protection actions that would have rested on firm authority. and the potential conversatio c going to hurt consumers, businesses, and the entire economy. thank you and i look forward to answering the committee's questions. >> mr. gearhart. >> thank you for the opportunity to be here today. i greatly appreciate the invitation. at the outset let me just make two quick personal comments, if i may. first of all, as a conversations stul law professor i have to tell you that there's nothing more special no, greater honor than will is for me to be able to participate in a hearing like this. i am grateful for that. at the same time, i speak for myself today and, of course, not nowhere else or not for my institution. let me at least say, someone who teaches at the university of north carolina law school, let me speak for the record that mr. gray is a north carolina treasure. i hope you will allow me that. of course, i also understand you've got my written statement

and i don't want to go back through that in any detail, i do want to take my brief time today to focus on a couple of issues. the first one of which, of course, has to do with major question that has concerned this committee and other people and that is if t. question about whether the time in which the president enacted was, in fact, a recess and constitutional sense. let me just point out for the record what we haven't said so far. to begin with, courts generally treat that action with a presumption of constitutionality. second, it should be noted that virtually all authorities agree that a recess is not a fixed time and that the president of the united states does have an independent judgment about whether or not there is a recess in a constitutional sense. moreover, almost every thought and i think almost every president has agreed in exercising judgment about questions like this, the president seemed entitled to take what we call a functional

approach, aal analysis. that is, i think, what the president of the united states has done. at the same time, the president of the united states, i think, is understood that if in this circumstance we assume that the break that he counts ads a reces is not a recess then the senate, in effect, as a power through pro forma sessions to completely nullify the recess appointment authority. in a sense, i think the president has acted sensibly and soundly to defend his own prerogatives. beyond that, i think the memorandum from the office of legal counsel who provides one basis for his actions is a perfectly sound document. it notes, for example, that over history, presidents have taken a functional approach to determining whether or not they should exercise power. beyond that the document notes that this is not the first time that there's been a disagreement

between the president and senate over whether or not there's a recess. also notes that courts generally speaking are reluctant to interfere with the president's exercise of judgment in this context. all of which leads me to think that the president's case here is a sound one and a credible one. beyond that we have a question about the president's duties under the constitution. recall that the president takes an oath to take care, to enforce the laws faithfully. no doubt in this case the president considered that if he didn't act there would be laws left unenforced, laws that he obviously trying to do what he can to put into implementation. we talked a lot about uncertainty today. but i think it's fair to say that the uncertainty doesn't just cut in one direction. there are a lot of americans i suspect who are uncertain about what's happening with the national labor of relations board, what's happening with the

consumer of financial protection bureau, and they're concerned about what happens in these laws are not enforced, if there are certain regulations that are not made in this context. i suspect that the president took all of those concerns into account in determining on balance that the time was right for him to act. lastly, i would just want to emphasize that if we look into the past, we will find generally speaking the courts don't overturn recess appointments. i think even like those we were talking about in this case. i think the doctrines that pertain to case or controversy, i think the timing of the lawsuit are all such that's highly unlikely that these recess appointments will, in fact, be overturned. but i should also point out the constitution provides a check, actually two checks on the recess appointment authority. one is that they're temporary. the other is that the man who made them is politically

accountable. i think we should keep in mind the full set of checks and balances when we talk about the constitutionality of what occurred in this circumstance. >> thank you. mr. ripken. >> mr. chairman, mr. cummings, it's a pleasure to be before you. i'm speaking on my own behalf and not on behalf of my law firm or clients. let me briefly walk through what i consider to be some of the most unfortunate implications of what i consider to be a number of other individuals unconstitutional use of recess appointments by the president. first is the case with most, separation of power disputes, they trans trans dend immediate circumstances. they are either agencies involved. i'm not going to predict the prediction that you heard that the courts will not so much,

with respect to professor ggerhardt would not nullify them that would have been put out by the two agencies and during the ten-year ones with individuals. i'm not going to talk about mass regulatory uncertainty. when we talk about the constitutional implications which to me is somebody who cares passionately about the institution, most important problem here is that the president's actions put at risk congress' own rights and prerogatives. the most important one, of course, and we heard about it earlier today, is the scope of congressional power to determine the rules of its proceedings until now. it's always been assumed that congress alone can set in terms of his sessions and evaluating compliance with the rules, the president's functionalist approach effectively strips this power from congress claiming

