acquired because these recess appointment will be valid only through the end of the year, and if the court acts after that it sort of water under the bridge in a sense the other option would include as you suggested options that might involve defunding these off as if certainly indicates of the nlrb, we have to remember that the president can't find anything on his own. he has to rely on congress. congress has the power of the purse to house of representatives -- house of representatives holds the power of the purse that is an option that problems arise out of the fact cfpb is embodied in the federal reserve bank and one to look at a change in the law in the fact that we have given this office to that entity and we have given funding responsibility to an entity that is not within our funding control. these are the primary leverage we use. in addition to all those i think it's important that we make sure that this is considered in the

political discussion in the upcoming elections both presidential and congressional. because we in america have to entrust that those we elect to office, particularly the chief executive officer position, will respect the limitations on the power. ours is not a government of one. and for this president to pretend otherwise is an insult to the constitution and it's an insult to the american people. would the gentleman yield? >> yes, sir. >> by the president during the appointment on january 4, not january 3, isn't it true that these individuals will enjoy a two-year term, not a one year term? >> that is not my understanding. the recess appointments clause in article ii, section two provides that recess appointees will remain in power and to the end that session of the congress. so it's interesting, we started, we held our first session of the second session of the 112th

congress on january the third, one day before the president made these recess appointments. so it's my understanding that they will continue in office, assuming they're not invalidate in some other way, through the end of the session, which will last through the end of this year. we will start a new congress january next year. >> i see my time has expired. i thank the gentleman for giving me what was left. we now recognize the ranking member of the full committee, succumbing, for five minutes. >> i'm sorry, you did. we now recognize the gentleman from massachusetts, mr. lynch, for five minutes. >> thank you, mr. chairman. senator, i just want to say how pleased i didn't you can before the committee. i appreciate your words and your cooperation, your assistance with this matter. i do have to acknowledge though you're not under oath so this is really just a chance. it's one i am enjoying, but we do have another panel of witnesses i would like to get used with all due respect i would give back the balance of what i thank the the chair.

>> that was quick. >> i can take an oath if you want me to by the way. >> you took an oath already. we think that's more than sufficient for ourselves and for the other body. we now go to -- in a second to make sure i don't leave anyone. we now go to the gentleman from north carolina, mr. mchenry, for five minutes. >> i thank the chairman. senator lee, thank you for being here. thank you for the work you're doing. the heavy lifting you're doing in your first term in the united states sent up with that i liked you the bounds of my time to the gentleman from south carolina. >> i knew you would get lucky for me fellow carolinian. >> congressman, he has always shown graciousness towards me and i appreciate he is yielding. thank you for that. senator, how were you possibly

to have vetted nlrb appointees when the names were submitted to the senate? >> thank you for raising that. with regard to two of the appointees to the nlrb, their names were submitted just right before the christmas holidays, and just days before impact, and as a result they had not gone to the committee process. they hadn't been vetted by any committee. we hadn't had any time to set any committee hearing. and so that in and of itself ought to attention to the legitimacy of the procedures, the legitimacy of the constitutional analysis that led to these unconstitutional recess appointments. it really is a stretch to say the least, to say that any of these are legitimate recess appointees. and particularly so with regard

to those. this underscores the point this was not justified, cannot be justified by the fact that inevitably in any senate confirmation proceeding, for any nominee there may be some delays.pened under every administration in every congress in every senate that i'm aware fact that that happened doesn't mean that the constitution, that the present can just ignore the constitution. that especially so where they were given to us just days earlier and we didn't even have time to that them. pic so you get the names of on december the 15th, and what, two and half weeks later he makes a recess appointment and says that the sin is not doing its job? >> that's correct. >> and with respect to the republican appointee to the nlrb, could senator reid have said that for a vote? i'm not totally with how the senate works, by that name of an

innocent for some time. it strikes me that if senator reid were concerned about whether or not it was important to nlrb he could've said that, and he did not say that. it as the majority of you does in fact enjoyed -- -- yet he did not. that opens up another issue which is at any given time we can even do these sorts of things through a pro forma session. we have on occasion a prude people by unanimous consent in a pro forma session. and that has been done in the past, could have been done at the time but the fact that it didn't occur hardly means that we were not available to act on these. >> as i shared with you before, congressman, he was so gracious give me some exit time, my real concern is whatever we decide this analysis is is going to be equally applicable whether we like the president is or we wish we had another one. so it just strikes me that we have created something of a

