president's nominee. fill buibustering the vote or d absolutely nothing. why do we know that? because under article i, both branches -- both houses of congress are able to organize themselves as they see fit. that is the core of cong congressional authority, particularly in legislature to do that. with two exceptions only. one is article i section clause 4 which provides i use the word restriction about the three days. that is very significant. free days, because you want to ensure that neither branch is able unilaterally to interrupt the flow of legislative business which includes in the senate's case, exercise of advice and consent. section 3 gives the presidents the only admissible tool.

and what does it say on extraordinary occasion, to convene both houses and in case of disagreement between them respectively, time of adjou adjournme adjournment, adjourn as to such time they think is problem proper. that is the only way the branches disagree about adjournment. and i can get into why that's not the case here because senate frankly could not because of filibuster to pass their resolution. that's the only way in which the president can force a recess and pay a political price because it will be a very clear tool. bottom line is this. under the approach adopted by this administration, there's no way for the senate to protect its prerogative which the framers clearly, and again, excellent discussion about what happened in detail and how it is voted upon, i'm not going to belabor that. the senate is totally, totally b berreffed of any power. not just that. i've not heard anybody address my point.

if you allow a car don of branch, executive, to pass judgment on whether or not the congress properly legislated, you have completely upset the balance relative to the led legislatu legislature. the senate votes very rarely. lots and lots of senate business is done, without a quorum, in terms of unanimous consent. the way the pro forma works, i actually went and talked to people and done nothing but that for years. the reason they have two members, ladies and gentlemen, in pro forma sessions, is because one member in a pro formula session can do anything, including confirming somebody, be it a supreme court justice, provide any hearings. but legislative power can be exercised in a pro forma session. it's nothing more than a starting point. that's the reason you have both sessions. you can do anything you can,

okay? and let's face it, senate doesn't work very hard, okay? if you're going to take the position that their unavailability or, rather, let's redefine. unwillingness to give the president what he wants, triggers recess appointments. we're going to have recess appointments all over the place and they will create that. that cannot be. >> a couple of points. first of all, the senate itself has conceded that this isn't recess. the senate has conceded that in numerous ways from the trivial point they define recess on their own website and the way in which we have been using this terminology. second, the comptroller general since 1948 has acquiesced and all sorts of colloquial uses of this terminology. but peter, you know that

ultimately on these questions, like the independent counsel question, you know, how does the executive investigate itself, right? ultimately the question is one of integrity. are people going to act within the scope of their authority to accomplish the taking care of the laws being faithfully executed? is the senate of the united states going to make itself available functionally to receive nominations, to consider them in a timely way? walter's suggestion, i love it because it's the same frank capraesque kind of thing that keeps bringing me back to washington a the time, and that is the belief that you can reason together and set up a process that would make this dispute totally unnecessary and would give some confidence to the american people that some work was getting done. it's not hard to conduct hearin hearings. got them done in one, two, or

three days in the 1920s, 30s, 40s, and 50s. there's no reason that we have to drag out for six months, seven months at a time other than what the senate really wants is not the protection of their prerogative to consider nominations. they want the prerogative not to consider nominations, to block the nominations of the president and they don't have the political courage or the votes to defeat them and, as a result, they skip the process that's outlined in the constitution. >> if you want me to respond to that, just say this. that is the senate is given in the constitution that prerogative to consider the president's nominations. and to the extent that they want to keep the president from making enter, intra-session nominations but they want to go away for the christmas holidays, senate open as far as i can tell is their power to participate in

the appointment process to direction by the president deciding that the senate -- the senate floor is open, unoccupied, and he can now make an appointment. >> would the president and senate start out in that original position? wouldn't they start out in the reasonable man position that, quite frankly, i'm sending over a nomination within a period of time i would like to have a yes or no? >> this would be a wonderful thing if things always worked that way but we're working with law and we're work, in fact, with something even tougher, constitution allow. we have prerogatives of an organization like the senate that proceed over generations. we can't worry about what one president thinks or one senate thinks, we have to continue to worry about what did the constitution provide the senate was going to be able to do. >> and stopped funding, right? they stopped funding particular programs? >> the senate itself can't do that. >> in conjunction with the houses, coconspirators. >> get back to david's point

