depending on which party is in power? >> i think the answer would be no. >> and one of the good things about the law is hopefully it provides order and predictablity for those. what is the new definition of recess for future republican presidents? >> i think it's the same. keep in mind the president is acting against a backdrop, where we have more than just an opinion about recess, there's the 1905 report from the senate judiciary committee which says the president may treat as a recess a period of time where the senate is unable to act or receive on -- >> let's analyze that for a moment. the two names were given on december the 15th and they were recess appointmented on january the fourth. do you think that now two and a half weeks is enough time to demand that the senate act on

something? >> that is not my judgment call to be made? >> if you think that a president were to conclude that two and a half weeks was enough time for the senate to act to something, that would withstand constitutional scrutiny? >> yes, i think the answer will be yes, because i think this falls in the discretion of the president. >> so two and a half weeks, what about a length of time in terms of recess, because ten days according to you is too long. three days, can the recess be less than three days? >> i think as a practical matter the answer will be yes, because that is what the president is using here? >> can it be less than one day? >> may turn out to be yes. the fact that something might be constitution aal doesn't mean y have to do it. he may conclude as a practical

matter that he does have an opportunity to make a recess appointment -- >> i'm trying to get a sense of, if our country were to be fortunate enough to have a president langford from oklahoma doct -- >> that would be good fortune. >> if a president was taking a lunch break, is that sufficient time for the president to use his recess appointment power? >> i think he can make a judgment, perhaps most people would make a judgment, that these breaks that you described are not recesses for fairly obvious reasons. >> i'm talking about the law. >> and i think it raises a -- >> that gets to my next point. how can the payroll tax cut be effective if they were on recess? >> i think the answer to that is by the time when the president makes this judgment he obviously

has concluded that the senate is not in a position to be able to act on the nominations and he thinks that -- >> how can they act on nominations which were not given to them in a timely fashion. they got them on december the15 and they did not have the proper paperwork. >> it says the president can fill up all vacancies >> do you think the founders had a two hour recess in mind when they drafted that clause? >> i don't know what they had in mind -- >> but you are a constitutional law expert, what do you think? >> i do not think they had a fixed period in time. >> do you think they thought two hours? >> i don't think that they thought at that level of detail. to the extent they addressed itt

we are talking about here is a circumstance in which the president like most presidents, approaches this issue in a very practical way, balancing the considerations. >> speaking of the president's practicallity he referred to having the apc-- damaged and credibility questioned. >> i'm not sure i understand the context of the statement, so, i do not know that i could tell you what he was thinking or why he said that. but i think that, what happens of course is the constitution in politics converge all the time and in a circumstance like this, where the president makes a judgment, it's not just going to have constitutional ramifications, it will have political ramifications. >> you keep using the word judgment but i'm getting to what

the law says. i'm not as interested in what someone's judgment is as the law is going forward. for the next president, is there any time limit associated with recess? >> i think the answer would be probably yes. because i think you have to put all this into context. >> it's less than three days though. >> i don't know if it less than three days or not, but i do think it's a matter of context. it's a matter of what are the practicalities at the moment the president is making the judgment. keep in mind, the president is making the determination not just based on the text and making a determination, i think, based on the law, the law he has to enforce and the text that i think that gives him this authority, and the recognition that if he doesn't act then in a sense the problem is the senate might be able to literally take away his power.

>> i'm out of time, if i could have 15 seconds to ask my final question and i promise it my final question. >> asking consent? you are given 15 seconds. >> you mentioned judgment, are you moved at all by the fact that senate is controlled by the same part as controls the white house. and that the republican appointee was never given a hearing, because some of us would be suspicious of colusion. that you do not schedule it and you wait until a nap takes place and then you make an the polit concern. what i focus on is the constitutional law. so the parties involved are not

part of of my calculation. >> thank you, sir. >> we recognize ms. norton for five minutes. >> thank you. i'm not going to give you any law school hypotheticals or worse case examples even though i regard any prior profession, my real profession as a law in the university of law center, i still go to teach once a week, i look first to the written legal advice the president received from the office of legal council. i look there because the office of legal council is considered, i think by most of us to be the least political office in the justice department because the job of that office is to keep the president from getting in trouble. and if someone would put up some words that i asked this staff to

get for me from his analysis. allowing the senate to prevent the president from exercising his authority under the recess appointments clause, by holding pro forma sessions would be inconsistent with both the purpose of the clause and the historical practical in analogous situations. this opinion appears to raise serious separation of powers questions. let me ask you since, it's constantly looking to the framers, whether you think the framers intended congress to overturn a law by refusing to confirm an appointee, to run an agency, do you think the framers had that as a possibility in

minds? >> let me say at the outset, of course, the statement here is a reiteration of what i've been saying and i think the olc memo, with all due respect, is a perfectly good example of what the kind of work one gets from olc, which is not just nonpartisan, they try to look at all the sides and come out with judgment. in terms of your question, i think the framers sort of told us what they think about this circumstance. when they set is up the constitution. laws are made a certain way in compliance with article i that is how laws are made, but there may be other factors that come along the way, funding and other things that are made through other laws. but in terms of nullifing a law, one chamber does not have the ability to do that. the laws are made through presentment clauses. >> i was intrigued, there for i

