sunday's accepted, after presented to him, and also further indicates if congress prevents the return in that case it shall notting a law. the president can decide by himself while congress is in recess, pocket veto lots of legislation he doesn't like without offer to cast an actual veto and pay no political price for it. now, the second obvious casualty of this turn of affairs is congress' right to determine for itself what is recess. as used in the constitution. as generally for that determine as new meaning. congress in recess and the president says it so. i can envision frankly and i don't think i'm too cynical, an analyst cat and mouse game between the two political branches with legislature adopting different models of its operations to make sure they're not going to be found to be in recess and the president saying, that's not good enough. in that regard, while the opinion acknowledges that the senate by continuous operations can prevent the president from

exercising his recess appointing powers, never bothers to define whatever continuous operations. for example, the senate on the floor 24/7? some less heroic version of hirs attendance surfeiss to pass the president's executive scrutiny? here is another fanciful consequence of a president's now boldly claimed power to determine what motive senate operations is sufficient to avoid a recess. why couldn't he do otherwise in ascertaining what a given member of a senate is probably parting in a fill la bust jer the president taking the position that a continuous -- a necessary per rocktive. none would last. third, casualty of this president is the power of its chamber when i already mentioned, prevent more than three days consent an important banks chip which the two houses

use in dealing with each other. again, one of a very few textually anchored restrictions of how congress otherwise can organize its operation as it sees fit. now it's a nullity. it makes absolutely no difference. now, it's opinion mort already described doesn't attempt to wrestle with the broad implications of, for separation of powers of its claim and the president can determine for himself and the recess has occurred. instead it sort of proceeds from to me a rather flawed premise that a senate using pro forma session how it begins it impedes the president's power nap is an utterly bizarre claim. the cons sfugs allows the president to make only when the session is in reez. recess. even one accept the senate is in recess continually, the recess appointment power never comes into play.

now, let me close by saying that i'm reasonably confident, and we can discuss that a bit more, that the courts will strike down this unprecedent eed power by t president. not to do so would greatly weaken civil liberty, the ultimate preservation of separation of powers and checks and balances. unfortunately a great deal is damage has already been done. as an article 2 person, ironic in the process of curbing president obama unlawful power grab the court may write and opinion that might weaken executive authority in other more congenial circumstance. unfortunately, that's the price one pays for acting unconstitutionally and more importantly the price is often paid by the institution of the presidency and not just the particular president. thank you.

>> thank you. thank you very much, david. okay. our final speaker is walter. a member of the appellate and heads the supreme court and appellate practice clinic and is a visiting professor of law at harvard university. after serving in early 1993 as an adviser to the president on constitutional issues, he was nominated by the president to be assistant attorney general. he was confirmed by the senate in october 1993. this was not a recess appointment, apparently. and served three years during which time he was also head of the office of legal counsel. walter is, was then the acting solicitor general for 1996 to 1997 term of the u.s. supreme court. he's published articles on constitutional articles for scholarly journals, including

duke law review and written for the "new york times," "washington post," "newsweek," new york new republic and the "london times." walter, the floor is yours. >> thank you so much, peter and thanks to the american enterprise since stut for putting togethput together such a thorough, pla kags ever this. there's a simple clause could provoke such complexity of argumentation. i'll come to that simple clause in a moment. let me echo what peter has said, that this is, does not break out on partisan lines. there are -- i am comforted that there are those that have served in leadership of the office of legal counsel during the presidencies of president reagan, president george h.w. bush and president george bush, who believes that these appointments are constitutionally valid. there are those who served in those administrations in leadership who do not. i know at least one person who

served in the leadership of a democratic administration who questions any intrasession appointment. so that i think these do not break down neatly upon partisan lines. let me try -- before this gets complicated, let me try first to make it very simple. the provision says, the president shall have power to fill up all vacancies that may happen to occur during the recess of the senate. all vacancies that may happen -- i'm sorry. it says that may happen during the recess of the senate. it does say to occur and to exist. leading to one of the interpretive questions. but the power to fill all vacancies that may happen during the recess of the senate. there is no dispute. i put this to you. there is no dispute that the senate was in recess when the

president made the appointments in question. i believe that is uncontradictable. the senate was in recess. the question is whether it was an adequate recess. in duration, to justify the use of the recess appointment power. let me begin as a formalist -- from a formalist point of view by saying that there is nothing in the text that limit is the duration of a recess that triggers the president's power of apoilt. appointment. it has ban matteen a matter of accommodation that presidents have not exercised the reezcess power when the senate was going to be quite promptly available to advice and don't a nomination. and -- but that is as a matter of a combination.

