military. i want to hedge myself, diplomatic positions or supreme court. i do not think there's a minimum or right that the president has to say that there's any, there's going to be a recess any time i say there is, so i can over ride the process. that is not what the constitution means. i think there's another point to be made here, not to belabor it, but the cfpb and nlrb are creatures of congress, they are your creatures and not of the president. if you don't to staff them, i don't think that you have to staff them. in addition to them being creations of you, so-called independent agencies. i have problems with the idea. they are your agencies, not only

did you create them, you have the upper hand in controlling them. if you do not want to staff them, you don't have to staff them or fund them. >> brings me to my next point, staffing, we are business people, i was a dentist before i was a politician. so, a business, when we go through a staffing process, particularly when we have a new rule, we have to flush it out, when it right or wrong and especially when it's pushed through, i was not part of the 111th congress, i see problems with both sets of appointments, isn't it getting it right the most important? >> i think that is rightment mr. i think that getting it right is important and i also think that, my mother always said two wrongs don't make a right.

>> well said, who has inflicted more harm to the constitution, constitution aa constitutionalists or the c constitution. >> who is the constitutionalists >> we see it as challenged, i do not see the average person making these claims a violation of the constitution, but i do see attorneys with constitutional background who do make those. >> well, this is another hearing. certainly, there are many that think that academia was the wonderful source of theories. >> and the president was what? >> he was not an academic. this gets translated through law clerks that are put in the field to work for judges and influence

judges. but the public is not guilty to this and part of the over the last election is a lot of people in the public saying, wait a second, there's something out of kilt kilter here and something has gotten out of hand, that i think is a valid point to raise, and it not the fault of the average voter in america. >> to me, if i'm the average guy on main street and we are playing basketball, this is a blatantly flagrant foul, you vary time-out and take a penalty and are excused from the process. that is how bad this is. may i indulge another question? >> if the gentlemen will be allowed an additional 30 seconds. >> in regards to the nlrb, prior to this, most of the processes in which they were going to go

through were noncontroversial and now, when we have had these appointments, how do you think they are going to respond? are they going to stay to the n noncontroversial aspects, or will they go into the realm of the controversy? >> let's try to deal with this imperically, the last two members left of the national labor's board, they came on to the deal where by they agreed to not decide any controversial cases. those cases that would normally require at least three majority votes to overturn prior board precedent and they did so in a collegial fashion. regardless of party of. it's possible for members of the nlrb bipartisanly to proceed.

yard to the current board as it's put together, what they will do is what they will do. based on the january 26th report from the associated press quoting chairman pierce, it's obvious they are contemplating attacking the docket of adm administrative reports to the board. >> thank you. >> you had a short statement to make? >> i very much appreciate that, very kind of you. just a few quick points i would like to try to make in part in response to what has been said. i hope that we do not lose sight of the fact that i think an

important premise here is that everyone is acting in good faith. i carry that same presumption with regard to senator lee, and all the senators and the president. that is my operating presumpt n presumption, the second is to remember, and clarify in the record, that recess appointments are peri perfectly are okay to be held, and have been upheld repeatedly over time. and lastly, i want to point out, that in a lot of situations we have been thinking of circumstances that are not those that the president made these appointments. if we focus to specific situations that he made then, these pro porm a sessiforma ses

acting on constitutional grounds. if we change the facts, may need to change the path. but in this case, he is on credible ground. >> i might mention, in the case of nlrb to be functioning he only had to do one recess appointment. we go to mr. davis, in gentlemen from illinois. >> thank you mr. chairman, and i want to thank the witnesses for their patience. we keep hearing how there's going to be a cloud, and i'm quoting, a cloud over what ever decisions the nlrb or cfpb may make, all the same things will be true according to some people when rules are put forth. we heard that these appointees, their official acts will be void as a matter of law, because again, they did not have the authority to act.

professor gerhardt, yhave opine that the president's actions are sound and the appointments are not unprecedented or wreckless and will withstand legal scrutiny, is that correct? >> that is correct, sir. >> so then is it fair to say that in your opinion, these appointees do have authority to act because the appointments were lawful? >> that would be the case i would make, yes. >> so, if the appointments were lawful, can't we dismiss all this hyped talk about these nominations creating a cloud over these agencies' decisions? >> well, there, sir, i might have to slightly disagree with you, here is where being a law professor is a bit of a confo d confounding thing, i believe in

dialog and give and take and it is part of our robust system. >> i agree with that, but aren't all agency decisions a judicial decision whether or not an appointment -- >> you are saying is it possible for anything to be challenged in court? the answer yes, but it does not mean that it will be struck down. >> in fact, will you agree that judicial review of some kind for most regulations is almost certain to follow? >> yes, sir, it reminds me of a scene in shakespeare where one character says i can summon great monsters from the deep but the other says, will they come. so you can sue but that does not mean it will bring it down. >> two rules to reform election

