>> and i will moderate the panel that we have this afternoon. let me start off with some basics. the relevant sections of the constitution are up there. up there on the -- on the chart. but we'll be dealing today, mostly, with article 2, section 2, clause 3 which says the president shall have the power to fill up all vacancies that may happen during the recess of the senate by granting the commissions which -- by granting commissions which shall expire at the end of their next session. now, there's a lot in this

single sentence, it seems to me, that we should find helpful in understanding the issue we'll be dealing with. first, the language says that the president has the power to fill vacancies that happen during the recess of the senate. this is quite limiting language. and it seems to me that the president was not intended to have the power to fill vacancies that happened while the senate was actually in session. none of the recess appointments that we'll be talking about today actually occurred during a recess. they all occurred while the senate was in session. so, right away, there is a question whether the president has the power to fill any of these vacancies. second, the language refers to the recess suggesting that the contemplators only meant one recess. if the framers meant one recess, it seems very likely that they

had in mind the time between the senate's adjournment and the time of the beginning of the next session. which, under the constitution, must begin on january 3 of the following year. if this is correct, we are not going to be talking about recess appointments that were made in the period between sessions of the senate. the recess appointments at issue here had begun the second session of the 112th congress, the one that was elected in 2 0 2010. the terms you will hear about during the discussion are important. it gives the president the power to make recess appointments that are inter-session. that is between sessions. that's playing from the wording of the constitution. what is at issue, in this case,

is whether the president has the power to make recess appointmen appointmen appointments intra-session. that is while the session is still going on. where did the president get that power. the answer is, i think, that it is nowhere in the constitution. and the presidents -- and presidents -- especially modern presidents, have simply done it and the senate has general lill acquiesced. as the director of the consumer financial protection bureau and three members of the national labor relations board. as you listen to the discussion, it's important to be ware of several facts. first, modern presidents have made hundreds of intra-session -- intra-session recess appointments.

first, president george w. bush, for example, made 141 such appointments. second, the supreme court has never spoken on the issue. and a few lower courts that have considered this issue, have not done a thorough constitutional analysis. so the questions on the table today are not encrusted with complex precedence. third, these appointments are almost certain to be taken to the supreme court. not only for the reasons you will hear in today's discussion, but, also, because the policy stakes are very high. in the cawdry case, the question is whether the consumer financial protection bureau will be able to function if the director was not properly appointed. and the same thing is true of

the nlrb if it doesn't have a quorum, which is three out of its five members. the policies of both agencies are opposed by groups who will certainly have the standing to contest the authority of the president to make these appointments. win those cases, agencies may not be able to act and their interim actions may actually be held to be invalid. fourth, an argument can be made that the senate has already considered cawdry and rejected him when it could not assemble 60 votes to bring up the nomination for debate. so the argument usually advanced to support recess appointments that the senate's absence in a recess makes it impossible for the president to appoint an officer and receive senate confirmation. it doesn't really apply in this case. fifth, until these

appointments -- until these recent appointments, the accommodation that seems to have been reached between the president and the senate was that the president could make intra-session appointments if the senate was out of session for an extended period. before these appointments, the shortest prior intra-session recess appointment was made when the senate had not been in session for ten days. the obama recess appointments were made when the session -- when the senate had not been -- had be an intra-session recess for only three days. the senate had set up a serious of pro forma sessions, one every three days, that lasted for only a few seconds. the purpose of these sessions was to make it impossible for the president to make a recess appointment while the senate was out of session for as many as ten days.

the democratic senate had adopted the same ploy to prevent intra-session recess appointments by president george w. bush. and it had worked. he did not challenge it. but president obama has challenged this idea. a memorandum by the justice department's office of legal counsel argued that these pro forma sessions were shams. and should not be deemed to narrow the real number of days that the senate was really out of session. you will probably hear a lot about that subject today, whether the pro forma session were add quotid. you should keep your eye on the ball, it seems to me. the constitution's language is the heart of the issue. it seems to give the senate an

important roll in all appointments. you can see it up on the screen over there. no one questions that the constitution gives the senate a majority -- a major role in the appointments process. if that's true, then here's the question you should probably keep in mind as you hear the discussion today. if the president can make recess appointments whenever the senate is out of town, what is left of the senate's constitutional power to advise and consent. now here's the way that we will proceed in today's session. the first statement will be made -- mort rosenburg followed by doug kamick, david rifkin and walter dellenjer. after the formal presentations, i'll give the panelists an opportunity to question one another and i'm sure we'll see a

spirited debate at that point. then we'll go onto questions from the audience, so keep track of the thing that is you don't think have actually been covered and we'll try to address those. many thanks for being here. i hope you find this panel, as i think you will, informative. let me start, then, with an introduction for mort.

