frustrated. we have to have a discussion about the rules themselves and not simply capitulate and say let's give out a president can violate the constitution if you want. >> the gentleman yields back. >> thank you, mr. chairman. i would say while i don't disagree with the gentleman relative to its focus on the legislative side on action and moving the country forward, relative to policy, it also is equally important that we reburied that we are following their own rules. we teach our families, our children the rules are important. i get to go home on weekends to see night third-grade daughter's basketball games and there are bullets and it's a very important lesson for each of our children to abide by them. and if we simply can't do it for

what is an incredibly important body for the congress and the president, then what kind of message is that running for the nation? i certainly appreciate my colleagues position relative to the legislative requirements for both bodies and i would agree and urge both parties to work together on the appropriation bills. by the way remind the senators that we did house passed a budget last year and we will pass another one this year and would love to have the senate respond. i would like to yield the remainder of my time back to the chair. >> they certainly appreciate my colleagues yielding. what is interesting as my colleague on the other side of the aisle said your legal argument to be ready. so it is an interesting of debate. you know, what the constitution constitution -- let me ask you a

couple basic questions. how many republicans are there currently in the united states senate? >> 47. >> is 47 vendors a majority of the body? >> no. >> interesting. after the 2008 election i know you want a senator, but worth their 60 democrats in the united states senate? >> yes. >> if you 60th in a senators together, do they even have to speak to the other 40 senators in the elevator? >> not much. >> lushes understand historically. he had a supermajority after the 2008 election. he was able to pass this debellis through the house and through the senate and didn't get a single vote the republicans in the united states house. it became law. this president has had a majority in the united states senate for four years. he has had a majority -- a

supermajority in the united states house. let me restate that. it's 59 states after the 2008 election. so this idea he complained about the congress inaction is pretty absurd. so let me go to the cfpb. now, the president's lawyers said that there is a great risk, a litigation rest that anything the cfpb delta be challenged based on the constitutionality of this appointment. anything the national labor relations as could be challenged legally based on the unprecedented action. you know, looking at the litigation risk in the amount of uncertainty that cruise for small businesses and the impact it has on the economy, that is sort of the net impact of this debate we are having.

i know you're a constitutional scholar, but i also may represent the folks in utah who are concerned about jobs. this does have an impact on the american people in a real way. it is not some academic debate. but you reference the fact the senate defense session every three days in your pro forma session. why is the house doesn't agree to adjourn, why does the senate meets every three days? where does that come from? >> article i section five provides that we may not adjourn without the consent of the other body for a period of time longer than three days because the house of representatives didn't grant permission to adjourn for a period longer than three days we had to continue to meet every three days. >> okay, when does the state that too, this action by the senate and practical impact? >> the last roll call vote on

the floor of the senate prior to the christmas holidays was taken on december 17 as i recall. >> and so for the next almost month is pro forma session as was the house. >> said talk about this litigation risk. the amount of uncertainty these actions will create in our economy. >> well, at a time when unemployment is at around 9% and at a time when one of the things that is chilling our economy and chilling creation for the job system certainty and at a time when americans and american businesses face regulatory compliance cost at an astounding rate of about $1.75 trillion a year, almost equal to a good tax burden of the american people, the one thing that we don't need is more uncertainty and a

regulatory structure. the fact that we may -- american businesses may be subject to an order issued by the nlrb and anytime that may or may not be valid, that could be suspect in terms of their validity and therefore subject to litigation, litigation that would be cost you would want the uncertainty associated with owners, but would become absolutely necessary because in many instances it may be make or break moment for the company. >> this is exactly the kind of thing that would make her almost dismal unemployment program substantially worse here this has real implications. this is not hypothetical interest. not an abstract problem. this affects real americans who are struggling to get by, struggling to find form programs. >> this compounds the program. thank you similarly for your testimony.

just america's dumbest member of the house, you know, we always have we chafe at the actions of the senator and inactions of the senate, but that is not a new thing, it's as old as the republic itself. the senate is designed to be inefficient and by gosh, it lives up to that expect tatian. and so with that, i recognize mr. clegg from missouri for five minutes. >> thank you, mr. chairman. i really have no questions for the senator. thank you for coming today. but let me say that i do have an observation about the process and recess appointments. let me say thank god for recess appointments. that we are able to appoint richard cordray as the cfpb.