rules and require the posting of worker's rights are being challenged by the chamber of commerce and other business groups right now. so i think it's a false premise to say that recess appointments are going to create litigation when the litigation is likely to take place in any event whether these are recessed appointees or any other kind of appointees, individuals still have the option to ask for judicial review. >> yes, sir, i think that it's quite likely this is an era of litigation and litigation is politics by another means. >> i yield back. >> the gentlemen yields back and we go back to cleveland ohio, a

d -- mr. kucinich. >> i keep hearing criticism of the president not giving enough time before making the appointment, isn't it true that president bush made two recess appointments to the board, mr. cowin and bartlett without ever nominating them to the senate at all, is that true? >> i'm not sure congressman kucinich or not. >> let me assert for the record that it is true and that mr. pinkus -- >> if i may just say. >> i have to move on, you did not give me the answer. mr. pinkus, we have a slide to put up there, somebody? hello? thank you very much. that slide shows president bush's recess appointments, he

made a eight recess appointments to the nlrb during his presidency. now, did the chamber of commerce object to mr. bush's recess appointments? that you know of? >> i don't know congressman but none were made in the circumstances here. >> okay, so you don't know. the nlrb ensures protection of workers non, and union alike. now slide six, it shows the nlrb protects the right to form or join a union, the right to bargain for wages and benefits and the right to good working conditions and the right to take action with coworkers to improve working conditions. now, mr. pinkus, you are hear

representing the chamber of commerce correct? and chamber represents business interests, correct? >> yes. >> and on behalf of those interests it usually does not lobby for greater restrictions on companies, right? >> i do not represent the chamber in connection with labor issues. >> but you represent the company management of some of the most powerful companies in the country, right? >> i don't with respect to to any labor law issues. >> what about with respect to corporate policy? >> i have clients that are individuals. i have clients that are companies. >> hasn't the chamber filed a lawsuit against the nlrb for its rule requiring employers to post a notice explaining employ's rights to unionize, are you familiar with that? >> i know that the chamber has

challenged an nlrb rule, i'm not representing that issue. >> the chair will stipulate that there's an open case disputinin that. >> i appreciate that, chair could answer the question mr. pinkus couldn't. hasn't the chamber filed a lawsuit against the nlrb for its rule -- to unnecessary litigati litigation plague the wokkers to form a union? >> i know there's a lawsuit. >> a board that cannot enforce worker's rights is somewhat ideal, isn't it? >> i don't think that a board, that a government agency that can't act is ideal, but on the other hand, our constitutional system as senate lee stated that there will be collisions that

have to get worked out. i think everyone would agree it was not ideal when the government shut down but it got worked out. >> got worked out about but what has not been work eed out here the chamber's resistance to the nlrb and frankly i'm concerned that the opposition of the recess appointments is opposition to the nlrb, i thank the witnesses for their participation and i thank the chair for being here. >> these appointments were made during agreed upon recess events? >> yes. >> so it allowed for recess appointments by design. >> there's nothing illegal by an

appointment during recess except when there's no recess. >> nobody here today, for the whole several hours of course first or second panel, objected to the power of a recess appointment, is that correct. there's no dispute that the president has a constitutional obligation to keep the government running during resources and that is where there was a recess authority appointment given. i think you have been balanced in giving your opinion even though you disagree with some of the other panelists. you said something earlier that i focused on a bit. since the -- isn't there -- inct

there -- isn't there risk that the bureau would have laws similar to the new steel that might have to be invalidated? isn't that a risk, not just a risk of litigation but a risk that their actions could leave them not valid in what they do between now and whenever the supreme court finally acts? >> i appreciate the question, mr. chairman, i do not think that the memorand mentioned tha there's risk tells us about the merits of the case. >> and mr. davis when he originally posed that, i don't think he knows the outcome. it could go up and they would say hey, they were in recess, there's no risk to these appointments, there could be risk to the ldecember 23rd. let's say the court says they

are not in recess on the 23rd and they were in recess on the 24th for purposes, then nothing happens, all we have had is a lot of litigation for a period of time. what if it doesn't happen, this committee came together to ask all of you and our first witness about what if, and i'll start with mr. carter and sort of go from right to left this time. what if in fact we find that these appointments, one or more of them would be considered to be inappropriate and we assume it's all of them or none of them. what is the risk to the actions of the nlrb and these individuals, three individuals, both parties and obviously the lesser actions specifically of the new director? >> are mr. chairman, there are, that's the greatest danger here, it is volume of risk. the volume of risk is expansive,

unlike the situation that congressman davis was describing, which is, well, every bit of litigation is subject to appeal, right? i mean, so what is the difference? what we are talking about here is an agency that is acting independent with the nlrb, it's not one or two of the cases that may be brought to appeal by one of the litigants, it's every case that they decide, it's every regulation that they implement, it every official action that they take, and that effects real people with real rights that could be hurt. two examples, a situation where an employer is told by the nlrb this coming year that they have to legally relocate work from one manufacturing plant -- >> you mean maybe to south carolina. >> let say south carolina, sir. >> wait a second, that one got sort of dropped once the union got what they wanted. go ahead and continue. >> let's said west virginia, my home state where we really need