>> and his -- his opinions, there were nine of them during that period, were extremely important in establishing some of the basic ideas for how we look today at the appointments process. he also served as consultant and general counsel -- to the general counsel of the public company accounting oversight board, known as the pcaob, and its private counsel in preparing briefs and presenting oral arguments before the supreme court in the 2009 case free enterprise fund versus pcaob, which was another appointments case. he's also been a specialist, as i've said, in american public law with the american law division of the congressional research service and specialized in the areas of constitutional law, administrative law and

process, congressional practice and procedure and labor law. and in problems raised by the interface of congress and the executive branch in 2004 -- i'm sorry, in 2005, he was the recipient of the 2004/2005 mary c. lawton award for outstanding service of the american bar association. mort, the floor is yours.

>> i feel the trepidation of a dissertation defense or an appellate court argument. . but i will plow ahead. i'd like to add one or two facts to the factual background that peter has just given you. the resolution that put the senate into pro forma session, as it is called, said that no business would be conducted during that period of time. and the office of legal counsel memo that has been relied upon by the president to do these recess appointments makes a big point of, gee, we've been told that no business would be conducted. in fact, business was conducted.

on december 23rd, congress, by -- the senate by unanimous consent passed the taxpayer continuation act, emergency taxpayer information act of 2011. and that is quite a legislative act. in a previous pro forma session, in august of 2011, similarly, the senate by unanimous consent, once again, passed an f.a.a. bill which allowed it to continue operating. both of those were deemed to be emergencies. they had to be passed. that were insisted upon by president obama and they were passed. the conceded purpose of the pro

forma sessions that we've -- that have occurred in the last six months was to prevent the president from making such appointments. had he made the appointments in question during the intersession, that is between december 17th and january 3rd before the beginning of the second session of this congress, the appointees would have held office for a year. that is until the end of the next session of the congress. but by weighting until the intra-session period began, the appointees can now hold, unless a court rules otherwise, that they can hold office for almost two years. so the choice there of doing these recess appointments during

a more plausible inter-session period were done for political purposes. and in an intra-session, which raises greater problems. however, what makes these apointments more significant and troubling is that they portend a very sharp escalation of an ominous trend that has taken place in the last decade. during this period, intra-session recess appointm t appointmen appointments, for the first time in our political history, have exceeded inter-session appointments by a dramatic 5 to 1 ratio. with the four obama appointme s appointments, the combined numbers for the bush and obama administrations is 171 intra-session appointments to 36 inter-session appointments. if the loc's notion that the president is free to unilaterally determine when the senate is in a constitutional

recess is accepted in practice and in executive dogma, there is nothing left to the senate's confirmation authority. these inter-session appointments were supported by, as we've said, an office of legal counsel opinion that declared that the president has the unilateral discretion to determine that the senate is in recess. and unavailable to perform its device to consent functions. olc rests its conclusion on past opinions of attorneys general and its own office. historical practice that has been acquiesced in by congress and i quote here, the limited judicial authority that exists. it also rejects the

applicability of the senate's rule-making authority as upsetting the balance between the branchs. the olc exaggerates, however. the persuasiveness and the consistency and the relevance of past department of justice opinions respecting intra-session appointments as well as how far back in history they actually extend. indeed, as late as 1901, attorney general filander knox opined that only inter-session recesses were appropriate and that inter-session adjournments had never been deemed a constitutional recess by any of his predecessors. because of the wording of the recess clause limiting the power to the singular. that is the recess. and the fact that although allowing for intra-session

appointments would be convenient, it was not sufficient to overcome the constitutional requirement for senate confirmation. knox explained that even though congress might temporarily adjourn for months just as well as days and curtail the use of the power, the argument of convenience could not be omitted to obscure the true principle and distinctions ruling the point. knox also capriciously recognized that no supportable bright line could be drawn allowing presidents to invoke the recess clause only during recesses if the president could make a recess appointment during this 18-day recess that was there. he could see no reason why such an appointment could not be made during any intra-session adjournment from thursday or friday to the following monday. only one president in the first