that politically these things ultimatablely get worked out, right? if you don't fund the department of labor for a period of time you pay a political price for that somehow. >> shut down or the government. >> you shut down the government. we've certainly played a political price, we've seen that happen. we see the language in the constitution and i sant seen an answer on how the senate has ever protect itself. >> you act as if the framers did not address that question. >> i wasn't there. reagan was. >> hamilton's federalist paper addresses this question. it says this is a choice we have to make if we either have to decide that the senate advised an consents to every nomination or we -- which would have the effect of them not available, mean that offices would go unfilled. or we have to make some provision that all offices are

filled without delay. now, if you allow the president to fill up vacancies by granting commissions that will last until tend of the next season, that is inevitably going to be, quote, an enron around the advice and consent because there is an alternative way to fill in the offices. they thought about the fact that the since that the senate would not be able to play a role with those. they've decided to include it anyway. it's not as if they just recognized -- >> but hamilton -- >> hamilton made it very clear that the framers understood that doing nothing was okay both for the senate and for the executive. and the consequence. the electorate would pick out who screwed up the process and who should be b pun nushed.

you said that the duty to take -- the senate not acting was a violation of doing the take care clause. >>obstruction. >> right. is the president violating the duty to take care clause when he doesn't submit nominations? when he allows important advice and consent positions to remain vacant? i remember from at least from o kill a program was to not send the nomination up. let it cry foul. let it have an acting there who was afraid to do anything and that is a traditional obstruction of congress' ability to pass laws and to oversight it and make sure. isn't that an oversight of the

duty? >> congress blocks appropriation' writer, a clear statutory duty, is it not a violation then of a president's take care clause and being so powerful, should he cgo and withdraw money from the treasury? >> let me add on to that one thing, an example. here's a post out there in the federal housing finance administrati administration. for 3 1/2 years. as imposed con zer orships, hasbroed $150 billion for bailouts, and is that everything and we have in that office somebody the president hasn't bought it from nominating. >> and it's no way to run a railroad. the answer is, yes, the president is slighting his duty

to take care that the laws are oh we. >> constitution, in regard to nominations as i pointed out in my opening talk, that's okay for the president to do that. >> the remedy for that is the one peter identified, and it is to the extent that it is known that the president is consist t consistently refusing to appoint people, to carry out the way the laws created. he will pay a political price. but this methodology of the denying the president's about that he has clearly under the texas of the constitution and thereby carry out his own duty is for the senate of the united states to obstruct the enter excise of that duty and for that he should not be held accountable. the senate of the united states should be held accountable. >> he violates his violation is subject to his political year. but this is subject to some self help by the president. >> or subject of the text of the constitution. >> the text of the constitution,

what we are all missing here is the core of being a coordinate branch of some exceptions relative to congress's power to create interior courts. the core of being a cordoned branch is it cordons us off. other than these two provisions i mentioned in article 1 and article 2, that the excess tive, article 2, compares judgment about what article one is doing. and by the way, with respect, the reference to the congress itself out there in recess. also the opinions. you're not supposed to cherry pick. the bottom lineered opinion. let's be honest, i heard walter and you mention several times, insblt. >> it's not inability. it's unwillingness.

they don't want to give the president the saying. two person? i am sorry about that. but that's their -- there's nothing constitutionally disfavored about sending in nominations and never giving them a hearing or having a blue slip or having a filibuster. absolutely nothing. that's how it's supposed to work. >> time's change. it was just a few years ago i remember a whole lot of republicans in this town were awfully concerned about judicial filibusters. even making a lot of noise about them being unconstitutional to the effect that they entrenched, that was the word of the moment, entrenched rules that new members of the senate couldn't change. and successor legislatures were bound we something they didn't agree to. that was -- it is a serious problem to leave large numbers of judicioe judiciary numbers v. we had an opportunity to correct it. >> i think there's a flatness there. i think i know where our difference is, illegal

interpretation comes about. my friend mr. rifka keeps saying that the president is second-guessing the senate's that it is, quote, not in recess. >> not second-guessing, overturning. >> i don't know where you find this quote, senate determination that they're, quote, not in recess. they are in recess. that recess is interrupted every third day by a session. during that session, they can enact business and during that session, you know, as shown by the fact they did it, they're not in recess at that moment. but other times they are in recess. so the question is, is the process of -- are they practically unavailable to engage in their advice, not unwilling but practically unavailable? >> constitution ali meaningful recess. >> hey. >> gentlemen, i'm going to have to interrupt because we do want to get to the audience.

