over the course of the considerations the delegates rejected attempts to vest the appointment power solely on the president or in the legislature, and in the end, a compromise was reached that required the joint cooperation of both branches to achieve the goals of responsibility and accountability. the finely tune scheme established by the framers provides for three separate and distinct stages of appointments. the first is the nomination by the president alone. the second is the senate's ascent or not to the nominee's appointment, and the third is the final appointment and commissioning by the president. each stage -- at each stage the respective actors' prerogatives are carefully and clearly demark and long been understood to be exclusive and plenary. my conclusion about legal

propriety of president obama's reported intrasession recess appointments is straightforward and direct. the appointments were unconstitutional, because there was no senate recess that is necessary for such actions. the president's unilateral determination there was one did not make it so. the constitution vested in the senate the sole and unreviewable power to confirm or not to confirm a presidential nomination for a principle officer of the united states. a decision to deny confirmation can be made for what may be perceived as a good reason, a bad reason or no stated reason at all. the constitution also provides that the senate with an unreviewable authority to determine the rules of its proceedings allowing it to say whether it is a constitutional recess or not, thus protecting a

way of protecting itself against improper presidential intrusi intrusions. the recess clause which recognizes the use of temporary appointment power only on the contingency of a constitutional recess was not triggered in this instance, because the senate determined that it was not. the president's actions were, therefore, an unconstitutional usurpation of the president's plenary confirmation authority in violation of the framers carefully constructed scheme of checks and balances to protect this from one of the political branches. thank you. >> thank you very much. our next speaker is doug who is the caruso family chair and professor of constitutional and human rights law at pepperdine university. he was previously the u.s. ambassador to the republic of

malta. one of the reasons i was eager to have doug here was because he, just to show this is not necessarily a partisan issue. doug was the assistant attorney general in charge of the office of legal counsel during the presidencies of both president reagan and president george h.w. bush. so he is, at least was, a republican, and that shows that this can come out in any number of ways politically. it is truly a constitutional issue. right now doug is the -- doug's academic career includes serving as dean and st. thomas more professor of america in washington, d.c. and professor and director at center of law and the government at the university of notre dame where doug taught for close to two decades.

do you want to speak from there or from the podium? >> you know, all professors have to stand. >> all professors have to stand. good. >> glad to be here. >> okay. >> good afternoon. it's going to be with you. you know, it's, having spent the last several years in, in the middle of the mediterranean, a nice, quiet place, you know, after the help the president get elected you have to wonder what he's thinking when he sends you off to an island far away, but -- and then war breaks out all around you. but one of the things that that prompts you know, we were the closest country geographically to libya. indeed, it fell to our responsibility to rescue the personnel and embassy tripoli when the shooting started, and this californian managed to do that by renting a catamaran and showing up in the middle of the winter storm to bring them home and thankfully they're all safe.

the point of that is not just to reminisce about those days in the middle of the mediterranean, but all of those countries in north africa are experiencing a desire, a yearning, to have what we have. to have a democracy. to have the opportunity to determine their own fate. to live free of violence. to have economic opportunity. to have property rights that are respected. these are the things that they want, and, of course, the essential aspects of those things are that a democracy has the capacity to be accountable. to be transparent. to be -- to be effective in its application of the rule of law. i happen to be the proud grandfather these days of two new grandchildren. one of them is named robert jackson, and -- after that

robert jackson -- because i'm very fond of justice jackson and because one of the things that he observed about the separation of powers is that the constitution diffuses power the better to secure liberty. it also contemplates that practice which will integrate the disbursed powers into a workable government. it enjoins upon its blanches separateness but interdependence. autonomy, but reciprocity. as with the late edward levy, robert jackson believed that the branches of government were not designed to be at war with one another. the relationship was not to be an adversarial one. in that sense, mort, you and i are equally concerned about what we see happening between the president and the congress.

