our constitution and our judicial process have served in the congress. so although senator lee is a freshman, he is certainly not new to the questions the senate faces and our country faces here today. and with that, senator, i understand that you're both testifying and willing to take questions; is that correct? >> yes, sir. >> yes, sir. estimate as is customary for everyone except for members of congress, you will not be sworn in that you are a number of our body. with that, the gentleman is recognized. >> thank you, mr. sherman. and ranking member for the invitation to come here and to address you and the other members of the committee. it's an honor to be with you here today. i'm here to defend the constitutional prerogative of converse. and i want to be clear from the outset but whatever political concerns i might have with of these nominations, my overriding dominating concerns here is not

partisan. rather it is institutional and a constitutional concern that i am here to explain and the answer any questions that you might have regarding those concerns. president obama's january 4th, 2012 appointments are unconstitutional because they did not comply with the requirements for appointments set forth in the constitution to be a those requirements i might add are important because as the founding fathers the five discussed in that fateful convention in the summer of 1787 in philadelphia the founding fathers were unwilling to grant this power on an unrestrained basis to an executive as they offered that there wouldn't be wise to, quote, grant power to any single person as the people would think we are planning to much towards malarkey, end of quote. these appointments were unconstitutional because they need to receive the advice of

the senate, nor were they made during the senate recess. the kind of recess cognizable under the calls. they are different than the previous recess appointments made by any president from any political party in the nation's country. no president has ever unilaterally appointed an executive officer during a recess of less than three days. neither to my knowledge has a president of either party ever asserted the power to determine for himself when the senate is or is not in session for purposes of the recess appointment clause. in making these appointments, president obama has not to my knowledge asserted that his january 4th, 2012 appointment can be justified based on the adjournment that occurred between january 3rd, 2012, and january 6, 2012, and this is for good reason to read surely any such assertion of the recess appointment power would be unconstitutional.

the department of justice has repeatedly and over the course of many decades upon that adjournment of significant length particularly in the three days or less that is any adjournment that is of insignificant length because it is of three days or less doesn't constitute a recess for purposes relevant to the recess appointments clause and in the context of the constitution the framers did not consider the adjournment like this. to be constitutionally significant it's also a significant here that article 1 section 5 provided that neither house during the session of congress shall without the consent of the other adjourn for more than three days. so, if an intersession adjournment of less than three days were to be considered constitutionally sufficient for the president of the will to exercise the recess appointment power is not clear what if anything would prevent the president from bypassing the

constitution's advice and consent requirement and appointing the nominees during even the weekend adjournment, which routinely involved the periods of 72 hours or even more in which the senate may not be actually in the process of holding the committee hearings and so forth. instead assuming they are constitutional president will rely on the memorandum of the opinion produced by the office of legal counsel in the department of justice also known as the olc. this is the president may unilaterally conclude that the senate's brief performance session such as those held on gentry third, 2012, and continue every tuesday and every friday until generate 23rd, 2012 somehow do not constitute sessions of the senate for purposes relative to the calls. this assertion is deeply flawed because under the procedures established by the constitution, it is for the senate and it's not for the president to decide

when the senate is in session. indeed, the constitution expressed the great power to determine the rules of its own proceedings. to assert the president had an unconstrained right to determine for himself when the session is or is not in session and to appoint nominees unilaterally at any time if he feels the senate is not responsive or as responsive as you would like to be even in the senate is meeting is to trample upon the constitution's separation of powers and the system of checks and balances that animated the adoption of the advice and consent requirement. i look forward to answering your questions, and as i answer those questions i will continue to emphasize again and again that ours is not a government of one. these are rights upon which the president has trampled. this is power that he has taken that doesn't belong to him. it belongs to the american people. and under our constitutional system, that power is to be exercised by the representatives in the senate, and not by the

president alone. there are people were about my state and across america who feel powerless and that is why i have made the comment that i have that this is the action we need to object too strenuously. i olc the gentleman to really did not limit you to five minutes but i appreciate your accuracy. i will now recognize myself for a first round of questions. >> we will call the professional courtesy. i always appreciate when people look at themselves to five minutes as well. >> being a house member i've noticed that when house members could to the senate, there is forgetfulness that we somehow say. senator, the cfpb pass under dodd-frank isn't unique or fairly unique that it receives funding without appropriation from congress? >> gutzman understanding this because the position is embedded in the federal reserve, because the federal reserve bank is not in a sense in the literal sense

