founding father so wisely included in the constitution in protecting the american people from, in essence, tyrannical rule. and that being understood here because today obviously the partisan nature of washington and the media's focus on that can maybe shift the focus here from this is truly about the constitution being upheld. and if we're not diligent in ensuring in this case decisions upheld, we set a precedent as the gentleman from oklahoma said that, why just in this instance, why isn't au adjourned on a thursday, plan on coming back monday, and the president, whomever would be in that office in the future say, hey, you're out of session, you're in recess over the weekend, i can appoint whomever i choose. that would eliminate the checks and balances and the advising consent rule. >> that's exactly right. and this is what the founding fathers had in mind when they considered but decided against giving the president the

unilateral authority to appoint nominees without senate confirmation because, quote, the people will think we are leaning too much towards monarchy, close quote. we were getting away from a system of monarchy in great britain. we didn't want one here. that's why we did this. you're absolutely right in suggesting that this is a slippery slope and that in the future, regardless of whether it's a republican or democrat in office, this could become a problem and it's a problem that could lead to rendering anullity or virtual annulity. >> i think while i certainly respect my colleague from missouri's statements that his opinion that it's politically motivated, minority members, republican members in blocking. even this f. that was the case, although i think the fact that there was not even a hearing held on the two nominees with nlrb appointees, if if that was

the case, that would be the prorg ga tive of the senator and ultimately the public would decide whether that's a responsible approach or not but it's still the constitutional right and prerogative of a senator to block a nominee for whatever reason they choose, and ultimately the voters will decide whether they were responsible in the conduct they engaged in. but it's not p president's prerogative to say i'm going to assert that authority and unilaterally do what i believe -- what i want to do. so senator lee, i again, want to thank you for your leadership on the issue and your constitutional expertise and knowledge is so important to this debate and the focus this is not about partisan politics. this is about the constitution being upheld and not allowing a dramatic wrongful precedent to be set that could have, you know, lasting implications for the checks and balances of our governing process here in america. so, with that, i yield to the

gentleman from michigan, mr. wahlberg, for the purpose of questioning. >> thank you, mr. chairman. and thank you, senator lee, for being here. appreciate your service and appreciate you being outspoken on constitutional issues of importance. with no ill intent towards you and your service, because as i said, i appreciate your activity, but it's been said much by those of us, the house, a do nothing senate. literal do nothing senate. 1,007 days without passing a budget, without dealing with over 30 bills that we sent for jobs purposes and listening to some of the cynical pandering by some of my colleagues in the aisle saying that we're not doing anything with jobs. it's frustrating. when i go back to my district and i hear the frustration of my people who are frustrated not simply with democrats but with republicans, with us all that

things aren't getting done, it is challenging to take that, knowing that we're attempting to do it. so i can certainly surmise how the president might feel when he sees his senate not -- not providing affirmation to his appointments, confirming them, and letting him go on with what his purpose is, what the intended process is about and what his objectives are. i can understand that. but here in the people's house we understand more maybe than any othther branch what that mes in giving the privilege and honor of representing the people instead of something more than just whims and wishes. i would love to say back to the people in my district at many times when i'm not thinking clear clearly, we'll just do it ourselves. the constitution doesn't allow that. you made it clear. senator lee, could you explain to us as clearly as possible why

there is an important process called confirmation that only the senate is given to do and what important outcomes that has for the people of this great country under the constitutions established before then? >> executive branch officials, particularly in this day and age, and including and in particular these nominees. hold positions that wield enormous authority. law enforcement authority and in some instances, somewhat regrettably in my opinion wholesale policy making authority that can almost be likened to the authority that we wield as legislators. but regardless of how you feel about the underlying statues that give enormous policy making authority to executive branch officials they wield tremendous authority, as do federal judges who also have to go through the confirmation process. and so the founding fathers felt

that it was absolutelyi is imperative that these nominees receive, in instances -- in all instances where the senate was not in recess, the rubber-stamp of at least one house of congress. and for whatever reason, they chose to give that to the senate. and because they did, we take seriously our role to make sure that the president's nominees get vetted, to make sure that any who do not have the support of those voting in the senate don't get confirmed and don't move on. i think the best way i can summarize my answer to your question is just to say it's important because it's what the constitution requires. we have to follow the constitution, even when where it's frustrating, even where it doesn't make sense to us, even where it might thwart the objectives of our president, we have to follow them. when we don't follow them we set a dangerous precedent because if we're willing to ignore them for one purpose of the other, for the political convenient of the president or someone else, we