ratchet, because once you define it, it is very hard to expand but once you limit it. and it now seems to me, the rule is where going to give you two and half weeks to that our nominees and if you don't, then you're not doing your job. and if you're out for three days, that's a recess. and if we like the laws you pass, like the payroll tax extension, then you're not in recess but if we don't like what you have done you are in recess, which the political gimmickry -- the constitution really should be viewed from political games. so can you speak to how you were in recess but yet you also pass this payroll tax extension, upon which the republic hung in the balance, if you listen to the rhetoric. how could you pass that gets to be in recent? >> well, of course we couldn't. we had to be able to act and we

did, in fact, act. and we acted on december 23, 2011, to pass that into law. the president demanded congress act. the president sensibly praised the congress for moving into action quickly. he signed that legislation into law probably. he recognize the legitimacy of congress' action that within the fact they were conducted at least o on on the senate side ia pro forma session on december 23, not withstand the fact that previously we had anticipated that there might not be any formal business conducted. there was. and that indicates the fact that we were in fact open for business as we were required to be under the constitution, not have a reserve the consent of the house of represents to adjourn for a period of more than three days. this emphasizes my broader point, which is that my concern is neither republican nor democratic. it is neither liberal nor conservative. this is politically active medical. this issue is simply an american one. one rooted in the rule of law and u.s. constitutions which we've all taken an oath.

it is that we can't as an institution, as a country, afford to allow one person to exercise power that does not properly belong to him. that the people have not properly given him. and that is what happened here. so i will be just as hard on any republican president who dares tries this nonsense, because i am on this president. >> thank you cindy. >> i thank the gentleman. we now recognize the distinguished lady from the district of columbia, for five minutes. ..

thank you, mr. chairman. and thank you senator for being here. a portion of a conflict my time back to the good chairman, mr. issa. i may be senator. senator, i did want to follow-up on a couple questions. you mentioned earlier teddy roosevelt's famous appointment. but those are specifically when the congress like gavel to gavel. in other words during the anticipated history chances -- and commented the public have that option in this case or could he have had that option to do it on january. because it was unfair in fact a moment between sessions?

>> well, i don't regard doing it then an opportunity for him to issue an actual recess appointment. they should point out that that hypothetical task at a different set of facts that deals with what you might call them intersession recess appointment. >> is not one in which the court spoke? >> well, that is one in which a court has spoken. i believe you might be referring to the 11th circuit decision in that regard. >> that would be one in which the president would know the likely outcome at least historically, right click >> perhaps in circumstances as they otherwise would support the solution that we were in recess for the purpose of the cause. that would be called them intersession appointment and this wasn't intersession. the night the president clearly waited until january 4th. it didn't comment.

the opinion was the canaanite january or. with allison for thought at the school, maybe mouses unkind, but with forethought and planning, he planned to do it after january. from all indications. i strongly suspect this is not arbitrary decision on the part of the president. is a careful person who is familiar with the constitution and minds that this was deliberate. >> d.c. suspicion that the constitution hit the opposite opinion when he was in the senate that he now has this president. >> i think he got it right the first time and should have stuck with his first instinct is >> presidents often say they chronos has been perhaps he simply grows out of the office of the summit and respect for that body. which is quite frankly my personal opinion that it's a lack of respect for the body he once belonged to. i may go through the points because of a house member, not having heard the senate they let me come over once in a while to

bother you all, but that's about it. you have interesting roles that are bigger than ours. first of all, motion to adjourn is still a high standard or a low standard immediately taken. so i motion to adjourn is always in order and could in fact at any time any member could move to richer even during a pro forma session unless there was a specific exemption agreed to, right? >> that's correct. so any member of the democratic party, not just senator reid could have moved to adjourn in order to create a legitimate recess, correct it >> that's correct. that doesn't count for the need to adjourn for more than three days, the separating the question now, yes. >> of course senator reid could have put no one in the chair in the third day, is not correct? no power could have forced him to be in the chair.