but vie i have to say that my conclusion is much different than yourself as to the source of the provocation and the source of the difficulty. because, if one steps back and looks at the obligations of the president of the united states under article 2, he has one essential obligation. to take care that the laws are faithfully executed. well, that obligation is a constitutional obligation, and that obligation requires, of course that he be given some help. peter here is looking very pensively. you know, i can recall those wonderful days during the reagan administration, and when he had that look. you know you were to get to work. and so i will get down to business. the fact of the matter is, it's that i think the people of the united states, if they were quizzed about the meaning of

those provisions, which they always see what they mean. yes. they're our principle officers and inferior officers. the principle officers need to be appointed with the participation of the senate. the inferior officers do not. and the offices other than those provided for in the constitution are determined by the legislation. and, yes, oh, yes. there's a provision that makes much sense. you know? you're not going to be there all the time. joseph story said, look, there's really only two choices here. either the senate's going to be in session all the time to take the president's nominees and to consider them, or the president is going to be, able to take advantage of the appointment clause to take care that the law, successfully executed. the notion that somehow that provision in the article can be

defeated by a pro forma session, a pro forma session where, like, fraternity boys, the democrats -- i mean, the republicans are now racing each other to see how little time they can spend in getting it accomplished? where, in fact, they provide, because they're all off in one place except for one or two of them that no business will be conducted? this is the american enterprise institute. the underscores enterprise. that's not enterprise, and that is not enterprising, and nor is it faithful to the words of that constitution to devise the office of legal council, my successorers called it a sham. that's an apt word. you could call it a gimmick. i would call it embarrassing.

indeed i would tend to want to use some of the very same words that alexander hamilton used in federalist 67, the most comprehensive treatment of the recess appointment's clause, because, you know, one of the things you discover when partisanship really gets bad, when, in fact, we're not seeking to integrate the powers, to have a workable government, but instead we're simply looking for ways to throw in the brakes. to stop all progress. to make sure that that bill that was passed with the majority of the people's representatives, the dodd-frank bill which i suspect most people in this room find anathema, but neth neverth was passed by a majority of the people of the united states. when the appointment power is used to defeat the will of the majority, it seems to me that

we've got a problem, and we've got the same kind of problem that hamilton addressed when he was addressing those who were making up arguments about the recess appointments clause overstating the problem. what was their argument at the time? their argument in federalist '67 was that the recess appointments clause would allow the president of the united states to substitute, to appoint new members of the senate when the members of the senate happened to die off. well, of course, there was nothing plainer that that wasn't true. you just had to turn to the text of the constitution and you discovered that it was the state executive prior to the 17th amendment who was going to fulfill that and hamilton said, my word. how low these opponents of our constitution, you know, would stoop. they take pains to signalize their talent of

misrepresentation. they make a presidency that is no greater than the thimble of the governorship of new york -- not to be confused with the mayoralty of new york. that, quite frankly, the language in federalist 67 is language quite appropriate to modern time. times of adversity and ex partisanship. i have taken pains to select the instance of misrepresentation, says hamilton, and to place it in a clear and strong light as an unequivocal truth of the unwarrantable acts which are practiced to prevent a fair and impartial judgment of the real merit of the constitution. well, ladies and gentlemen, that's exactly what's happening here with these arguments against the president's exercise of his constitutional authority with respect to recess appointments. if the men and women in this

room who advance the human good of american enterprise will align with the sham of no business sessions, then we really are -- we really are impoverished. now, let's just say a few things about the nice outline that our -- my friend, the counsel to the president gave at the beginning. he says, the supreme court of the united states has never spoken to this question, and that is true. justice stephens did dissent from the denial of serb aware in evans versus stevens dealing with the recess of william pryor to the 11th circuit. you see, i still have friends on that side of the fence, too. and he is a wonderful judge. now, there's great difficulty, however, with recess appointments of the judiciary and i think justice stephens was mostly concerned with that, and the reconciling of the lifetime

appointment with the shortness of the recess period as defined in the constitution. one has to wonder, and i do wonder, peter, whether the court will take it, because, you know, this is the kind of question if there hadn't been already so much forward activity, one might think after you know, prior to baker versus karr and so forth, might have been a political question. might be exactly like those questions where there's no manageable standard that could be readily applied without embarrassing one branch or the other. so i think there will be difficulty in getting a definitive court analysis. and so in the absence of that definitive court analysis what does one do? well, one, it seems to me, has to deal with the arts that the eminent scholar mort rosenberg provided for us. but if i heard most of those arts, they amounted to a sort of

bafflement on mr. rosenberg's part why there were so few of these intercession appointments early on? well, it turns out the reason was, it's because there were very few opportunities for them to take place. the senate didn't meet nearly that often, or for extended period of times. they had extended periods of absence. virginia chu, whose done a definitive study of this for the congressional research office determined that, in fact, they worked more in the old days. they didn't take -- they didn't take time off to disappear and just leave somebody around to do no business, and to see how fast they could get no business done. boy what a standard there is. america where no business is done and we do it faster than anyone else.