even if there has been a recess of 37 days, if the senate is about to return and will be available, many presidents have thought, there is no justification for a recess appointment when the senate will soon be available. so the question is, in fact, does this-i woo suggest possibly self-impose pds limitation that presidents will not exercise their recess appointment pow whir there's no practical impediment to rather promptly gaining the advice and consent of the senate. to what end is the fact that there is going to be a recess that is to take place from december 17th to january 23rd? if there are going to be pro forma sessions every three days, at which it is possible by

unanimous consent. business can and was indeed conducted. but where the senate has announced in its forma resolution that had will adjourn and convene for pro forma sessions only with no business conducted until january 23rd when no one, i have not heard anyone suggest in any of the debates that the senate was soon going to be ready and willing to advise about this nomination and to consent or to decline to give its consent to the nomination. so nobody has suggested, a, that the senate was not in recess. and, therefore, that the formality of the clause was not triggered. and no one has suggested that the senate was actually going to be available to pass on executive branch nominations during the period december 17th to january 23rd. that being the case, there seems to be no reason for the president to engage in an

accomodation to decline to exercise his recess appointment power, because of the availability of the senate when his own resolution has made clear that it is not available and will not be available to advising the nominations and when, in fact, the senate has made it clear that it is not available to receive nominations. they actually cannot be received by the senate during this period. now, they could be received. and so what will break up this period of time between december 17th and january 23rd? a series every three days consisting of a matter of a few seconds of a senator calling open the senate and closing it. two occasions on which they went beyond pro forma and exercised business, but the sum total of that made clear that during this period of time the senate was going to be in session for a series of seconds association many seconds times every three days. that comes up to a matter of

minutes that the senate was going to be in session, by its own order. by its expressed statement. one distinguished commentator said we should look at what the senate said it was dock about being in a recess. what the senate said it was not going to be practically available. so that's my short answer. let me back up just a bit to say that, to discuss the hard questions. what has happened to the recess appointment clause is that there are -- there are three positions adopted by history. that may be debatable. still may be debated. thee positions so far adopted historically. that have made this power available. the first is that the phrase, the president shall have power to fill up vacancies that may happen was read from the earliest years to include vacancies that happen to exist,

even if they occurred before the recess. that was actually a huge interpretive step. is actually silent as to two phrases that might have followed the phrase, "may happen." it could have said, may happen to occur. or could have said may happen to exist. it said neither. it just said, may happen. you figure it out. i think the reason that we have aloud the recess appointment clause tofor the last 200 yearso apply to circumstances where the vacancy pre-exists the recess is because of the framer's intention that this clause was to make it possible that the president would be able to fill up offices without delay. the assumption was when they're drafting the appointments clause, that officers shouoffic

fillable without delay. in deed, throughout most of our history. pick's date of 1947 when substantial numbers of recess appointments starting to made within congressional sessions. the senate acted on nominations within one, two or three days. for executive branch positions. that was always the tradition. so w should be able to fill them up without delay, that's the memo complement of hisailable to him. context for having a full so that's number one. it applies and always has, in interpretation, to vacancies that pre-exist the recess. the second big assumption was that -- it applied to intercession recesses that only

last a millisecond. that, to me, is very debatable. that is the road that president obama did not choose. perhaps because it would have take an year off the time of service. but i also think it is much more constitutionally questionable, even though history supports president theodore roosevelt made 163 appointments in one intercession of congress that last add millisecond. bang, bang. he made 160 appointments. i'm not sure that's a proper use, whether it was unlawful. a proper use of the recess appointments power when in a millisecond the next session was going to be available to advise and consent on the nominations. so that was -- that was established. pt thi the third big issue and

