nor is that a partisan thing. it's as old as the republic itself. the senate is designed to be inefficient. by god, it lives up to that expectation. so with that, i recognize mr. clay from missouri, the gentleman 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 known as recess appointments. let me say thank god for recess appointments, that we were able to appoint richard cordray as the leader of the cfpb, because it is the law. dodd/frank is the law of the land. and it's necessary that we observe the law. we are a country of law and

think about, you know, the function of cfpb consumers. and to have this to come to the will of a minority of senators who don't want to see this law implemented, the american people know what you're doing. and pretty much this president has pulled the wool off of what you're trying to do. we know your trying do thwart any achievement by the administration for political purposes. and so, let me, again, restate, thank god for recess appointments and, also, for the nlrb, so they can be up and running and functioning as a full -- 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. it doesn't require a response. >> mr. gilbert, if i could respond to that. >> it doesn't require a response, mr. chairman. >> weshlgs sill, sir, i'm sure witness would like an opportunity to answer. >> thank you, mr. chairman. i appreciate the fact that we have laws and i need to point out that from time to time congress will pass a law and then not fund the office in charge of enforcing that law. it actually happens with some regularity. it's happened when republican congresses have enacted one law and subsequent democratic congresses have refused to fund it. the fact that the law is created or not funded or the subject of full appropriations by a subsequent congress is not lawless. it's 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 mormon in missouri. i don't know whether that was, in fact, embodied in a statute. it might just reflect the, termination order indicate that all mormons, members of my faith, could be exterminated. i'm grateful that wasn't funded, that that wasn't executed. this is a very different kind of law than that one but the fact that something is put into law one day doesn't internally, obligate subsequent legislative bodies to fund activities occurring pursuant to that very law. and that's exactly what it means to be in a constitutional republic. we elect people. those people pass laws and make decisions about how government is to be funded. >> i bet my colleague wish toes respond. okay. i certainly appreciate it. i would say to my colleague, if the chair may say, i will enjoy reciting your quote today when we have a republican president.

and perhaps that will happen. who knows. but i certainly appreciate my colleague's indulgence there. with that, mr. lankford is recognized for five minutes. >> thank you, mr. chairman. senator, thanks for being here. and i can understand how the president can be frustrate with the senate. you as a member of that body i'm sure you vechb more frustration with the senate than we do here in the house, if that is possible. >> it is. >> after 1,000 days of working on a budget coming out of the senate, we're all frustrate with the senate and trying to figure out what is going to happen there. the question results around, do the ends justify the means though? can we say cfpb is going to do a good thing so do though i know it's not appropriately and constitution ally legal we'll gt something good at thend? can we do that in a constitutional republic? >> no, 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 ends can justify a willful disregard for the restrictions of the constitution. >> well, let me ask you a follow-up question then. who gets to define what a recess is or an adjournment is? does the executive branch define for a legislative branch or does the legislation branch what's an adjournment or recess? who gets to pick that? >> the senate gets to decide when it's in recess. that is true -- so the president can't step in and say i now declare you in recess? >> that is correct. he doesn't control our part of the government, much as he might wish would be true, much as every president might wish to be true. >> in 2007 when senator harry reid kept the senate in pro forma session to keep the bush administration from appointing people and the bush administration acknowledged that by not appointing people saying the senate has defined they're not in recess so they're not in recess, when this administration says, i don't accept the

senate's definition of recess, we're going to redefine recess, what precedent does that set? >> it sets a new precedent, one that i fear could easily turn into a one-way ratchet in which subsequent presidents, presidents of both political parties, will be unwilling to retreat from that new high watermark established as a presidential pre presidential prerg ga tive. that concerns me. >> the president also said they have communication from the senate that it's a recess. if the senate didn't talk to me in sending messages. did any bills pass between the 17th of december and the 22nd of january? >> yes, there was. in fact, there was a very significant piece of legislation passed. one that the president urged the congress to pass, on december 23rd, 2011, dealt with the payroll tax holiday extension. >> the president stating no communication was happening is not accurate. these preform what sessions did allow for communication and for business, the statement is made this is not for business

purposes, obviously the payroll tax extension did pass and seems like business to me. >> that assertion is neither factually accurate or correct as a matter of constitution allow. >> did the senate ever have hearings for the gaents on nlrb, the three of them? >> no, two of them there was no time to convene such a hearing. >> the a consent, there wasn't a possibility of hearing. so to say this is a recess appointment, there was no possibility. there wasn't a t matter of i submitted them earlier, this is a matter of, oh, while you're out of town i'm going to put you people into office for the next two years. >> that's correct. >> okay. i have a letter from the associated build eers and contractors i would like to enter into the record. not only -- this is from the association of builders and contractors. not only will this red call nlrb antiworker and antibusiness action further damage prospects of job growth, questions of the

nlrb's authority to act will invite litigation and ambiguity at a time when we need it the least. i would like to ask that this be entered into the record. >> without objection? >> i have serious issues which i can hear from you as well because of the precedent this sets. it sets a precedent that a president at some future date can reach into the senate and define when they're on recess and when they're not and who he can appoint and who he cannot. and extend it into the january time period to get two years. with this precedent, if it stands, i don't see anything in the way from some future remo r remotorial day weekend the president saying the senate is not communicating with me over this weekend, i'm going to fill every court vacancy across the country and they will be there the next two years and you can't stop me. do you see anything in this that would not stop that? >> logically it would be a very short hop, i deed, from the olc memorandum justifying or

purporting to justify these recess appointments and the kind of recess appointments you described occurring over weekend r a weekend. >> with that, i yield back. i would absolutely yield. >> one quick question. mr. conley sort of berated and told you of his disapproval. who would have or could have, not the 44, the 47, who could have, in fact, held hearings, particularly let's talk about the nlrb, who schedules those? >> the committee. >> the committee is controlled by? >> democrats. >> did they schedule a hearing on an nlrb appointee? >> not the two nominated on december 14th. >> and who could have scheduled the vote on the first one? >> democrats in the senate. >> and it wasn't the 44 that stopped that, was it? >> correct. >> thank you. i yield back. >> gentleman's time has expired. i yield myself five minutes for the purpose of questioning, senator lee, i appreciate you

being here with us and your leadership on this important issue. my colleague from oklahoma concluded with the main focus of my questioning and that the precedent here is pretty dramatic, if we do not undo what has occurred. and it's my understanding the department of justice memorandum that in essence said that the president has a unilateral authority or ability to decide when you, the senate, is or isn't is unprecedented in this sense. is that your understanding, as well? >> yes, i'm aware of no precedent anywhere and there was none cited either in the olrc memorandum or anywhere else i'm aware of identifying any presidential recess appointment occurring under this set of circumstances. >> i think in your testimony you emphasize this is not partisan politics, this is about the institution of senate and probably most importantly the checks and balances that are