and the traditional sense the government agency but rather a private for-profit corporation, it's not an entity that congress controls in the sense of controlling its strengths and so that is a significant concern that many -- >> so you had no other way to ask for reform, consideration or anything else other than this confirmation? it was an unusual situation in which one of the ordinary powers of the house and the senate is to not funding something that a previous congress has chosen to do it in the case of the cfpb that is in the case; is that correct? >> in that case it enjoys the degree of insulation from the normal controls on any government, and the degree of insulation historically has been reserved. >> good word. one of the points i've been given and i ask unanimous consent devotee placed in the record is on their website to

note that 97% of president obama's nominations in 2011 were confirmed by your body to be discussed roughly your understanding? >> the fact is you are practically a rubber stamp to the president wants. some of us try not to see ourselves that we but we have been very cooperative in confirming the president's nominee, despite the fact i harbored a significant policy, a theological and political differences with the president's nominees on the continued to vote for them and most of them have been confirmed many of them with my vote. >> so you have exercised the advice and consent in the affirmative 97% of the time. let me go to another portion because you are both personally and as a family historically better informed than we are. hasn't the senate exercised this refusal in the past, even at times to the supreme court? and hasn't yet been the view

that if the senate decided not to have a supreme court all they would have to do is wait for them to die of? that ultimately it is within the power over a period of time for the senate to choose not to fill the vacancy? that that is within its historical power and the have asserted in the past? >> to the supreme court certainly is on a different plan for other governor officials. the supreme court unlike many other officials on like the people who serve in a the nlrb or the cfpb or elsewhere are not people whose positions are specifically created under and identified in the constitution. so that's different. but the overarching question that you are asking is whether or not the senate in its advice and consent function is required to give its consent to in fact approved. so that is the senate prerogative. ..

>> a lower ability to have a presence around the world, isn't that true? >> that argument has been made, and i suspect there is some truth to it. >> they certainly envision the constitution. they're not just some adaptation of the last, the administration's last congress. so isn't it true that it has been the practice of the senate under senator reid, sometimes simply to say that nominee is dead on arrival and go find someone else and not call for a vote?

>> yes. >> isn't it true that often nominees are pre-vetted before they're put up so as not to embarrass them and, in fact, there's a whole discussion, because they so want to not have that controversy? >> that is also correct. well-known fact this occurs, and with good reason. >> good reason. so i guess, a couple last questions. motion to adjourn in the senate, i'm different body here, but it's in order here at any time. was there a motion to adjourn by the democrats issued? did they try to adjourn? >> my understanding is we would not attend because consistent with article one, section five of the constitution we were required to obtain the consent of the house of representatives house of representatives to adjourn, it before a for any period of time longer than 72 hours. given that we didn't receive such consent, the senate was unable to adjourn for any part of time longer than 72 hours and so we continued holding pro forma session basically every 72

hours throughout that period it. >> let's talk about pro forma session. last question very quickly. every third day, who got in the chair over at the senate? was it a republican? >> normally a democrat is my understanding. >> normally are always? >> always. >> senator reid had to put a democrat in the chair to holy pro forma session every third day, and he did so? >> correct. >> thank you. i yield back and recognize the ranking member for five minutes and 49 seconds. >> thank you very much, mr. chairman. i want to thank you for bringing these concerns before us. as you can tell from my opening statement i'm concerned that a large number of senators tried to block a candidate who is extremely qualified for post because they disagree with the law, the law, congress passed creating a consumer bureau. on december 7, 2011, the office issued a press release that

stated, and i quote, my decision to oppose his confirmation by the senate has nothing to do with qualifications. i feel it is my duty to oppose this confirmation as part of my opposition to the creation of a cfpb itself. my question is, the senator's role is to give advice and consent. senators, just to be clear, you don't have any problem with mr. corker, did you? >> i don't have any personal problem with them. i'm sure he's a wonderful human being. >> you probably think he is qualified for the job? >> i feel that he possesses professional qualifications which might well serve him well in the right of government positions. >> let me put up slide five up on the board. do you see -- gordon grigg was the white house counsel to president bush will be

testifying on the next panel of this hearing. and his view is that you actually would be an unconstitutional act for senator. let me read to you what he said. and i quote but i believe use of senate cloture rule to permanently block nominations conflicts with the constitution's advice and consent clause. so, senator lee, is your message to mr. gray that it doesn't, he doesn't know the law? >> i certainly would never set. i have enormous respect for mr. gray. i can certainly from but i also consider him something of a role model, as a constitutional scholar come and i admire his work. i'm not sure of the totality of the circumstances in which he made a comment but let me say this, my belief is that because congress is a legislative body consisting of elected officials, and those elected officials are retired in increments, especially in the senate where we have elections every two