ourselves remain vulnerable in every other area. we rely on the constitution to protect our free exercise of religion, free speech, every other right that can be found in that constitution. we have to honor its procedures as well or else they won't be there for us when we need them because we always need them. >> we always need them. and the senate, unlike the house, at least originally intended, i know it's been amended with the 17th amendment, represented the states, a broad concern, not just individual people in concern, but a broad concern for the whole future of this great country as undivided states, pulls together. when i hear the president in the state of the union address talk about we need to get this done, if you won't do it i'm going to do it, that's a concern. and i think it's being acted out and expressed in this process here of non-recess recess appointments. stepping down on the

constitution. making a constitutional crisis and denigrating the body that is responsible for confirmation, oversight, care for what this country needs, and in making sure that we don't have a monarchy. i know my time is expired. i appreciate your commitment to the constitution and affirmation today of its primacy. thank you. >> see nothing additional questions, i'll thank the senator with one closing question or went -- wait a second. well, we will have one more. but before we do that, just quickly, i suspect that the reason that the founding fathers gave you the requirement for advice and consent is they intended you to do a lot less than you're doing with the people's work of the house. i might just mention that. they didn't expect you to screw around with appropriations quite the way that you did.

but having said that, i just wanted to ask you one quick question. if we wanted, as the president wants, up or down vote on every one of his appointments and he wants them in a timely fashion, would it be equally fair for you to consider every vote of the house that we send over that dies in the senate and for us to c consider every senate bill, forced to consider every senate bill in its form that comes over from the senate? isn't it that sort of that entire bucket of it is the way it is, not the way we would like it to be? >> yes. you know, the fact is, governments are made up of individuals, especially in a representative government like ours. individuals have opinions. those opinions in the case of elected officials are based most frequently on the opinions of those they represent. we do have a country in which people disagree. we're not always going to have agreement. so, yeah, it is true, i suppose, if you take the same logic that

we're doing to say let's have a rule change with regard to prompts, automatic consideration of all nominees. the same logic might go prompt and automatic vote of consideration by all house and senate legislation. vice versa. >> i thank you. we now will get to our final questioner, if you have the time to give us five more minutes. thank you, senator. we now recognize the gentleman from arizona. >> thank you so very much. this just brings the point of reference that this isn't the only thing that you may have seen as a violation of our constitution, because it seems that we fain these rules when we want them and we disdain them when we choose to avoid them. are there any other things that you have seen this administration do besides these appointments that have bothered you with regard to the violation of the constitution rules and regulations? >> i've had a number of disagreements with this administration, both on matters of policy and on matters of

constitutional interpretation. let me just focus on two or three. one dealt with the president's decision to engage the united states in something that i consider a war in libya without a declaration of war from congress. that is a congressional prerogative. article i section 8. and not only did he not get a declaration from congress, he didn't even consult congress. he looked at a few leaders of congress as the jets were under way to take that action but he never got a declaration of war. i wasn't real pleased with that. nor was i please with the president's decision to sign legislation that i read as undermining the fourth, fifth, and sixth amendment rights of individual americans that can be read, as i read it, to give the executive branch the power to detain indefinitely, even u.s. citizens, without trial, without

a formal grand jury indictment, without the right to counsel or trial before a grand jury, based on an allegation that they've become enemy combatants. he signed that while protesting, i disagreed with his decision to sign it. i certainly disagreed with the policy in the konsz constitutional analysis that wouldn't into passage and signing by the president of the affordable care act. and i disagree with the constitution alanal sis outlined in this 23-page memorandum written by the office of legal counsel. very good lawyers. some of the very best i know and they did the best job they could. they came to a conclusion that is wrong. >> so, senator, so if we exert, you know, trump the constitution, the checks and balances are relatively slow, are they not? >> yes. >> so you have the monarchy looking at the ability to enforce or push something forward without having a means to correct it very quickly?

>> yes. yes, that's right. and the fact that it's slow is, by design, that's how we prevent the undo accretion of power. and that's why we split up the power of the chief executive. now, it's interesting. every time our federal government has expanded and every time the authority of the executive has expanded at the expensie pen expense of the congress and at the expense of the state. you have one common ingredient. a president. presidents like woodrow wilson, especially woodrow wilson during and the lead up and aftermath of world war i who have said, look, these are -- these are desperate times. and i've got to be able to act and i can't be slowed down by this elected body who doesn't want to do my will as quickly as i want it to do. if you look back to that era you