that he may look past congressman own judgments and determine for itself the legal effect. what i would like to tell you is the approach would allow presidents who vote parties on nearly any congressional action and precisely tip them away from who is in power. we heard a discuss about how that would work in the context of appointments. the president, inkeyed, an entire regulatory branch. and, therefore, this very important check and balance that the framers placed on the senate. but let's talk about renlg lative power, pass legislation as such. let's begin about a pointments for a second. the president, of course, as we all well know is a participant in the legislative process but he does not have an absolute veto. presidential vetoes can and not be overridden. a president's function of

approach, the president, for example, might take the position but any legislation passed by the your rum in the state and as we all know, much of the senate's business cess done without a quarter. with that matter, without a vote being taken. there is nothing untushl about pro forma sections. that legislation r lags is lags and unlawful. without invoking even the need to veto it. the president can determine for himself when congress is in recess concerned is so-called pocket veto. the constitution provides a bill is passed by congress and not signed by the president, it becomes law. within ten days, sundays expected, unless congress by its adjournment prevents the return of a bill in which case the bill dies. if the president is able to determine for himself when

congress is in senate he could take the of position that congress is in recession and therefore he can effect pocket veto any legislation he dislikes but pay any political price. i've heard a little bit object of discussion today, let me say first about the legal opinion because it illuminates the broader point i'm going to make. with all due respect, it's a worst opinion i've ever seen in almost a year. the first 18 pages of it go through olc precedent that nobody is disputing. analysis on pages 18 and 19 are entirely conclusionary. what animates this opinion, to put it very crispy, is you've been somehow the president is entitled to recess appointment. the reason the recess appointment is a gap filler, if seven is so wanted it can of rang for himself to be in constant session. the president does not have a

power or to. if congress an cummings and his colleagues, they are right to populate the executive branch with the people he finds congenial. i'm actually sympathetic to you but if a senate wish toes disapprove or not vote, the president will be very lonely. that is perhaps unfor late, but that is a reason to work with constitutions. there's a great deal at stake here. we're talking about the greatest. and it's amazing to me that people were very critical of a previous president in this area. unjustly, in my opinion. seemed to be quite silent now. thank you. >> thank you. mr. carter? >> thank you, chairman issa and ranking member cummings for unsiding before the committee today. as direct constitution, sharing block on ter rent flynn on

january 4. every administrative decision or rule or regulation imp stemented by the national weather relations board will be subject to attack. this vulnerability will attack the agency's mission. the peace and stability in labor relations and minimizing the likelihood that labor strife will negatively impact interstate commerce in the united states. as recently as january 26th, the chair an of the lrb reportedly told the associated press or the a.p., reported that the nlrb would push for new rules that give unions a boost in organizing numbers. the chairman is quoted in stating we presume the constitutionality of the president's appointments and we go forward based on that understanding. the chairman's reference on the constitutionality of this is a critical issue. as you have heard today of the appointment of the three recess members is not constitutionally

sound, the actions of the nlrb will be ultraferous. the agency will be isn't to legal challenge on that basis. this is because of a june 2010 united states supreme court opinion called new process steel versus nhlb. in new process steel, they appealed and the 7th circuit court of appeals. the primary issue resolved by the court was whether or not the nlrb could issue an administrative decision with two members resolving the case. the statue contemplates a full compliment of five board members. one of who is the chairman. section 3-b of the act permits the board to relegate its authority to a panel of three members. when the administrative decision was made in new process steel entered, two were in place, the

chairman and one member. the supreme court said in order for it to issue a viable decision, at least three individuals must compose the board itself. it is official action taken by an nlrb composed of two or fewer individuals is ultraverous and cannot be enforced. the court rendered this decision despite the fact that the two-person board resolved almost 600 cases and fully appreciating the board's argument that it had the desire to keep its doors open. the court concluded that the statute did not permit the agency to, quote, create a tale that would not only wag the dog but would continue to wag after the dog had died. the federal courts will necessarily hear the argument that the parties appearing before the nlrb were adversary treated by the wagging tail of a deceased dog. if the court's ultimately