years, you have a set of laws that one body has to deal with in many instances you have members of a new congress that didn't vote for a previous law. it's not at all uncommon to have a log is created, that creates a government office in one session of congress that his subsequent congress refuses to fund. or refuses to fund part of its actions. that happens from time to time. now, you might have a senate that decides not to confirm somebody to a particular position. perhaps because of the qualifications of the individual or perhaps they have concerns about the office or the power that that officer might wield. and i believe that it's not improper for congress to raise those concerns, raise substantive concerns about the office itself when going through the nominations process. it is at the end of the existence prerogative to confirm or nothing from and there's nothing in the text, the

original understanding or the history of the constitution that suggests that the senate's prerogative to provide advice and consent to presidential nominations be the consent in fact has to be granted. >> in other words, if they so disagrees with the law, then it's your opinion that they are within their rights under the constitution to basically say i'm not going to vote to confirm a nominee, is that right? >> right. >> the underpinning law speed yes, and precisely the same respect him and for precisely the same reason that a senator or a congressman for that matter my reviews to vote to fund a particular office that was created under a previous law adopted by previous congress. that is not only not improper but that is part of what it means to live in a constitutional republic in which laws are made and government programs are funded, only by

regulate the elected officials who stand for reelection and the use -- lose election after a while. >> in addition of february 2, 20 -- 2005, one to collect me the following statement on the floor regarding the gonzales nomination. and he said, when someone is qualified, unless there is some highly disqualifying factor, we should proceed to the present request for his nomination to confirm the individual. what's your opinion on that, what he said? >> well again, i make it a point not to speak for my college. i don't know the totality of circumstances in which my friend, senator kyl, made that statement. but i will say first of all that any senator may decide to grant or withhold his or her vote to confirm or not to confirm anyone for any reason, just as he or she is free to vote or not vote for any particular budget or

appropriations or anything else. seikaly and perhaps more importantly, the fact that there is delay, the fact that there has been delayed in confirmations in every cent with every presidential administration, republican or democratic, going back decades in fact going back throughout the entire history of our republic does not and cannot ever excuse the president of the united states income his nose at the u.s. constitution. that is what's happened here. that's what we're talking about today. >> so, senators started blocking all the president's nominees because they disagree with the laws congress passes we would essentially have a form of notification that could shut down the government and the clue is not what the framers intended? >> i'm not sure that i can agree with that statement. every congress has the power to shut down the government should he choose. subject of course to what the electorate wants. if they congress chose to shut down the government, my guess is that would be extraordinary on piper, especially if it extended

for the duration of more than just a few days. yeah, congress has the power to do all sorts of things, and the fact that the senate could exercise that advice and consent power irresponsibly doesn't justify the president in circumventing those very same constitutional restrictions. >> thank you, mr. chairman. >> i think you. and if i could make a clarification for the record, ambassador gray was in the first bush administration. use of president bush but i want to make sure everyone knew he was not the immediate past and with that we recognize the distinguished german from south carolina. >> thank you, mr. chairman. senator lee, welcome. thank you for them with us today. who was outstanding to challenge the? >> if you talk about article iii standing for purposes of determining whether a case is just in a federal court, the most likely type of party that

could establish standing would be at a party agreed by a decision care and the force of law, i.e. the national labor relations board or the consumer financial protection bureau. one such an order has been issued if you have an aggrieved party, someone could in theory take that case to federal court and say i have an injury in fact, traceable to the conduct of the cfr pb, and the kind of injury who could fairly be regrettable in court. >> united states senators have standing to challenge the recess appointments? >> there may be some disagreement on this of the authorities that i've consulted, including those based on the supreme court decision, seems to suggest that u.s. senators are likely not have standing to bring the case in the own capacity but they certainly could in all of its participate in it there is often a stare

decisis, particularly when people like the decision, initially. they don't tend to talk about presidents stare decisis when they don't. my concern is whatever the analysis we have of the recess appointment clause should be the same irrespective of who the are in. can you talk about the historical treatment of what a recess men and, and what a better rule is going forward because it strikes me that if the person in the chair were taking a nap under the president's analysis, he could make a recess appointment. or if you all were out to lunch for a couple of hours, what's the different between three hours in three days? was distor, and what's a good will going forward, irrespective of who the president is? >> that's a great question, and i, i want to emphasize the

concern embedded in your question here, that the answer canceled it be that the president may decide on its own accord when the senate is in recess. if he regards to send as doing insignificant work, for instance. if he decides that whoever is sitting on the office is just going to sleep with their likely not to do any work, that's dangers. that's creates a slippery slope in which he can decide to recess appointed overnight or over the weekend or something like that and certainly can't be the case. to answer your broader question, the president has been established in recent decades a basically over the course of the last century. before the think was a little more informal, but we have had substantial president of law over the last century. we have in the early 1900s a series of recess appointed by president theodore roosevelt, 167 recess appointments made in the seconds between the end of one congress and the beginning of the next congress, just in