that's not the standard of the constitution that the office of league counsel seeks to advance and not the one i venture you and i want to advance either. we may not like the dodd frank bill and think it overly em cumbers the security markets, we may think that the authorities are better off exercised by the treasury department, we may have all of those objections, but those objections are to be heard in the debate on the legislation. once the legislation is passed, they are to be advanced. the law is to be honored, and that includes honoring the recess appointment authority of the president. you know, there was another reason i think more for the lack of intercession appointment, and that was because the initial years were spent trying to figure out which vacancy was covered. these that existed prior to the recess, or those that only arose

during the context of the recess. that was where most of the focus was in the 18th and 19th centuries. but with the exception of the misguided attorney general knox who was rather promptly overruled, it seems to me every attorney general that examined this and every office of legal counsel that examined this indeed concluded that intrasession practices have by virtue of tradition if nothing else, and tradition counts for a lot with article 2, because it is so less defined than article 1, has become the standard by which the president can exercise its authority. i see that counsel of the presidency looking at his watch virtuously and i want to give the panel members full time of their own. i will just end with this one thought.

and that is -- that the constitution is law. that is what i learned at the knee of chuck cooper who is here in the audience. that it's not just merely a -- a document to be hung nicely and to be admired for its fine, eloquent words which exist. the constitution is a reflection as madison said, of human nature. i think one of the things we know about human nature is that the powers do need to be divided in order to secure our liberty, but the powers also need to be exercised in a coordinated and an efficient and effective fashion to advance the rule of law. both interests are important. our founding generation was as rappelled by king george as they were by the inefficiency and ineptitude of the articles of confederation and a practice

that invents the fastest way to do no business is to return to the articles of con fedder nati confederation in a very large way. thank you very much. >> our next speaker, among these distinguished counsels on the panel, is david rifkin. david is a member of the baker hostetler's international enveermt groups and co-firms pellettes and major motion team. extensive experience in constitutional administrative and international litigation from 1992 to 1993 he was associated executive director and general counsel to the president's counsel on competitiveness. while at the white house he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the counsel. he's also served as associate

general counsel at the united states department of energy from 1990 to 1991 and played a significant role in developing the reagan and bush administrations regulatory and legislative proposals affecting natural gas and electric utility industries. david, the floor is yours. >> thank you. thank you to peter, and thank you to you for putting this on and giving an opportunity to visit and see a few old friends. to dispel any lingering doubt, i'm with mort and i thank peter, i think they're unconstitutional because the simple fact the senate was open for business and there was no real recess. i was planning on spending time pressing you with a relevant constitutional provisions answers talk a little about the framer's design, but mort has done that and i see we have a couple of relevant quotations. so let me grab the bull by the horn and launch into what i

consider to be the more important part of the discussion of this issue, but let me -- i cannot help but make a small rejoinder to my good colleague mr. kmiec by pointing out that the framers in a typical fashion adopted in developing an overall scheme for the appointment of executive officers, a typical style of checks and balances where you can stalemate and respect the overarching goal of the constitution is diffusion of power and circumstances where nothing gets done. anticipated when nothing gets done that's not an excuse for the president to resort to a little self-help. the constitution framers assumed rightly at the time that congress would convene for only part of the year. long stretches of time, ladies and gentlemen when the senate would be unable -- not unwilling, but unable to participate in the advice and

consent function. their solution was to allow the president to make temporary recess appointments to enable individuals chosen in that fashion to serve up to two years until the end of congress' next session, and this would give the senate when it comes back time to consider confirming them, or not, as actual nominees for the offices. for which they were chosen. now, we all heard about the fact that this authority was at first barely used. that being recess appointments. it came quite more frequent in recent times. let'sen candid and bipartisan as a waif working around the senate's opposition to appointments, they consider to be politically controversial. now, let me be very clear. i am, all my experience has been in the executive branch. i'm very much an article 2 man. i don't begrudge the executive desire to have members of his