rosenberg refers to in his paper at length, whether or not the clause applies to intrasession recesses. like this is the 112th congress. the custom now is first session, second session, each lasting roughly a year each, starting on january 3rd. but within one session, is there a recess appointment power? now, i think the most persuasive arguments made against the validity of actions such as those the president took recently would go to the question of whether there are any valid intrasession recess appointments. at the end i'm not persuaded that the limitations. though i think the arguments are quite powerful. one reason i'm not is that the whole notion of session is very vague in the constitution. peter wallison speak answer the fact that this says "the recess" as if there is one, but there

can be many sessions within a single congress. as indeed the roosevelt appointments were not made between the first and second sessions, but between a special session and another session. so there could be multiple recesses that are intercession within a single congress. and the vagueness of that means, i don't see any particular reason why a recess, if the president has the power to make appointments during a recess, why the fact that the recess occurs within a session? here was one problem with that, that i think olc wrestled with over the years. what's the bottom limiting principle of that? because the house and senate often recess until the next morning. does that mean that president can make recess appointments for people to serve until the end of the next congress every night at midnight as soon as, have they

left? have they gone home? you know? so that has been a problem. i think for those overnight ones you can actually find a textural insight from a provision of article 1 section 5 that i haven't seen cited in these debates, and that is the quorum requirement, a majority shall constitute a quorum of each house bought smaller number may adjourn from day to day without a quorum. and the only two things can you do without a quorum. adjourn, quote from day to day. and the few who are there can compel the attendance of the absent members. i think that is one that, that can't be a recess if it's not a quorum is not applicable. day to day falls within the constitutional amendment. if the reason why and the only reason why the recess would be invalid is an accomodation of

the senate's advice and consent power if they're soon going to be available. why that three-day limit should apply when the senate made it clear it's not going to be available to receive nominations, and is not going to be available to act on those nominations for this extended period of, say, 40 days. that seems, to me, therefore, that neither formally nor functionally is it precluded. the report critical of president roosevelt, it says the purpose of the appointments clause. they criticize using the intercession gap of milliseconds, to make his 160 appointments and say it's evident that, what was intended by the framers was the word recession mean something real

not imaginary like that millisecond between sessions. something actual, not something fictitious. they used the word as a mattive mankind that understood and now understood it, it means in our judgment the period of time the senate is not sitting in regular or extraordinary session as a branch of congress or in the session for the discharge of executive functions, when it's members owe no duty of attendance. when the chamber is empty. when because of its absence it cannot receive communications from the president or participate as a body in making appointments. it's sole purpose was to render it certain that at all times, at all times, there should be whether the senate was in session or not an officer for every office and title to discharge the duties thereof, at all times. so that is a critique of using the millisecond of inintercession, but asks if during what is indisputably a

recess during which these appointments were made, during which these appointments were made, during a prakt cctical ma the chambers are going to be empty and the senate is not going to be available for the doing of business. this was the situation that we're experiencing. as if you ask any american, if everybody in the senate but one or two people have left and they've gone all over the country and they're playing dodgeball and kick the can, are they on recess? those people who say, yes, that sounds like recess. that sounds like recess to me. what? >> when they're in session they're kicking the can. >> that is true. there is some can kicking when in regulations, a session, as w. i think the fact is that before 1948, it was rare that we had intercession recesses, the numbers are 50 -- there were 54 appointments in our history

of -- i'm sorry. you're right. intrasession recess appointments. president reagan took this up by a considerable notch. he made 73 intrasession recess appointments. george w. bush, 37. president clinton, 53. president george w. bush, 141. so far, president obama has made 26. but once we have -- reason they didn't exist before 1980 is that there was no need for intrasession appointments by the president because the nate acted within one, two, or three days when the executive branch nomination was over. if there is a session there is no lack of availability in the session. as a matter of accommodation i'm less troubled to using the

recess appointment clause that has been pending before the senate for a good while than i am in using it with respect to a nomination that has not been pending before the senate. the legality, illegality, i don't think would change one way or the other. those would either stand or fall together. as a prudential matter making it a combination. the reason being if the nomination has been before the senate, the senate has had it within its power to engage within the function. in fact, it chose not to do so. the senate has never had a called up and debated what advice to give the president on the nomination of richard cordry. minority of the senate has prevented that item of business to come before the senate. it has within the power to discussion the nomination and give its advice to the president who then, with their consent, could also appoint. but they haven't engaged in any formal way in the advice