conclude that the recess appointments of the board were accomplished unconstitutionally then the decisions and regulations issue are vulnerable under the new process precedent. if the three recess is not appointed valuable, then the decision are currently composed are actually only be an issue by two individuals, chairman pierce and member hayes. if only two persons comprise the board, their action is ultraferous. the obligations of this agency to strive to accomplish its mission should not be taken lightly. the agency is created by congress, and it does not and should not seek to enforce or advance any private rights. rather, it is a public agency that was created to, quote, protect the public welfare which is in extrick aably involved in

labor disputes. the supreme court of the united states has held that the board has a public agency acting in the public interest, not any private, person, or group, not any employee or group of employees, is chosen as the instrument to assure protection from the described unfair conduct in order to remove obstructions. the consequence of the appointments to members griffin, block, and flynn, are in every litigation resolved by the agency and with regard to every rule, regulation implemented by the agency during their tenure, anyone who desires to challenge that action may under due process steel, regardless of whether those challenges are successful or not, the agency's admission to min mids labor strife and to remove obstructions to interstate commerce will be frustrated. >> thank you. i'll recognize myself for first round of questions and follow up with mr. carter.

how did the nlrb only have two members at that time of that steel decision? >> at the time of the new process still eel decision, the senate was continuing in pro forma sessions and it was impossible to make any recess a appointments. >> to your knowledge, did the executive branch issue some sort of a statement on that challenging the senate's ability to have pro forma sessions at that time? >> i'm not aware of that, sir. >> ambassador gray, you -- you're pretty significant to today's hearings because when you had the questions before you, you reached a different conclusion. would you tell us a little bit about how you, as, i think, mr. rifken and mr. carter both did, how you could think again and agree with the decision?

is there any way you could have agreed with the decision made by counsel on behalf of the president that allowed these extraordinary events to occur, particularly as to the two or three nlrb people, two of whom had not even been given time to be considered by the senate? >> well, the trump card is held, at least in a theoretical sense, by the office of legal counsel in the department of justice and they came out with this ruling which, gosh, i don't think we would have permitted because, as i said earlier, it acknowledges a litigation risk which we would have said, no, that's not good enough. give us an answer that doesn't throw the whole thing into a cocked hat. for that reason alone i don't think i would have lavished in the issue of the form that it was issued. beyond that, look at footnote 13, very disengeneral use, in my view. it said we had never formally

taken a position that there was any limit to the time necessary to justify a recess appointment. and, you know, in the four years i was -- i was in the white house actually total of 12 years, watching and then dealing directly with appointments of this kind, never once was there any hint that the time period could be less than three days. certainly even when i was in the white house, not less than two or three weeks. it hadn't gotten down to the ten-day limit. there's plenty on the record to suggest that it is a three-day. of course we have the constitution giving the house authority to refuse a recess shorter than three days. so -- but the repeat, the litigation rests red flag in this opinion is the one that disturbs me a great deal. >> now, we earlier heard, and from personal knowledge i know that the house did not grant the senate the ability to be in recess. assuming that the house's

authority now has been waived, that we no longer have that authority, how do you square that? how does the house lose its constitutional authority to have to acquiesce to the senate going into recess and vice versa? >> that's one of the affirmatives of this opinion. it's saying that -- i know there's a difference of opinion from professioner at my alma mater, but what he -- >> you were still there you would have been updated on this constitution, perhaps? >> i would have been taught better than i was when -- no, i just don't understand, mr. chairman, how anyone can say that the president has the power to decide when you or when the senate is or is not in recess. >> and that's the question, i guess, i'll beg for all of you. the senate is not of only question here. isn't the question whether or not the house's prerogative guaranteed within the

constitution, was, in fact, preempted by a decision that the constitution was premted that the senate was not acting available. i understand if it's a question of whether the superintendent w -- whether the senate was in session or not. how do you square that we have to not allow a recess. wouldn't it be true that the house ultimately has an equal share in determining whether or not there's a recess? >> mr. chairman, you are absolutely right. some will say that the constitutional language you are talking about really des with the relationship between the two houses of two parts of article one. so you may not be in re ceacess