and that's necessary, we are a country of law and think about the function of the cfpb is to protect american consumers and to have to succumb to the will of the minority of senators who don't want to see the law implemented, the american people know what you're doing and pretty much, this president had pulled the wool off of which are trying to do. we know you're trying to thwart any achievement by this achievement for political purposes. and so, let me again restate, and god for recess appointments. and also for the nlrb said they can be up and running and

functioning as a full body to protect the workers in this country. so mr. chairman, i have no questions and i yield back the balance of my time and it does not require a response. >> mr. chairman, effective response. >> it doesn't require a response, mr. chairman. >> i certainly appreciate. >> thank you, mr. chairman. i appreciate the chance that we have lost any to point out that from time to time, congress will pass a lot and then not find the office in charge of enforcing the law. it happens with some regularity. this happened when republican congresses have enacted when not in subsequent democratic congresses have refused to fund it. the fact that the allies created are not funded with a subject of full appropriations by a subsequent congress always. it is part of the democratic

institution. to give you an example, in your home state of missouri congressman clay, it is urban legend at least that it was once legal to shoot a woman in missouri. i don't know whether that was in fact a statute. it might reflect the extermination order by wilbur fox indicated no more birds. i am grateful that wasn't funded, that was then executed. this is a very different kind of love and not one. the fact something is put into a one-day doesn't paternally automatically, inextricably populate bodies to fund activities occurring pursuant to a very loud. and that is exactly what it means to be in a constitutional republic. we elect those people to pass laws to make decisions about how government is to be funded. >> my college wishes to respond.

i certainly appreciate and i would say to my colleague, if the chair may say, i would enjoy reciting your quote today when we have a republican president. and perhaps that will happen. who knows, but i certainly appreciate my colleagues indulges there. but that, mr. langford is recognized for five minutes. >> thank you, mr. chairman. at senator, thank you for being here. i can understand how the present is frustrated with the senate. ensure you have even more frustration with the senate than we did even on the house if that's possible. >> it is. every thousand days of waiting on the budget come out of the senate, where a frustrated with the senate and trying to figure out what will happen. the question resolves on to the end justify the means though. can we say cfpb is going to do a good thing so i know it's not appropriately and constitutionally vehicle, we'll get something good at the incipient to justify the means.

can we do that in a constitutional republic? >> that we can't. the constitution is all about the means. that's the whole reason for having a constitution. it determines the means by which we act. no one can justify a willful disregard for restrictions of the constitution. the not who gets to define what a recess is the richer minutes? does the executive branch defined for the legislative branch with an adjournment and what is the recess or does the legislative branch to find that centeredness as well as a recess? >> the senate gets to decide when it's in recess. >> said the president can step in the day now to clear your recess? that's correct. he doesn't clear part of the government as much as he might wish, which is probably every president may wish to be true. >> so when senator harry reid kept the senate improves on the action to prevent the bush administration from appointing people in a recess appointment

and the bush administration acknowledged that by not appointing people, saying the senate has defined they are not in recess if they're not in recess. when the said rations that i don't accept the senate definition a recess, we are going to redefine recess, what precedent does that set? >> is that the new president, when they fear could easily turn into a one-way ratchet. in which subsequent presidents of both political parties will be unwilling to retreat from the new high water mark that bush's presidential prerogatives. >> that concerns me as well. the president has said they have communication from the senate and such a recess. at the senate didn't to me in sending messages, did any bills passed at the 17th of december in the 22nd of january? any communication between the senate and president? >> s. a significant piece of legislation passed, one that was urged to pass that out with the payroll tax holiday expansion.

>> writes from the present statement that there's no communication happening is not accurate. there was an indication happening. it allows for communication. it allowed for business that this is not for business purposes obviously the payroll tax extension did pass and it seemed that business to me. >> that assertion is either factually accurate or correct as a matter of constitutional law. >> to the senate have hearing for nlrb come all three them click >> note did not. after two there is no time or they could even possibly communitarian. >> not only was there not even a release of the names, not even the possibility of a hearing. vegetate it's a recess appointment, this was interesting under vice attempt earlier. you have enacted on them, this is a matter of while you're at it time, i'm going to just put two people in office for the next years. >> that's correct. i have a letter from contractors are they to enter into the record. let me read what statement here. not only from the association of builders and useful this radical