jobs. and the national labor relation plant there. employ employer, everything you have put into the reinvest of that plant. you don't have use of that plant, we're transferring that work back. >> but couldn't the people of west virginia assume that the president was inappropriate in the recessed decision and just decided to ignore it? couldn't they just ignore what they have done since what the mtd committee said? i mean i know they're not expleasant se explicitly named, the right to life, liberty and the pursuit of happiness. >> anything this committee can

do to make sure the sen citizenry is -- but it's not just companies with risk, it's not just employed -- >> i wasn't thinking of those companies ignoring it. >> mr. chairman, consider the last one, and i won't trouble you anymore but consider this hypothetical. what if i am part of a shop and my employer is abusing me anding those who i work with and i want to form a union and i have a right to form a union. so i file a peat with the national labor relation es board and they come in and hold an election and that union begins to -- nen a federal court says it's unconstitutional. they can't certify you, i dessertify that election result.

do you think they'll put a pig in the lineup? i think in my state they would. what happens to commerce, what happens when that strike starts and what happens that to employer and what happens to products. real rights, real ramifications, real dangerous, what these recess appointments have done to our labor relations in this country. >> mr. chairman, two points for you briefly, first of all, with respect to professor gearhart, all be it in a mild language the possibility of -- and second to pick up on an excellent point, is a fundamental difference, aside from a specific foot

print. between challenging a different decision and challenging the legitimacy of a whole subset of an agency. i think it's not only constructive, but frankly does not aspire to where some of the americans are assessing our given agency or two agencies have been acting constitutionally for a couple of years is a very bad thing in terms of maintaining the confidence of the people in the government, quite aside from all the costs of businesses and commerce involved. >> mr. gearhart, in the narrow question that if this is ruled that these are not, would you like to speak to the consequences? >> assuming that that were to occur, there are a couple of things, i mean the one is, i think you still may have a muteness problem, that is to say, so much has already transpired to what extent can

any of that be undone by any court. and the second thing i would add to all that is to reiterate -- >> they did unring the bell, didn't they? >> a small injustice, they can unring, but thousands of them, you think the court worldn't do it. wouldn't that fly in the face of miranda? they unrung a lot of bells with miranda, didn't they? >> in a way, we can't have our cake and eat it too here. is the court, the supreme court specifically which we expect this will get to them, aren't they bound not to gain competitive harm as they were to wave the constitutional election? did they have the ability to -- dread scott could have been kept around for a long time and there was a lot of harm to reversing

it, wasn't there? >> the reversal of course occurred after a constitutional amendment after a blood write civil war. >> so your assumption would be that you know, probably, that's one of those examples where the court would just say well, we're unringing the bell, but we're granting no relief to the injured? >> i'm saying i think that's just one of the problems here. >> mr. pinkas. i think you will concur. >> let me start with what the courts will do, i think it's quite clear that as long as the issue is preserved in the individuals, the thousands of individuals who have been harmed, they're going to get relief. in u.s. steel, i think there were 500 opinions that were overturned. >> this is a classic chamber question of the chamber

essentially has to find a way to form a class to make sure that everybody is on board otherwise their failure to object could lead to the decision? >> i think there's a theoretical risk of that, but i think this issue has gotten so much attention that i don't there's any company that will be -- not going to know to have a paragraph in its complaint saying by the way the two members were appointed by the constitution. i think it would probably be close to -- >> three members. >> three members, yes. so i think there will be relief and i think that's what makes the position very different from mr. davis's. the government wins almost all of those cases and they're all of course case specific. what we're talking about here are thousands, maybe, certainly hundreds of government decisions that will all be set aside at once. and that will be a big waste.

especially when what i said in my testimony are some of them who are going to preserve -- who will now go free or have to go back to square one, there's a lot of ti lots of time. >> the cost may not be right up your ali, but you want to take a little whack at it. >> i did put it in my prepared system. which also deals with due process, which is where they didn't have a quorum, not to throw a monkey wrench into this, but there were questions at the fcc, it's also our view that the commission's inability to exercise certain powers because of the method by which its members have been selected should not affect the validity of the commission's administrative actions to this

date. to buckley bolero, that looks like it may cast some doubt on and politicibili applicability of those. >> this is something you all may weigh in on. historically, the court has held very little -- they have respected directions in the congress when it came in the form of a law. they have not ordinarily given standing and senator lee said that in his testimony in a q & a. in the case in which the house of representatives has not granted the senate the right to adjourn, does in your opinion, the house of representatives have a separate action, separate from law, but as a body of government, constitutionally

specifically given a right/obligation, do you believe that we have potentially standing? >> i'll just say first, i'm skeptical, but i don't think it matters, there's going to be a challenge, there's going to be a ripe case that we'll follow and what you say will be taken very, very seriously. >> i think we do have a standing to vindicate a financial authority. and as much as i respect my former boss and mr. gray, i think that it is essential for you to look at the powers issues of 200-plus years, the analysis, the behavior of each branch at each particular point is given tremendous weight. it is your controversial interest to -- regulatory