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 dispersed powers into a workable government. it enjoins upon its branchs separateness, but interdependence, autonomy, but reciprocity. as with the late edward levy, robert jackson believed that the branchs of government were not designed to be at war with one another. the relationship was not to be an adversarial one. so, in that sense, mort, you and i are equally concerned about what we see happening between

the president and the congress. but i have to say that my conclusion is much different than yours as to where the source of the provouchation is. if one steps back, he has one essential obligation, to take care that the laws are faithfully exculted. well, that obligation is a constitutional obligation. and that obligation requires, of course, that he be given some help. peter is here looking very pensively. you know, i can recall those wonderful days during the reagan administration 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 is that i think the people of the united states, if they were

quizzed about the meaning of those provisions, would say oh, we 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 office -- 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 of the time. joseph story said, look, there's really only two choices here. either the senate is 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 -- being able to take advantage of the recess appointments clause for purposes of getting some help to take care that the laws are faithfully executed. and the notion that somehow that provision in article 2, section

2, clause 3 can be defeated by a pro forma session, a pro forma session where, like, fraternity boys, the democrat -- i mean the republicans are now racing each other to see how -- how little time they can spend in getting it accomplished? where, in fact, they provide because they're all off in some other far away place with the exception of one or two of them, that no business will be conducted. this is the american enterprise institute. the underscore is "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 counsel, my successors 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, which is the most comprehensive treatment of the recess appointments 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 dod frank bill, which i suspect most people in this room find enoath ma, but never the less 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 old -- 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 m may mayoralty of new york that, quite frayingly, the language in federalist 67 is language that is quite appropriate to modern time. these times of adversity. these times of excess partisanship. hamilton says at the end, i have taken pains to select the instance of misrepresentation and to place it in a clear and strong light as an uneh kiev cable truth of 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 advanced 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 council 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 stevens did decent from the denial of the case dealing with the recess appointment of the wonderful william prior 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 a great difficulty, however, with recess appointments of the judiciary. and i think justice stevens 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 activity that one might think after, you know, prior to baker versus carr and so forth, might have been a political question. it 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 arguments that the eminent scholar mor mort rosenburg provided for us.

but if i heard most of those arguments, they amounted to a sort of bafflement on mr. rosenburg's part as to why there were so few of these intersessions early on. the reason was is 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, who's done 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 that is. america, where no business is

done and we do it faster and better than anyone else. that's not -- that's not the standard of the constitution that the office of legal counsel seeks to advance. it's not the one that i venture to say you and i want to advance, either. we may not like the dod frank bill. we may think that it incouple behrs the securities market, 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, mort, for the lack of intra-session appointment. and that was because the initial years were spent trying to figure out which vacancies were covered. those that existed prior to

the -- 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 that every attorney general that has examined this, and every office of legal counsel that has examined this has, indeed, concluded that intra-session practices have, by virtue of tradition if nothing else, and tradition counts for a lot with article two because it is so less defined than article 1 has become the standard by which the president can exercise his authority. i see that the counsel to the president is looking upon his watch most fervently 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 -- 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 in an efficient and effective fashion to advance the rule of law. both interests are important. our founding generation was as repelled 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 confederation in a very large way. thank you very much. [ applause ] >> our next speaker, among these distinguished counsels on the panel is david rifkin. david is a member of the baker litigation international and environmental groups and co-chairs the firm's appellate and major motions team. he has extensive experience and constitutional administrative and international litigation from 1992 to 1993, he was associate executive director and general counsel of the president's counsel on competitiveness, while at the white house, he was responsible for the review, analysis and legal issues related to the

regulatory review conducted by the counsel. he's also served as associate general counsel at the united states dpt of energy from 1990 to 1991 and played a significant role in developing the reagan and bush administrations affecting natural gas and electric utility industries. david, the floor is yours. >> thank you. thank you to peter and thank you to a&i for putting this on and giving me an opportunity to visit and see a few old friends. to dispel any lingering doubt, i thank mort and i thank peter. i think that these reports are unconstitutional for the simple fact that the senate was open business and there was already a recess. i was planning on spending some pressing you with vigor and talk a little bit about the framers' design, but mort has done that and i see we have a couple of

relevant quotationings. so let me grab the bull by the horn and launch into what i consider the more important part of the discussion of this issue. but i cannot help to make a small rejoinders to my good colleague by pointing out that the framers, in their typical fashion, adopted an overall scheme for the appointment of executive -- principle executive officers. a typical style of checks and balances where one branch can stalemate each other and respect the overarching goal of the constitution is diffusion of power and there are circumstances where nothing gets done. framers anticipated that. when nothing gets done, that's not an excuse for the president to resort to shelf help. now, the framers assumed, rightly at the time, that congress would convene for only part of a year and there would be long stretches of time, rage, when the senate would be