>> are not similar at any court or precedent that would have led to the court injunction telling senator reid he had do that. >> so every single member of the majority in the senate, including senator reid, had the ability to create a different set of circumstances and did not. >> yes. additionally, anything past was passed by unanimous consent. >> correct. so the fact is september 25th outcome any member any member of the senate could have common taken that down. it was an affirmative decision that that agreement was going to happen. it wasn't like the you see was a surprising people just are. >> any of us could have object to. >> you are different in the senate than the house. i know that because i work the senate and. as i understand, everyone of these you see and unless it is responsible to a senate committee there speaks to the

senator makes a commitment for some reason on behalf of the senator. he seized on it. >> you have the process uphold if you will. everything starts with a hold of many with the same. >> so with these -- if there'd been an actual request a vote during the pro forma session, request for you see, that would have, could each of these appointees could have come up as a request for you see and a member would've tried show up physically and object to that appointment and senator reid held no such boat. >> interjection could have been made. that's correct. >> the senator would've had to be there. >> that's probably a discussion for a different day. an objection could have made for a hold could've been a post on unanimous consent request without actual physical presence. but the objection would likely have triggered requirement for physical presidents.

>> my bro time has expired. what that, we go to the gentleman from virginia. and before we go to mr. connolly, i ask unanimous consent -- i apologize. the democratic objections to recess appointments, which is a five-page document be placed in the record, including the junior 242120 from the gentleman from virginia, mr. connolly. the gentleman is recognized for five minutes. >> i think the chair. in the cherries right and introducing into the record. my long-standing view that recess appointments and presidents of both parties have long been a use. i don't believe the constitution vision recess appointments being routine things were designed for a time when congress is not in session for a long stretches of

the calendar. but that requires bipartisan co-op ration. it has nothing to do at this president per se. it is a long-standing institutional and constitutional issue. i would hope to find some common ground. and so i actually find myself writing a recess appointment. having said that, i listen respectfully to your point of view and i respect you. i hope you listen to mine. i believe that a statement by 44 republican senators come united states senate announcing that they are going to try to import the implementation of the duty passed along by the constitution envisions how the law gets passed. it never envision you got a second extra constitution site of the apple ii toward its implementation when you didn't have the votes to see it. i believe that frankly doubt that are precipitated issue and you got what she deserved an

cytosol about frankly for those of us who have as a chairman just indicated in introducing into the record that recess appointments as a separate issue. and so, i guess with all due respect, can you do this a review because i think it is an extraordinary thing, a priority to announce the matter what, no matter virtues of the point means, no matter facts we have to respect that a lot was duly passed and sent to the president of the united states is the constitution calls for, we in advance or announcing they're going to oppose all appointments to prevent the implementation of that provision of the law and i just think that's wrong. when users scare squared. any vindicated manager constituents are nonplussed about this act. i would host of nonplussed that the constitutional decision by you and so many of your colleagues to sort it to the

implemented love. that's my opinion and i yield back. >> with the gentleman also want to ask about the nlrb? teacher questions on the nlrb appointment? >> i don't have any question, mr. chairman. i would say the same applies to that as well. >> jetta manual back. we now go to the gentleman from michigan. >> thank you, mr. chairman. i want to think what my favorite senators for being here. i'm going to yield my time to mr. pinto. >> i think the senator for being here this morning. two points for the record. i think he is here first because he asked to speak on the subject under. we want to hear what he has to say. secondly he's got a rather unique perspective of these issues with this background having opportunities with the circuit court as well as the supreme court has manders pending. i think your comments -- for your comments.

i want to be clear. i will support what the president did. i looked at this issue. i spent quite a bit of time and i think this president in this circumstance overstep his authority. my understanding and please correct me if i'm wrong is that the senate and only the senate, not the president of the united states that has the capability to determine when the senate is in recess or disaster understanding click >> that's my understanding based on the history of the constitutional and on custom and practice as it's evolved over the last two centuries. we are expressly given the power to determine the rules for a procedure in internal governance and we do that. >> so the president is relying on making its recess appointment on the office of legal counsel's justification nmm of the issue

in their memo essentially said that the oc effect resource the president to unilaterally determine if and when the senate is in recess for purposes of exercising his recess appointment power. so my read is that the president is looking at his legal counsel's opinion that says he can decide when the senate is in recess. however, there's clear precedents in the states that only the senate has that authority. so that is problem number one with this process. the other two points i'd like to make is that back in 1993 during the clinton administration, department of justice filed a legal brief in federal court for the district of columbia, car good enough to recess lasted for three days, a president could not make an appointment for the three days at the third point i make is in the role of 2010,

then solicitor general elena kagan acknowledged before the night is a supreme court that quote the senate may act to foreclose the president's recess appointment power by declining to recess for more than two or three days at a time over like that. presidents have not in recent decades made recess appointments during intercession recesses lasting eras in three days. so there is most recent opinions and presidents that by those who would likely support the philosophies of this president would college with this president is doing is wrong and to speak to the gentleman from virginia mentioned is that this should be about appropriate powers of the executive branch. it should not be about republican or democrat philosophies. it should be about the country and what is good for the country.