nlrb antiworker can't antibusiness section further damage prospects of investment job growth, but questions about the analyst rb is the authority on site ambiguity at a time when we need it the least. they stressed him its consent disputed into the record. >> that objection. >> has serious issues which i hear from you as well because of the precedent they set, it sets a precedent that a precedent at some feature they can reach into the senate and a time when they are in recess and when they are not in who we can appoint and we cannot and extend in a jittery time. to get two years. with this precedent, as it stands i now see anything in the way from sun's future memorial day weekend. the president saying he's not communicating over this long weekend. i'm going to build a record across the country in the for the next two years and you can't

stop me. you see anything that would stop this? >> logically a very short half indeed from the loc memorandum, justifying her these recess appointments in the kind of recess appointments to describe according over weekend. enough of that ideal back. >> one quick question. mr., service be rated in terms of disapproval. who would have or could have, not the 44 for 47, who can't have in fact hold hearings, particularly the ellerbee, who schedules those? >> the committee. >> the committee is held by? >> democrats. >> did they schedule a hearing on appointing his? >> at least now but there's back to the two nominated on december december 15. >> and who could have scheduled the vote on the first one? >> democrats in the senate. >> it wasn't the 40 for the stock that.

>> gentleness time is expired. i yield myself five minutes for the first question. senator lee, i appreciate you being here with us and your leadership on this issue. my colleague from oklahoma concluded with the main focus of my questioning and that's a precedent here is pretty dramatic if we do not undo what has occurred. it is my understanding the department of justice memorandum that in us and said the president has a unilateral authority or ability to decide when you are the senator is unprecedented in this sense. if that's your understanding as well? >> yes, i work for precedent precedent anywhere and i had in the memorandum or any other serious unawareness identifying any other presidential recess appointment occurring under this set of circumstances.

the mac in your testimony you emphasize this isn't about partisan politics. this is about the institution, senate and probably most importantly, checks and balance is found wisely, included in the constitution and protect the the american people from the nasa tyrannical rule. and that that under these dead here because today obviously the partisan nature of washington in the media's focus on that kid may be shipped the focus here from truly about the constitution being upheld. if we are not diligent in ensuring in this case the constitution, we set a precedent as the gentleman from oklahoma said kawai just in this instance did they pay you adjourn to adjourn on a thursday was the plan of coming back monday in the president, whoever that office in the features they hate america session and i cannot point to the number i choose. that would eliminate checks and

balances and advice and consent. >> that's exactly right and that's what the founding fathers had in mind when they considered and decided against giving the president unilateral authority to appoint nominees without senate confirmation because the people will think we have a thinking too much towards monarchy. we were getting away from a system of anarchy and great britain. we didn't want one here and this is why we did this. you're actually right in suggesting this is a slippery slope and in the future regardless whether it's republican or democrat in office, this could become a problem that could lead to the rendering and nobody of the senate's confirmation prerogative. >> i certainly respect my colleague statements about his opinion that the sentence politically motivated minority members, republican members in blocking even if that was the

case, although the fact that there's not even a hearing, met to nominees, that even if it was a case, that would be prerogative of a senator and ultimately, the public would decide whether that's a responsible approach or not. but it's still the constitutional right and prerogative of the senator to block a nominee for whatever reason they choose and ultimately voters will decide whether they're responsible in the conduct engaged. but it's not the president's prerogative to say i'm going to use that authority and unilaterally to what i believe, what i wanted to. so i can want to thank you for his leadership on the issue in your constitutional expertise that is so important to this debate and the focus of this is not a bipartisan problem. it's about constitution being a palette and not allowing it to maddock waffled precedent to

that could have a lasting indication for the checks and balances of our governing process in american america. but that ideal to mr. ahlberg for the purpose of the question. >> thank you, mr. chairman. and thank you, senator lee. we appreciate you being outspoken on constitutional issues seven portends. with noel intent toward you in your service because i sized that i appreciate your dvd. but it has been said much by those of us and members of the people how frustrated we are but the do-nothing senate. a literal do-nothing senate. a thousand seven days without passing the budget, without dealing with for the 30 those we have sent for jobs purposes than listening to some of the cynical pandering to some of my colleagues on the other side of the house but we are not doing