132 years of the republic, the em battled andrew johnson in 1867, thought to make a recess appointment during a senate adjournment. intra-session recess appointment. the next one occurred in 1921 when the knox opinion was abandoned by attorney general harry dougherty to allow president harding to make one during a 28-day adjournment. dougherty incorrectly relied on a 1905 senate opinion which vehemently criticized teddy roosevelt's appointment of 161 officers of a mili-second. because of knox's opinion in 1901, the only thing roosevelt could do was to do an inter-session recess

appointment. he did that during the end of a special session in 1903 and the start of a -- the next session almost immediately thereafter. he did it at the banging of the gavel and he appointed 160 officials in that instant. two of them were quite controversial, which is why he did it. the committee that criticized that defined a recess as something real. not imaginary. something actual. the committee, of course, was not talking about intra-session recesses. which had been ruled unavailable just four years before. but dougherty ignored that and picked it up as a practical

construction, advising the president that the real question in such situations was whether the senate is in session so that it's advise could be obtained by the president. dougherty admitted in his opinion, that the president -- that line drawing, that there was a line drawing problem there. but he hurdled that by declaring that the president is vested with a large, though not unlimited, discretion to determine when there is a real and genuine recess making it impossible for him to receive the advice and consent of the senate. dougherty's opinion has become the touch stone for all department of justice opinions since then. but, still, only one more intra-session appointment was given until 1947. for a total of three in 150 years. and then until 1980, there were only a modest 54 intra-session

appointments. the big jump, and dramatic change, however, has come in the last decade, during the bush and clinton administrations when, as i mentioned, for the first time in history, intra-session recess appointments have exceeded inter-session appointments by a 5 to 1 ratio. if the olc opinion is accepted in practice as dogma, there is nothing left to the senate's confirmation authority. remarkably, and tellingly, i believe, the olc opinion avoids any mention what so ever or discussion of the appointments clause itself. or the framers' debates over the general power of appointment. those debates, however, were heated, contentious and revel

tor of the awareness of the importance of their decision as to how and where they were going to invest control over the appointing power. the recess clause, however, on the other hand, was adopted by a constitutional convention without debate, which strongly suggests that the framers thought that the clause would not affect the meticulously developed scheme of checks and balances of the general appointments process, which requires action by both the president and the senate to affect any appointment. this view is corroborated by alexander hamilton in his federalist paper number 67, when he deemed the recess appointment clause a supplement or an automobile accide auxiliary in nature. they voiced great disgust of the

negative and expressed a need for checks and balances to counter act the power of the president. over the course of their considerations, the delegates rejected attempts to vest the appointment power solely in the president or in the legislature. and, in the end, a compromise was reached that required the joint cooperation of both branchs to achieve the goals of responsibility and accountability. the finally-tuned 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 assent, 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 demarked and have long been under to be exclusive and

plenary. my conclusion about legal propriety of the president obama's proported intrasession recess appointments is straight forward and direct. the appointments were unconstitutional because there was no senate recess that is necessary for such actions. the president's unilateral determination that there was one did not make it so. the constitution vests in the senate the sole and unreviewable power to confirm or not to confirm a presidential nomination for principle officer of the united states. a decision to deny confirmation could be made for what may be perceived as a good reason, a bad reason, or not stated reason at all. the constitution also provides the senate with an unreviewable authority to determine the rules of its proceedings, which allows it to say whether it is a

constitutional recess or not, thus affording it a means of protecting itself against improper presidential intrusions. the recess clause, which recognizes the use of temporary appointing 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 user patient of the president's exclusive and plenary confirmation authority in violation of the framers' very carefully constructed scheme of checks and balances to prevent by one of the political branchs. thank you. [ applause ] g >> thank you very much, mort. our next speaker is doug kamick. he is the human rights law at

peperdine ephrine. he was previously the u.s. ambassador to the republic of malta. one of the reasons i was happy to have doug here is to show that this is not necessarily a partisan issue. doug was the assistant attorney general in charge of the office of legal counsel during the presidencys 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 in saint thomas moore professor of the catholic university of america in washington, d.c. and a professor in law and 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 law professors have to stand. >> law professors have to stand. good. >> okay. >> good afternoon. it's goat to be with you. having spent the last several years in the middle of the mediterranean, which is a nice, quite place. after you help the president get elected, you have to wonder what he's thinking when he sends you off to an island far away. 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, we had 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 cater ma

ran and showing up in niddle of a 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 -- 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.