like to see what the other side says, so i wanted to see what a former office of legal council had said under a comparable circumstance. now, this president is known for his patience and unflapability, some would say criticized for his patience. particularly with this congress. here let's take the office of the consumer bureau. the response to one of the most important responses to the most critical crisis of our lifetime, victimized millions americans. this agency has not been functioning because there was

nobody to lead it. it's one thing to be patience and it's another to be a whimp and let your duty to attend to the laws vanish in the face of a congress which simply refuses to do what has largely been done in the past. looking to prior legal council, the staff found me two former assistant attorney generals, john pelward and the former deputy general subscribe to this statement. the senate cannot constitutionally stop the president's recess appointment power through pro forma sessions. the president should consider calling the senates' bluff by exercising his recess appointment power to challenge the use of pro forma sessions.

this president appointed, did not in fact move forward with one appointee that the senate disagreed with. all right, he says to the senate, here is another one i have for you and the senate says all right, you have come up with someone fully appointed and tell you what, we disagree with the underlying law that this appointee is to administer. it does seem to me that the negotiation of calling the senate's bluff comes into play at some point, and i would like to know your view of that. >> well -- >> if the president had simply allowed this to go on indefinitely, instead of finally calling the question, take it to court, do what you want to, but i'm calling the bluff now after almost four years in which this, this particular bureau has not

been able to function. >> if the president -- >> would the gentle lady yield for just a second? >> did you mean to say four years on this the agency? >> almost. >> when it was -- >> dodd-frank was a year ago. >> i stand corrected on the time, my point remains. >> the gentle lady will have an additional 30 seconds. >> i think the gentlemen for putting into the record the correct number of years s years whatever it is and i'm sure it's the case. the point i made by introducing this is that the president's patience had been exhausted and that even members of a prior administration who had held this very office said at some point somebody has to quote call the senate's bluff, i think that is what was done here and i ask for your response with respect to that or should he just have it go on for another two or four

years however long it might have taken. >> i do that opinion reflects the fact that the basis for the president's actions are not uniquely partisan. there's a sort of wider more sod i -- more solid ground in which he is operating. i think the president faces a situation where he knew if he did not act, there would be these harms that would continue to occur. that the consumer financial protection bureau would be left unable to perform some of the most important functions and that would leave, in his judgment, the american people harmed. that is the harm he is looking at there. clearly in his judgment, he did not think there was as much harm by acting, he felt he would be producing good. not an unreasonable stance to take, standing pat would have allowed harms to build up over time and the law to go

unenforced. >> i hank tthank the gentlemen. i yield time -- >> i just want to make the point that one thing i have seen a pattern of today is that every question seems to be about the consumer financial protection bureau and none about people's applications that arrived in the senate after they were sworn in. >> thank you, and that is where i want to land. it's interesting to me that could be permitted or and the statement from the bush in the administration that considered this, the bush administration did not take that advice. they took the advice of others over the top of that and said this is not legally appropriate, this is done for politically swift to make him look tough. he is in an election year and

look tough like i'm going to force these things down their throat and look manly. it opens up all this action and all the actions of the nrb will suddenly go to court so he can politically look better in a campaign year, but this will drag out all of these cases for years now in litigation, it's frustrating to me. that we have to sit and discuss, what are the issues of litigation when this was a settled issue two years ago. the new process steel, as i go through the arguments that i pulled up, he looks directly at chief justice roberts doing oral arguments at the supreme court and discussing the empty positions. ask a question, and the recess point power doesn't work why? and he responds, this is the obama administration deputy

general, the recess appointment power can work in a recess. i think the office has opined that the recess has to be longer than three days. this seems fairly clear that it's not about with recess appointments and whether the president has the power to do recess appointments. this is not a recess, this is a constitutional issue. this is an issue of can the executive branch define for the senate when they are in recess or not. is this a power of a monarch to reach in and say you are in the way and i'm going to declare you in recess and put in who we want. and to drop the names in at the 15th of december and say it's been long enough two weeks later, i'm going to go ahead and put them in place seems object absurd on its face.

while we can discuss the dynamics of the politics of it, the biggest reality is the nlrb case. if the president has a power to ignore the advice and consent of the senate and in one day drop a name in and before hearings are scheduled over some weekend in the future or has been opined already over a lunch break can declare i'm not in the communication with the senate, do it in january, and ignore the advice for two years and fill all empty positions why can't a future president? some january over a weekend fill every single court, all of them and say this is my recess responsibility, the precedent has been set over here, that was ignored by the senate, the courts have upheld it, what would slow down a future president from doing that, anyone is welcome to answer that. let me take different opinions here. go ahead. >> nothing would prevent this

from happening, in fact, i mentioned that it would fundamentally recast notbalance. it would allow the president to be put in place. you have an executive branch that are there for the limited term and do the president's bidding and feel unaccountable. >> so advice and consent is gone? >> yes. the approach is aside from the fact that it's not bound in a text, it has no limiting principal. and the notion, i mean, i hate to engage in hypothetice t hypon is there's an emergency and i