i believe that all of us in the legislative body as well as executives need to adhere to the precedents and the laws and rules with top bush. without doing that, these bodies cannot game greater credibility with the country and i would submit to make sense for the president of the united states to acknowledge in the circus and that he should resolve it to reinstate the states in the process we have. >> if i can respond to that. to very much, congressman. i share your concerns and i for you the office of legal counsel's 23 page single spaced memorandum. it is well written. it is well researched in the sense that it points out the precedents, but reaches the wrong conclusion and at the conclusion that it's at odds with the very present to which you prefer an illogical provision through which you

prefer. if i respond to my bike also to respond to congressman connolly's point because they think they lead to the same conclusion here. i understand and i share the frustration that so many americans have expressed over the fact there are delays at times. sometimes long delays, sometimes delays that don't get resolved until after the congresses over the president is no longer in power. that is frustrating to those whose names are annoying to be confirmed. as frustrating as this is, constitutional government is by its very nature frustrating. it was designed to be frustrated in be frustrated in the sensor was designed to make sure that it wasn't though efficient that we just passed was really quickly. efficiency doesn't always lead to liberty and frequently leads to exactly the opposite position. so the fact this process is frustrating, the fact that the delay has sometimes been abused

even though it the prerogative of the senate to do that does not and cannot ever justify circumventing the constitution and just saying this is really necessary. this is really important. i'm therefore going to do this. at every turn we try that in the country, it has amended while and i'm determined not to allow that to happen here. i'm not about to stand idly by as this president gets established, knowing full well that occurred in unless we do something about it, it will be abused in the future. not by democratic presidents, but by republican presidents. >> i think the senator for your comment. the >> i thank the gentleman. mr. welch from vermont. >> i just have a short statement. you know, i find this extremely discouraging. mr. gensler's rate if you want us to abide by the rules to make

a passionate statement, but you know, this institution from congress and the house and senate is seen rightly by americans is totally dysfunctional and where in the process of proving a point. there is a fundamental difference between deliberation and distract the delay. that's my view and it's the american people's view. the rule is we work on the house, those are designed by senators and house members. they don't get elevated to the level of constitutional rights. they are rules that often times they're the interest of the majority party in both bodies. the problem we are having here is democrats can't work with republicans and either body. the senate i believe is seen as having a series of procedures that have one purpose and that is to delay and not get to an

answer to move forward on business that america needs to be done. it is an astonishing spec to call what we're doing in this congress and refusing to do the people's business. we haven't passed a budget and i don't point the blame that one party or the other. this is dictation just isn't working and it is had a history of the passwords enabled to make decisions. so when we have what sounds to me like a very academic discussion can i put myself in the feet of vacant district of mine who is wondering what is that we are talking about, we have not passed a budget. that is disgraceful. two years ago when the democrats in the majority that the finger of responsibility pointed by my colleagues at our failure to do it, now republicans haven't been able at least in the house, not in the senate, haven't been able to pass the budget.

select the end of the day, your legal argument. but it is not going to move this country forward whether you are right or president obama is right. so i just think we've got to move past these procedural maneuvers we create to allow us to conserve our well and make decisions in an up or down vote, allow there to be clarity for the american people were each of us stands. if they don't like about we make, they've got the opportunity to send somebody else you could do it. so thank you for being here, but i don't think were getting anywhere. >> if i could respond to that. your concerns are very legitimate and i share. many of them. let me reemphasize that delays built into the system. part of the delay is constitutional. part is based on the rules of each body in the roles of each

body are constitutionally the prerogative of each body. the president when he gave his state of the union address last week in her chamber here told us what he would like is to see our rules sheet which had a policy change in the senate that will lead to an up or down vote for each nominee within a finite period of time. that of course is ultimately a decision for the senate to make. i think that is where the debate and discussion of this ought to be. in other words, the frustration that he has the members of this body as are the american people in general have ought be directed towards this discussion about whether or in what way the senate ip changing the rules of this procedure not say were frustrated with those rules. we are frustrated with the ways a manifest them selves and delay and we therefore want the president to ignore the constitution. the final conclusion doesn't -- isn't the natural logical