administration who share his vision. indeed, denying the president opportunity to populate the executive branch with people who share his vision, and particularly doing so about barring to vote on them makes the president's life difficult and occasions, a confrontation between two political branches. here i have a point, confrontation between the two political branches while not to be macon likely is somebody expected and desired all in the service of diffusing government authority to protect individual liberty. in any case, even congress' most unwise obstructionism does not empower the president to disregard the plain language of the constitution. and that's why no matter what the acrimony up until january 4, the president's lawyers have always told him that the recess appointment can only be constitutionally exercised when the senate is in recess. now, we heard that the constitution does not define the recess, however, in the old original purpose of recess

appointment that mort discussed at some length that of a temporary gap filler, a significant period of time, more than a few days, has always been considered a necessary prerequisite. this is particularly the case, ladies and gentlemen, because the constitution also provides, and one of few constitutionally anchored limitations on how congress otherwise on article 1 can organize its affairs that neither house of congress may recess for more than three days without consent, all done to ensure that the flow of congressional work which most certainly includes the senate's exercise of its confirmation authority cannot be unilaterally interrupted, and the senate can hardly be -- such agreements. we heard implications, bad order to pro forma sessions. indeed, did not originate with the republicans. did not originate in this administration. it was invented by late senate

of burden practiced during the george w. bush administration. and let's stipulate the senate is used both sessions of its own accord or at the request of the house to block recess appointments by staying in session on pro forma basis. now, let's be clear about what both sessions do. they are pro forma but only in a sense that -- not in a sense, excuse me. the senate is incapable of conducting business or be it on the basis of agreement of legislative measures can and only be adopted by unanimous consent or by an actual vote. the problems, ladies and gentlemen, with presenting this is somehow a remarkable situation, much of the senate's business is transacted without a quorum by unanimous consent without votes being taken nap was exactly the situation that president obama made his appointments on january 4. now we heard already from mort

that the senate which was controlled by the president's own party was fully capable on january 4th, capable, that's the key word. not that it did something, but capable of performing both legislative and advise and consent function. how do we know that? we know that because the senate operating on exactly the same pro forma rules in january as it did in december passed the president obama's highest legislative priority, the two-month extension of the tax. when the vote of the vote wan defective and lawyers void. president obama rejects this view. in effect, the president is claiming an open-end and rather eclectic to determine the senate in reez. this is an astonishing and unprecedent excerptation. it's not up to the president to decide in the senate is organized properly or working hard enough.

there's a great deal at stake here, as always the case, or always always the case in separation ever howers. most obvious impact in that the action take bein the new appointees, i think president obama has done his appointees in the agencies he claims to be concerned about, and doing no favors, because i think the individuals who are impacted by their decisionless take th less to court. massive regulatory uncenter. oh, i stick my neck out, under the teaching of due process, steele verse mrb, the court will overturn these decisions although there's additional procedure, those decisions would go down. frankly, that concerns me less than the constitutional applications. what the obama administration has done seriously warps the sprays of powers and key congressional prerogatives in several ways. the first one is the right of congress to determine rules of

its proceedings which is very clearly spelled out in article 1. the president's functionalist approach strips this power away from congress and claims in effect that the president can pass congress' description of its own actions and determine for itself what is happening here. now, why that such a big deal? fundamentally we'd shift the balance ever power between the two political branches. we know the president participates in legislative business but power to block legislation is not absent one. presidential vetoes have been overwritten. but under the functionalist approach the president would be able to disregard without bon erg to veto a legislation during a statute congress properly enacted. how joet president can say that the senate was not transacting morning business in the morning. or not there. no vote taken. any legislation passed by the forum of a senate, i emphasize, this is how most of the senate's business is done, no limiting principle here.

no fundamental distinction between the normal business and the pro forma session when the statutes are unlawful. and future presidents would be able to fill the administration with numerous unconfirmed officials serves close to two years and indeed not even bothered to seek senate's advice and consent as president obama did on two commissioners. this would dramatically alter the power between the two political branches by preventing the senate, god forbid from blocking the very people they wanted to block. again, absolute constitutional right to do so. and that would enable the president to exercise blocks of time. two years each. rejecting the president. now, an area that would undergo dramatic change is the use of a pocket veto as we know the constitution provides a bill passed by congress not signed by the president becomes law within