and there's at least -- at least there's one other former assistant attorney general in terms of office of legal counsel here who might be able to add something in addition to what we've been able to talk about. so, charles cooper, you have a mike, would you please have something to say? >> thank you very much, peter. i would like to ask the very distinguished panel a question. and i especially would like to address this question to my old friends, walter dellinger. as you mentioned, i spent some time in the office of legal counsel executive branch and i bow to no one. in my troercreference to articl. my friends have outlined this is unsustainable. i want to ask a question that seems to me to be the hardest one in my mind for those like

llc and others who defend these recess appointments as. and that is it. doug, you mentioned you think these are a sham, that's the term that olc used and others have. so i want you to focus on two familiar dates. december 23rd, the day on which the senate and the house, both in pro forma sessions, passed law by unanimous consent. and in so doing, not only complied with their obligation to meet every third day in the absence of the consent of the other body, and so we're in that session actually performing a constitutional responsibility that they come into session. also exercising the quintessential responsibility of a legislative body, which is pass legislation.

was the senate in session, did it come into session on that day? did that particular session interrupt the december 17th to january 23rd recess that you were citing? same question is this, folks on january 3rd, a day when the senate came into pro forma session to satisfy another constitutional obligation. in addition to the every third day requirement article i section 5. and that's the 20th amendment. constitution demands that both houses come into session on that day provide. and on that day, the next session began, unless there was

no session. if there was no session, senate was in recess. and this wasn't intercession rece recess, was it not, from december 17th to the january 23rder? there was no -- this wasn't an intrasession appointment. and so gained strength and the fact that it was an intercession recess and appointment but it loses a year on its term because it has to end at the end of their next session. so i would like to hear the answer to these questions and how it can be said that these pro forma questions, they did not interrupt the recess of the senate. >> one factual question for you, chuck, and that is, on the

january 3rd compliance with the constitutional -- with the 20th amendment, did they in any way lift the direction to themselves that no business would be conducted? >> january 3rd, sir? >> right. >> not that i know of, no. >> no, i think they didn't. so as a result, i think the two dates are different. by unanimous consent they came back into session and accomplished business on december 23rd. and interrupted their recess. >> right. >> let me say, i totally agree with the premise -- with your premisof your question, with -- that on december 23rd, the senate was in session and legislative session. it was not in recess, it enacted law that was not a recess. but the question is, when

congress announces that it is adjourning on december 17th, adjourning until january 23rd, 2012, with pro forma session that is to be conducted, whether that is a circumstance in which the president should be comfortable exercising his recess appointment because the senate has said it's not practically going to be available for that purpose. to me that's easy. so i don't think the fact that they have interrupted it by a session when they do business is controlling when you look to the real practical considerations that both the senate in 1905 and attorney general daugherty in 1921 said this is a practical question. are they in business, are they meeting there, are they available? if they're not available for this purpose, then there's no reason why the president is not exercise his autricu, you know, recess. >> and i just link chuck's

question with peter's. nothing illustrates better to put it mildly the eclectic nature to a definition of a recess. let's see what happened. so they met in the same pro forma session guided by the same standing order on december 23rd, as they've done three days later. but the reason we know it was not recess, it was session because they passed something. and for all the dozens of other times when they meet and don't translate business, especially when you have standing orders, which, again, is nothing more than a starting point. i said three times, the reason you typically have -- unless it's a gentlemen's agreement. democratic senate or republican senate, by time you gavel in and by the time you gavel vel oout,

person can do anything by unanimous consent by new quorum. you can repeal the entire u.s. code, vacancy exists and the president submitted the names. so these absolutely nothing structurally that's different about december 23rd versus three days later except that they actually did something. that cannot be the load stock, constituti constitutionally principle load stock. you keep using the word unavailable. that's -- we're good friends, but that's not true. everybody knows that they are not going to confirm both people in accordance with the procedures which is filibuster. nothing to do with unavailability. the real purpose of the recess appointment clause was honest to goodness situation where particularly in the 18th and early 19th mode, they were gone. and a vacancy a arose and there