want to pass a law. the house passes bills all the time that keeps people from misrepresenting funds. the president can say, i don't care, i'm going use the money. >> with that we recognize the gentlemen from massachusetts. >> thank you mr. chairman. and thank all of you, i think we have gone over the constitutional aspects of that. i want to take a different look at it and ambassador, gray, you obviously have looked at this from both sides, given you're president bush's recess appointment and your white house council appointment. back in march of 2005, there was an article in the hotline that recorded a statement from you, i believe the use of the rule to

block nominations conflicts with the constitutions advice and consent clause. do you remember making that statement? >> yes, sir, i do. >> how do you feel about that today? do you agree with it or have you changed your mind? >> the statement was made in the on text of judicial appointments. never been a filibuster of educational appointments, so i think that now. -- it's a different issue, it's also a different issue whether or not closer should be used, it's a totally different issue whether a president can declare a recess wherever he feels like it under whatever criteria he wants to use. it's important to say, i don't think that the recess appointment power is a response to rejection. i take the point that of course,

the nlrb people have not filled out the form. but cordray was rejected. and it does not say that it's appropriate to deal with the filibuster issue. i don't think that the word filibuster appears anywhere. so the recess is not a antedote to appointment. the agency can do a whole number of things but certain things it cannot do until directed or confirmed by the senate. so then there was the idea that it may be rejected and that was understood. i have given you too long an answer -- >> we are here to get your information. take your time. >> the filibuster issue is very

distincti d d distinct >> you made a statement at the beginning of your remarks that the chamber of commerce supports consumer protection, is that correct? >> yes. so, it's fair to say that you also made comments about certaintity that the business community appreciates certainty in the laws as they are on the books. >> yes. >> when you look at the statute, and you look at statements like those made by 44 republican senators who wrote to the president vowing that they would block any nominee, regales regaf affiliati affiliation, you see the statement and the law has not been passed and it's not satisfied because there's been no appointment and 44 members come out and say, we are never going to act to that, you'll be with that uncertainty for a long

time, how does that impact your thoughts about the desire for the chamber to have consumer protection and desire for certainty? >> i guess, two questions, first of all on consumer protection, as i said in my testimony, there's a lot that the bureau can do under the treasury secretary's authority. there are many rule making responsibilities that congress laid out in dodd-frank and there are many other rule makings that the bureau could under -- >> well just not to be rude, let me stop you on that point, what it will not be able to do however, unless somebody is appointmented is curb unfair practices and will not be able to reign in predtory pay day loans and will not be able to safeguard against abuse of debt collection or monitor private student lenders and other financial institutions just to

name a few. -- >> and you respond? >> of course, you consider those not important or not relevant? >> no, they may well be important but the ftc does have the power right now to act against unfair and deceptive practices and announced this week, a large action on consumer debt collection and has been doing it right along and devoted substantial resources. so there's a bigger argument good whether or not, where the gap was that the bureau was designed to fill. much of the argument in the run-up to dodd-frank was that we were very troubled that the bank regulatory agencies do not focus on consumer protection with respect to the entities they regulate which were banks and we need to transfer that power to a new regulator that will focus on that regulation. that is the power that the cfpb had prior to january fourth and was exercising.

as the legislation moved through congress, other, it expanded to focus on other entities, some that are regulated at the state level and others at the ftc, they had very broad power, all theties that you listed are regulated by the f tc and the states. so the question is, i think there's a question both about the gap and whether there's one, and we would suggest that there isn't and that really question here doesn't create uncertainty and a huge amount of uncertainty will be created by the overlap by the state ags and the ftc and the cfpb, all of whom regulate the entities and all of whom regulate in different ways. >> you do not think that the

statement from the 44 members was not going to say how they were going to move forward? >> it is, that part will not take effect until there's the same check for the bureau that exists for the other divisions. >> so chamber is okay, with when it's going to beism indicate . >> the question is can we get -- >> you need someone appointed but you a someone not being appointed so you are okay with that type of uncert n uncertain uncertainty. >> what we are okay with is that the part of the statute that was of effective and was being administers was being described. was being flushed out. the idea that parts of the suit

that would not come into effect until a director was poiappoint until a director office flushed out makes sense because the problem now is that the business community has been placed in a difficult situation where a lot of enforcement actions and regulations will be issued that legitimate businesses will feel they have to conform with and that may turn out to be unvalid and they will spend money to go back, it turns out that everythi everything that happened may be overturned by the courts. >> or it may not. >> you know, ambassador gray, i would like to give you a quick moment to respond. in regards to the constitutionality, the ends are okay with the process?

>> well, i don't know how long i have. no. i will stick with what i've said and what senator lee said, if the president can, can just say, well, i we'll think that the senate really is lolly gagging around and it ought to be in session lunch, but they are not. the chamber is empty. they rejected my nominee and not by filibuster but by a 20 vote margin and i don't like that and therefore i see a recess opportunity here and i'll name this person to this agency anyway. now, that is not the way the constitution is supposed to work. there's to right to make and get nominees confirmed who, i think, may