anything with jobs. it is frustrating. when i go back to me districting hear frustration of many people who are frustrated not completely democrat, but with republicans, with the saw that things are getting done. it is challenging to take it to what we are attempting to do it. i can certainly surmise how the president might feel when he sees his senate not providing affirmation to this appointment, confirming them and letting them go on with what is purpose that, what is intended processes about. i can understand not. but here in the people's house, we understand more maybe than any other branch what that means, that we are given the pleasure, privilege, honor and duty of representing the people according to some more than just wins and wishes. i'd like to say to the people back in my district at certain times and i'm not thinking

clearly, we will just go on and do it ourselves. but the constitution doesn't love that. you made that very clear. senator lee, could you explain to us as clearly as possible why there is an important process called confirmation that only the senate is given to do and what important outcomes that has for the people of this great country under the constitution established? >> executive ranch officials, particularly in this day and age ended reticular these nominees. pole position that we had enormous authority. modern formats authority and in some stand, somewhat regrettably in my opinion wholesale policymaking authority that can almost be likened to the authority be wielded legislatures. regardless of how you feel about underlying statute to get enormous policymaking authority to executive ranches they wield

tremendous authority, as two federal judges who will select to go through the confirmation process. said the founding fathers felt it was absolutely imperative that these nominees received in instances -- not instances where it is the recesses for the cause, the rubberstamp of the least one house of congress and for whatever reason they chose to give that to the senate and because they did we take seriously our rule to make sure the president's nominees get credit, to make sure any who do not have a port of those voting in the senate don't get confirmed and joe move on. i think the best way i can summarize my answer to your question is just to say it's important because that's what the constitution requires. even worse frustrating, even where it doesn't make sense, even where it might toward a

check is that our president, which followed them. and we set set a dangerous precedent because it are willing to ignore them for one purpose or another for political convenience of the president or someone else, we ourselves remain vulnerable and every other area. we've relied on the two should protect our free speech and everything else come every other one of the right that can be found in the constitution. we have to onerous procedures of slow growth won't be there for us when we need them because we always need them. >> we always see them in the senate unlike the house at least originally intended represented the states and abroad, brought concern, not just individual people, but it brought concern for the whole future of this great country as an undivided state and peoples together. when i hear the president and the date of the union address talk about we need to get this done and if you would do a do

it. i think it is being acted out in expressed in this process here of non-recess recess appointment stepping down on the constitution, committing a constitutional crisis and denigrating the body that is response for confirmation, oversight, care for what this country needs and making sure we don't have a monarch. i know my time is expired, but it certainly appreciate your commitment to the constitution and affirmation today. thank you. >> seen no additional questions, i think the senator with one closing question. comment. we will have one more. but before we do that, just quickly i suspect there is a reason that the founding fathers gave you the requirement for

advice that they intended you to do a lot less than you are doing with people's work in the house. i might just mention that they didn't expect you to screw around with the preparations quite the way you did. but having said that, i just wanted to ask one quick question. if we wanted it the president wants up or down vote on every one of his appointment that a timely fashion, would it be equally fair for you to consider every vote of the house that we send over that dies in the senate and for us to consider every senate and its form that comes over the senate, isn't it sort of that entire bucket of it is the way it is, not the way would like it to be quiet >> yes. the fact is governments are made up of individuals, especially in a representative government like ours. individuals have opinions and those in the case of elect

officials are based most frequently on the opinions of those they represent. we do have a country in which people disagree paper not always going to have agreement. so yeah, it is true if you take the same logic that would go into the same of heavy will change with regard to prompt automatic consideration of all nominees parsing logic may have vote and consideration by the house was that legislation and vice versa. >> i [chanting] at me now will get to final question if you attempt to give us five more minutes. >> thank you, senator. gentleman from arizona, dr. azar. >> thank you very much. this brings a point of reference that this isn't the only thing that you may have seen because it seems that we've seen these rules when they want them and then we disdain them when we choose to avoid them. are there any other thing seriously in this this administration do besides his

appointment at the congress do, dilation of the constitution was in regulation? >> i've added number disagreement with this administration on matters of policy and constitutional interpretation. images focus on two or three. went out with the president's decision to engage the united states and something i consider a war it would be a without a declaration of war from congress here that is a congressional prerogative. article i section eight not only could you not get the declaration from congress, but he didn't even -- he sort of advice a few leaders in congress as the jets were on their way to undertake that action, but never got a declaration of war. i wasn't real pleased with that. was i pleased please with the president's decision to sign legislation that i read as undermining the fourth, fifth and sixth amendment rights of