between capital basically. the senate judiciary committee convened a panel, conducted a formal investigation to determine what the rule out to be, and our custom and practice as it has evolved over the ending century has been based on part of their analysis. here's one of their conclusion, and i quote from the 1905 report of the framers of constitution were provided it is a real danger to the public interest and not just an imaginary one. they had a mighty good time in which it would be harmful if in office were not filled, not a constructive in deferred or into degree says as opposed to an actual one. so in other words, that are saying you can't use an overly technical set of logic in order to reach the conclusion that you've got a recess. that conclusion was followed up by an attorney general's advisory opinion by an attorney general authority which was

issued in 1921. and among other things in that report, he explained that regardless of exactly where you draw the line, he said under no set of reasonable circumstances can you infer that a recess and an adjournment lasting less than three days could be deemed a recess for purposes of a recess appointment clause. he went on to say it's probably too short even if you take up the '70s or to 10 days. and ever since then our analysis has been informed by those positions, that if nothing else we look back to those two clauses we talked about earlier, article one, section five and article ii section two. article ii section two says the president has the power during a recent. article one, section five says in order to adjourn for more than 72 hours since this didn't have to get permission of the house. so that has evolved as a sort of safe harbor. if we don't have permission from the house or for that reason we don't it, then we're not in

recess because we are having taken in every 72 hours. the fact we might not pass laws doesn't mean we can't. we get passive a significant law on december 23 and 1 of the pro forma sessions. just days before the recess appointment for me. so it is wrong to suggest as the president's of legal counsel has suggested in advising them that the pro forma sessions are meaningless for constitutional purposes here. >> mr. chairman, i have additional questions but i'm out of time, so perhaps one of my colleagues will take mercy on me later on. >> one can always hope. with that we recognize the former chairman of the full committee, mr. towns, for five minutes. >> thank you very much, mr. chairman. and if you like to yield to the gentleman at south carolina, he is available. >> i don't think i will do that, but let me just say i really appreciate the senator coming over to share with us, but mr. chairman, i yield back the balance of my time because i

really want to get to the witnesses and i really do, and i'm eager to get to the witnesses, and help my colleagues are, too. i yield back. >> i thank the gentleman for yield back. we now go to the gentleman from texas, the star fair and old, for five minutes. >> thank you, mr. chairman. thank you, senator, for being here. while i was home over the christmas holiday and enduring this timeframe, and after the president made these of plymouth, i got a great deal of e-mails from my constituents asking how could you let this happen, and how do you fix this, what do you do. there was a real frustration but i think the american people can't on a commonsense basis that we were not in recess when we're meeting pro forma every day days, when we passed very significant legislation, the

form of the payroll tax holiday that the president himself was calling for us to pass during these pro forma sessions. so my question to you is, i'm not going to get into the nitty-gritty of whether we were in recess. i think the american people, anybody with a lick of common sense gets that we were not in recess. but where do you go from here? what are our options in keeping with these people who are taking taxpayer money, making critical decisions affecting this country, and bypass the advice and consent of the senate as i think is required by the constitution? i mean, what are some of our options here? what do we do? it's clear courts don't like to get involved in these separation of power issue. you answered questions about stating. i mean, where do we go from here? do we define the position? that will never get past unless

we can bury it in some other bill. we can't impeach him, i don't think because they haven't committed any crimes. do we amend the constitution to make this problem not happen again? where do we go from your? >> first of all thank you for sharing that set of remarks about what your from your constituent. very much consistent with what i've heard from my constituents in my state which is that people are getting frustrated. they are getting a sense of powerlessness. they are feeling the sense that power that belongs properly to them, they reckon people, has been exercised. it's been taken by someone to whom it does not belong. the president has taken power that belongs to people and it authorized -- so something does need to be done and that's why i have drawn the attention to in recent days that i have. that's what i said that for my part in my role as a senator, although i have cooperate, and happily with his present an indivisible and a lot of people with whom i have significant

political and philosophical disagreements, i recognize he is the president. he did, in fact, win an election. elections have consequences, and i've confirmed most of those people who have come before me. but for me personally that changes now. my response to that, my duty to the constitution based on the oath i took just over a year ago when i took office, i think requires me to stand up for these constitutional prerogatives and to show the president that unless or until he receives these unconstitutional appointments and allows them to be considered under regular order in the senate, he's not going to get the same degree of cooperation his head. by the responses might include an action in the courts notwithstanding the doubts surround with the senators, senders can and i anticipate many will participate in judicial action that will be brought by other parties within. i think there is some possibly the courts could have but one of the problems is the courts act relatively slowl