purposes of article one but you may be for article two. it's an indefensible position. >> and we sometimes they the senate is in recess when we send bills over there. i made it clear, we often wonder what they are doing when we send them over there and they die there. i would like to have anyone that disagrees too, is this a straight question of the constitution and whether or not the house gave its permission for a recess? >> absolutely. there's not much original founding, history, in explaining why that section was created. but clearly it was created to ensure that there's an agreed upon functioning of article one, so it's there for a reason. let me say the following, that gives you and i'm remiss for not mentioning me in my remarks. you have a independent injury

because of the president's behavior. he has effectively taken away your power to deal with your peers in the senate because it could be an important bargaining chip in the future. the problem with the president's analysis, it has no meaningful limiting principal. the president can say you are in a pro forma session today rgs i li -- today, i liked what you did, but under the next pro forma session, you did not go anything because you are not in session, you are in recess. the same can be said about any of the senate sessions. >> thank you, my time is expired. i want to make sure that others have a chance. >> thank you, mr. chairman. two quick responses. the first is to remember what it

means to say the president has independent judgment about the constitutional judgment here. his is not something that binds you but what i means to say, is he does not feel bound by what your independent judgment may be. what is occurring in the debate is sort of like two trains or ships passing in the night, essentially what the senate and perhaps the house have done, is made a decision to place form over substance and what the president has done is decided to put substance over form when it comes to making a decision in the particular circumstance. >> i thank the gentlemen for his opinion, i'm glad i have a different almamater >> on may 2nd, 2011, there was a

letter to voice their disapproval of the consumer protections bureau. there was no disapproval of the director position. rather, the gang of 44 republicans, objected to the fact that the dodd-frank act is now the law of the land. and that the consumer protection, financial protection bureau would be able to protect consumers from debt collectors and pay day less thnders once t director was installed. i want to point your attention to slide three and here is what those 44 republican senators actually stated and i quote. as president of the organized far too much power will be vested in the cfpb director without checks and balances and

accordingly we will not support the consideration of any nominee regardless of par of party affi until the director position is reformed. does it raise your concern that such a large block of senators would declare openly that they are boycotting the constitutional process even for highly qualified candidates? >> i think my reaction is basically that these senators are, of course, free to express their judgment. and the size here may be somewhat significant in that they comprise a minority in the senate but there are checks and balances across branchs as

within a branch. they have the freedom to make thoroughly judgme their judgments clear but what they suggest is that they wanted reform to law that already exists. so the president's law is not to enforce a law that has not yet been passed. it's his job to enforce what is on the books. that is partly what he is undertaking here, to do what he can to implement or make possible the fullest implementation of this agency or this bureau's function. >> now, in your written testimony about the president's recess appointment, you state and i quote, the persistent obstruction of his nominations to the cfpb force them to consider appropriate responses and all possible harms arising from his fame e failure to act

of his nominations and the ensuiensue ing arm of the american public. thomas mans of the brookings institute was quoted saying that a legitimately passed law be changed before allowing it to function with a director, a modern day form of nullication, there's nothing normal about this. do you believe that president obama acted constitutionally in making the recess appointment to the bureau? >> i do and i have stated that in the written statement and repeated it here orally today. as far as mr. mann's comment is concerned, it again, reflects the checks and balances that we have.

this is a dynamic process. what we are seeing today is checks and balances in operation. this is how it works. you can pass a law but there are various things that can be done could be subsequently if people do not agree. but the important thing is that it's done within the process. >> if the director's position had not been filled, the bureau fwh would not have been able to use its new powers to protect consumers from pay day lending and does the president have a duty to make sure that the protections enacted by congress are executed? >> obvio >> obviously, i think that is yes. this is where he could say, look

there's a lot of harm done by not getting law enacted. >> would the gentlemen like additional time to ask about the nlrb >> thank you. >> another 30 seconds. >> are you aware of any segment that a large group would say they would block any nominee unless changes were made to the agency's enabling act? >> that is a great question and i have to say i can not think of anything off the top of my head. that may not mean much. >> thank you. >> so much missed. i'm sure there's a quote somewhere on topic. with that i recognize the gentlemen from iowa. >> i want to thank the gentlemen from oklahoma for his courtesy. of professor, is there a