function of having the florida senate discuss and make the president aware of their views of the advisability or lack of advisability of appointment. they have chosen not to agenda that item. it seems to me that the notion that began in 2007 with democrats, the seminar history think that the substantial recess like this december 17 to january 23 recess, this substantial recess could be broken up into a series of many recesses by having these millie seco second session every three days. that idea is the one intended to evade the president's, the responsibility and b authority of the president to make sure all offices were filled without delay. and i do not suggest that we second-guess the senate's determination. it is what it is. every three days that i have a pro forma session. it's said that no business will

be conducted because twice they can because with unanimous consent, they can. that's not the question. they're in recess. the question is, is this a practical situation where the president ought to exercise his recess appointment because of the lack of availability of the senate to provide advice and consent. >> thank you. okay. let me make a couple of comments and then we'll turn it over to everybody else to make some comments. but here's -- i had this question because i am, of course, also nn article ii person. they've been counsel to the president as some of you have mentioned. this is president reagan. and so i am sympathetic to the position of the executive branch on many of these issues. but it seems to me there's no question that the senate is supposed to have some important role in the appointment of the major offices of the government.

and what i cannot get over is what way can the senate protect that power if holding pro forma sessions of three days was not sufficient, then what protection bus does the senate have for that power? the senate can make a recess appointment whenever the senate floor is empty, with a possible exception of the over night, but when the senate floor is empty, the president is able then to make the claim that the senate is out of session and make a recess appointment. now, how does senate protect itself, protect that constitutional power? what suggestions would you have? >> number one, they could choose not to adjourn. >> ever? >> right, right. now, it already is accomplish established by theodore

roosevelt proposal that between every session the president can make a whole bunch of recess appointments. secondly, the senate should have some role when the president can make appointments during the recess. in fact, it simply doesn't. you may criticize that as part of the constitution. but it doesn't have a role because they thought it's important either the senate has got to be able to advise on every nomination in which case they should be in continuaconti session or a poi appoint officen they're not in session. it's not the same power with advice and consent. withed a ve ed advice and conse serve for the rest of your life. francis perkins served through four presidential administrations. roosevelt, one, two, three, and truman. if alive, serving today based on one confirmation.

they were not think that those support to officing would be necessarily changing every time there was a presidential election has as become our election even when it's the same party. they may have assumed that someone appointed to the office would serve forever. so the recess appointment was truly seen as something more temporary. before you have the entitlement to serve for the rest of your life -- >> let me just follow that up, and that is i still don't understand other than the senate staying in session, basically forever, that is not adjourning at all. how they protect their right to participant. and what. >> i'll make one suggestion. the senate of every political persuasion should tell political persuasion, we think this is a proper accommodation. you should not make a recess appointment even in a session -- intercession as long as ten days

where it's been fairly well established now by practice you can do that. you should not do that unless you have first given us 60 days to advise and convent to the nomination. if we haven't brought it up, debated it up and down, then go ahead. but don't evade the process of advice by making an appointment where we've had no opportunity to give you our considered judgment. >> if i may, walter, in the last few minutes, we're getting to the constitution in several important respects. and maybe it's a good idea as a matter of politico science to strike that kind of bargain but it would violate the constitutional text. the senate was not in constitution constitutionally meaningful recess. what you've done at the very front end is defined recess for yourself. let's be clear about something. the framers absolutely expected, i said it early on in my remarks. the framers' approach to checks

and balances allows each brans to check mate. the founders fully respected, with all due respect for doug, the need to execute the law, the framers expected the senate may be able to block, permanently block the president to staff the executive branch. and the price they will pay for it, ladies and gentlemen, is a political price. there are no shortcuts. by the way, to answer peter's question crispably. there's no way for senate to project the powers. back to my cat and mouse game, no matter how you try to organize thims a willful president that would confuse the two issues. which i think walter confuses. inability to provide advice of consent and unwillingness to provide consent, the inability is one thing, the inability has objective standards. unwillingness is not. and the senate