was no way to gauge their temperament. here, and unless -- we talked about it at lunch. unless you take the view that the senate constitution oh owes the president an up and down vote, you say no, they can reject it in numerous ways. they have to approve. >> you keep assume that i disagree with you. that the senate was in session on all those other third days. i don't. they were in session on december 23rd when they passed that bill and they were in session three days later. >> not if n between. >> not in between. they were in session three days later -- wait, let me finish. they were in session three days later for nine seconds, three days later for 12 seconds. n between, should the o the president exercise his appointment power because of those sessions and the practical consideration would suggest the answer is no. >> okay. let me -- this is what happens when you have a bunch of really

good lawyers. this can go on forever. let's go all of the way to the back. please identify yourself for the audience and -- todd zewicky george mason law school. there's no issues, constitutional question when it comes to cfbb and statutory question which is the real issue there is what the -- whether or not certain powers, to summarize them as powers to go after nonbank lenders, transfer to the cfpb, effective the cfpb, under the statutory language that happens only upon the appointment of a confirmed director which is define in the statue as somebody nominated and confirmed subject to advice and consent power. i ask a different question, statutory interpretation question, it strikes me, whatever quadre is, he's not a confirmed director under the language of the statute which

means those powers do not vest in this cfpb. >> okay. now, let's get that question down. i think we have that one. >> good question. >> do you know want to hand tha? >> i think what you're asking is, is a recess appointment to a particular office get all the powers of that office during the period that the recess appointee serves? and -- >> that's not his question. >> his question is, suppose the statute says that you have to be confirmed by the senate to be the person whos that powers. >> no, but it's over written by the recess appointments clause. that's the point of the recess appointments clause, so to get somebody in there who can do the full job. and that's why, i presume, the president waited until the new

session of the congress to that he give this guy two years to do it and beyond his administration. but yet -- >> i'm not quite sanguin that's the outcome. congress has created the terms and duties of the office and can assign them as he will. under this particular statute it's assigned some duties to the director, some duties to the treasury, as i recall, under subtitle c, or -- >> f. >> f, under these provisions. and i think the recess appointment gets what is the nature of the office and if the nature of the office is intrinsically limited by the statute, i would tend to think the statute is going prevail. >> let me ask the question though. the question is whether it's constitutional for congress to give fewer powers to someone who has been recess appointed. i don't know. that's a really interesting question. but one sort of count eer hypott

ti i would be. only when the senators are in place to show these powers, whether congress could sort of constitutionally raise the bar and -- or whether the causes of the constitution would supersede any sunch legislation. saying congress can't pick and choose among executive branch officers who are constitutionally appointed. good question. >> i agree with both morton and walter, i think that congress -- not rule 11 but i don't think congress can statutorily carry all of the duties a confirmed executive branch office would have carried. >> you know, let's remember the legislative veto case. you know, the congress can't use its plenary powers to internally

organize itself in a way that disregards article i section 7. so if, in fact, the organization of this office disregards some textural provision of the constitution and i'm not convinced that the recess power one is enough of a text for that purpose, as opposed, in the same say that it was enough to point to article i section 7 to stop the legislative veto. >> specifically exempted the rule making power of each house from chada itself. >> specifically did. >> one more question from the audience. >> chris russell with congressman scott derek. just on the one point of whether the senate was unable or unwilling, i guess, to -- the senate did actually weigh in. 44 senators sent letter, hey, we'll confirm him if we get these changes to the law. they weighed in.

they aren't going to without the problems. dodd frank only gave one congressional check over the entire new agency of the cfpb. that was to have the head confirmed by the senate. and now they've already run rough shot over that one check because they sent the funding up outside, sent all the powers up outside. and so is it not -- i mean, i do not article i section 9 lays out to the congress the powers of the purse. ang lot of members on at least from the republican side, at least, view the powers in a whole body of the set up is unconstitutional. just on terms of can we get gentlemen agreement on these things, all this stuff is so new and outside the norm and, dare i say crazy, all of these changes, that, yes, of course people on the other side are going to think they're understand constitutional, they're going to use to constitution use at their disposal to make sthur the