will see a lot of individual liberties were violated and the government expanded to the federal level at the expense of the state. we need to not make those kinds of mistakeses again and again and again. this is the kind of thing that, if left unchecked, will easily turn into another one of those mistakes. >> and i caution my colleagues on the other side of the aisle of upholding rules. i hope they remember that tomorrow when we have a special guest. i'd like to yield the balance o arizona. thank you, general, for how generous you have been with your time this morning. two more things and i'll shut up and let you take the remainder of our time. assume they are going to be void 12 months from now, 18 months from now, what's the practical impact of having a year and a half worth's litigation that's been undone and it would please consider amng long with your colleague like mine that are

otherwise in the sit senate, see that you do have standing to stand up for the prosecutional process. >> the parties will have undertaken a significant effort in litigating the validity of orders issued but the nlrb and the cfpb. hopefully no one company will have to litigate that litigated by both entities but i guess that's possible. in addition to the expense and delay related to litigation, these companies and other company, even those who may not be litigating, even those who may just be anticipating an order be right not receive it during that time, will inevitably have had to avoid making the the kinds of investments that we desperately need in order to create jobs. it's almost impossible to measure, to quantify it in any precise sense the amount of

economic loss that will come from this. but one thing of which i can be sure is that laws will come and it will be significant. and so this is yet another reason why we shouldn't be doing this. sometimes my wife tells our children, just because you can do something doesn't mean that you should. now, perhaps the president can do this and get away with it at least for the time being as a matter of raw political power and whipple, but the fact that he can do that doesn't mean that it will in the long run survive constitutional review. i don't believe it will. and more importantly, it doesn't mean that he should. there are established procedures that go along with the recess appointment power. it is in the constitution. it's there. but he needs to follow the practice, the procedure, that makes sure that it doesn't swallow the rule. you can't let this exception swallow the rule. and that's the risk here. he's doing this not just at the expense of individual senators.

that's not the important thing. he's doing this at the expense of the people. the people who are living in an economy that's depressed, job creation is low, and in part because of actions like this that create uncertainty in the marketplace. you have my assurance that i and my republican colleagues will continue to explore and attempt to exhaust every available option including any that may be available in court. i've been advised by some legal experts that is very unlikely that we individually would be able to establish standing. but, we know that it's inevitable and it's true that those will have standing and at a minimum will be on the participating in those actions. so we would like to do that. >> the gentleman's time has expired. seeing no one else seeking recognition, senator, what you have done for us is especially appreciated. it is not often that members of

the house or the senate gives us so much time to answer full questions in their area of expertise. tell your colleagues always welcome. with that, we'll take a recess while they set up the next panel. the committee will come to order. we are pleased to have an extremely distinguished panel.

i will introduce you from my left to right, your right to left. first we have the honorable c. borden gray, formerly heads the firm here in the district. mr. gray served as white house counsel during president george h.w. bushes administration and as an am bar ambassador. mr. andrew pink cuss is a partner of mayor brown who advises clients on a host of financial services issues and is testifying today on behalf of the united states chamber of commerce. mr. michael gearhart is the distinguished professor in constitution allow and director at the university of north carolina school of law. mr. david ripken is a partner at baker and cochairs the firm appellate practice and white house counsel. mr. mark carter is a partner at d nsmoore where he advises clients on traditional employment labor law. mr. carter has experience

litigating pursuant to committee rules all witnesses except members of congress will be sworn in before they testify. so i would ask you to please rise and lift your right hands. do you solemnly swear or affirm the testimony you're about to give to be the truth, the whole truth, and nothing but the truth? may the record reflect all witnesses answered in the affirmative. we are pleased to recognize you for your opening statements. i'm sure all of you perhaps have done this before. know what it traditionally mean in life. with that, we would recognize ambassador gray. >> mr. chairman, thank you very much for the opportunity to testify. you've just heard extraordinary tutorial in a way from senator lee covering almost every aspect of this issue, both constitutional and practical. so i'm going to try to keep what i say at an absolute minimum

since there's very little i can add. i'm going to start with the point that as far as cfpb is concerned, there are many who think it's quite unconstitutional with the lack of oversight, so the recess comes in, without a confirmation process or bypassing or ignoring the confirmation process and provides even less oversight. as a practical matter, what has happened here and what will happen, if you look at the footnote 13 of the olc opinion, is that what the white house has done is basically established the basis for eliminating any need to comply with the confirmation process. what we have here has been discussed in senator lee's testimony, not a delay, not inaction, not the senate lolly gagging, but a situation where

one nominee was, in fact, considered and addressed by the senate and rejected, albeit by filibuster to be sure, but the reason doesn't indicate anything different were to have happened if he had been defeated on an up or down vote. the other two nominees as been discussed were barely there. filled out their forms. this wasn't a case of delay. it was just avoiding the constitutional process. footnote 13 says there's no minimum time, so it could happen over a sunday. i want to just say a couple of points about what this means for the business community. i don't want to take any thunder or even downplay from what the others are testify to. especially, andy pinkit is coming after me representing the chamber. but there's a lot of uncertainty. the president has given no guide

dan dance as to when he's going to do this, what agencies he will pick, what the reason will be. he's said nothing about that. and all agencies are under some that have openings are under some uncertainty. we don't know the litigation impact of what will occur. the olc opinion, as have been observed, mepntions that there are litigation risks. i don't recall a single instance when i was white house counsel that we asked for an olc opinion coming out saying this was a litigation. i don't recall that happening. that is a real red flag, but it certainly does set into a high uncertainty, anything with these agencies do with these appointees. regulatory uncertainty is a real problem. we don't talk about it that much, but in my experience, in the business community representing clients in the business community, having been

a businessman myself, there is nothing more damaging than uncertainty. not knowing what the rules of the road are going to be. and for people subject to the lrb with very, very broad jurisdiction, people subject to the consumer protection bureau, extraordinarily broad jurisdiction with no accountability by a political branch no, accountability by the white house, no accountability by the congress, and no accountability really by the courts which are required to defer to the rulings of the consumer bureau, there's going to be amazing uncertainty that results from what has happened here. it just -- it just is unprecedent unprecedented, in my view. i want to just close by making a couple of personal remarks. i, of course, watched over this as white house counsel, as any white house counsel would and does. but i was also on the receiving end as an appointee in bush '43.

i was recessed at a legitimate three-week recess because of senator reid, i was -- i was not re-recessed because president bush thought that it couldn't happen. at the time i was frustrated by it. it made me instead a special envoy. i want you to know that i was a special envoy, but i never felt as frustrated as i was that anything unconstitutional was being done by senator reid. i have a lot of other objections as to how he tried to block me but not the actions he took in the senate. thank you very much. >> mr. chairman, ranking member cummings, thank you for the opportunity to testify today on behalf of the u.s. chamber of commerce and the hundreds of thousands of businesses that the chamber represents. the chamber strongly supports the goal of enhancing consumer protection. but we're extremely concerned that the recess appointment is actually going to have the

opposite effect. creating confusion and uncertainty for businesses that want to comply with the law and imposing unnecessary and duplicative costs on legitimate businesses. rather than focusing on the constitutional issues, which i agree with ambassador gray, it's been well discussed, i would like to focus on these constitutions for consumers, for businesses, and for the economy of the judicial determination that the appointment of the director violates the constitution. and i think it's important to understand that the dodd frank act provided prior to the appointment of a director some of the powers of the bureau could be exercised by the treasury secretary. these included rule making under federal consumer laws that predated dodd frank. very important lending laws, home mortgage disclosure act, conducting supervisory examinations with banks and assets over $10 billion.

and taking enforcen't actions. and prior to january 4th, the actions taken in the bureau's name reference this power a presumably were approved by this secretary and his need. now, of course, all they are doing to do that. if that authority is held illegal, all the bureau's actions, including those that have recently been taken under this treasury secretary's department will be imbalanced. what previously had been clear power to exercise some of the bureau's all right authority has been replaced by significant uncertainty with respect to all the bureau's authority. to take an example on the remittance's rule that is going to go into effect on february 7th and that the bureau just issued could be challenged on this basis even though it could have been issued under the treasury secretary's authority. the same is true of the mortgage underwriting rule that is now being finalized by the bureau.

you have a situation where actions that would have been lawful, at least couldn't have been challenged on the authority basis before january 4th, are now going to have a significant cloud over them and we believe there's a very strong chance the courts will find them unconstitutional. find the recess appointment on constitutional. if that happens, what is the legal effect? the answer is clear, all the bureau's elections will be invalidated. the practical effect is just as dramatically. there is a real possibility of gaps in consumer protection. furnishments the bureau invoked on fraudsters, they will be overturned. new regulation since the ones we made could be, the bureau acting under the treasury secretary's authority or by the bureau working in tandem with the ftc and other agencys will be sent back to square one.

second, real confusion among certainty for legitimate businesses. what businesses want as ambassador gray said, are clear rules of the road. they will have exactly the opposite. if the courts, should they comply with the rules that complied before the director was appointed, should they comply with the new standards even though they're now legally questionable, with the director's appointment invalidated who is going to provi provide guidance to businesses about what they should do? there's going to be a prolonged period of uncertainty. finally, duplicative compliance clause. business ves to go back to restructure their operations to comply with old rules that means unjust fi and excessive claws. that's money businesses could have used to create new jobs, to expand their operations, something that our economy needs. so the overall effect of the recess appointment is to put at risk significant