unable -- not unwilling, but unable to participate. their solution was to allow the president to make temporary recess appointments, to enable individuals chosen that fashion to serve up to two years until they the end of congress' next session. and this would give the senate, when it comes back, time to consider deferring them or not as actual nominees for the offices. of which they were chosen. now, we all heard about the fact that this authority was, at first, sparingly used, this authority being recess appointments became quite more frequent in resent times as by partisan and a way of working around the senate's opposition to appointments that are considered to be politically controversial. now, let me be very clear. all of 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 or share his vision, indeed, denying the present opportunity to populate the executive branch with people who share his vision and particularly doing so about bothering to vote on them makes the president's life difficult and occasions a confrontation between political branchs. but, here, again, i have a point. confrontation between the two politic political branchs, while not to be taken lightly, is something that was expected. in any case, even congress' most unwise constructionism does not provide the president to display the constitution. and that's why, no matter what the acrimony up until january 4, the president's lawyers always told him that the recess appointment can only be constitutionally exercised when the senate is in recess. now, we heard that a

constitution does not define the recess, however, in the 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 and served. this is particularly the case, ladies and gentlemen, because the constitution also provides one of a few constitutionally anchored limitations on how congress, otherwise in article one, can organize its affairs. that neither house or congress can adjourn for more than three days. all of that done which most certainly concludes the senate's exercise of its con for maciol. it cannot be unilaterally interrupted. the senate can hardly be in absence of such agreements. now we heard itchly caution that there's some bad order to pro forma sessions.

it was practiced during the george w. bush administration. and let's stipulate the senate has used motions on its unaccord or at the request of a house to block recess appointments by staying in session on a pro forma basis. now, let's be clear about what those sessions do. they're pro forma, but only in a sense that not in a sense, excuse me, but the senate is incapable of conducting business, albeit on the basis of agreements and legislative measures can and only be adopted by unanimous consent on an actual vote. the problem, ladies and gentlemen, with presenting this is a a remarkable situation. the business is transacted without a quorum by unanimous consent. and that was exactly the situation that president obama

made his appointments on january 4. now we've heard already from mort, the senate which was controlled by the president's own party, was fully capable on january 4th. capable. and that's the keyword. not that it did something, but capable of performing both legislative and advising consent function. and how do we know that? we know that because the senate, operating in exactly the same pro forma rules, in january, as it did in december, passed the president, obama's highest legislative tor think. by the way, if a senate was not in session at the time it did it, it was in recess. but the vote on the bill was defective. now, president obama, of course, rejects this view. in effect, the president is claiming an open-ended and rather eclectic authority to determine then the senate is recessed. this is an astonishing and unprecedented prerogative.

>> the most obvious impact would be actions taken by the new appointees. i think that president obama and the agencies he claims to be concerned about. i think the individuals warp impacted by their decisions will take them to court and those challenges are already underway. there will be massive regulatory uncertainty and under the teaching of a new process. the supreme court will overturn the alrb decisions and will do likewise with some of their additional decisions. frankly, that concerns me less than the constitutional implications. what the obama administration has done, really seriously warps the separation of powers and key congressional prerogatives in

several ways. the first one is the right of congress to determine the rules of its proceedings, which is very clearly spi lly spelled ou article one. the president's function approach strips the power from congress and determine for itself. now, why is that such a big deal? what it would do is shift the balance of power. we know that the president participates in a legislative business, but his power is not an absolute one. president vetoes have been overridden, certainly can be overridden. but under the functionalist approach, the president would be able to disregard without even bothering to veto that congress is properly enacted. well, the president can say that the senate really was not transacting morning business in the morning. quorum was not there, no vote was taken. so i knew legislation was passed at the quorum of the senate.

and this is how most of the senate business is done. there's no limiting principle here. no fundamental distinction between the normal business and most pro forma sessions. the statute was unlawful. could be disregarded with impunity and future presidents could fill their administration with numerous officials. they might not have bothered to seek senate's advice and consent, as president obama did with the two commissioners. this, of course, would again dramatically alter the balance of power by preventing the senate, god for bid, from blocking the very people they wanted to block, which, again, they have absolute constitutional right to do so. and that would enable to president to exercise the very power that the framers, the committee of detail rejected granting the president. now, an area that would undergo dramatic change is the use of a pocket veto. as we know, the constitution provides that a bill passed by

congress but not signed by the president becomes law within ten days, sundays excepted after it shall be presented to him. and, also, further indicates that if congress, by the adjournment prevents the return, in that case, it shall not be a law. if the president can decide for himself, he can pocket veto lots of legislation he doesn't like without bothering to cast an actual veto and paint a political price for it. the second obvious casualty of this term of affairs is congress' right to determine for itself what is recessed. as of january 4, that term has a new meeting. congress is recessed and the president says it's so. and i can envision, frankly, and i don't think i'm being too cynical, an analyst cat and mouse game with the legislature adopting different models of its operations and the president is saying that's not good enough. and in that regard, while the january 6 oc opinion

acknowledges that the senate, by continuous operations, can prevent the president from exercising his appointment powers, he never bothers to define the continuous operations. for example, the senators have been on the floor for 24/7 or their attendance would suffice to pass the president's exacting scrutiny. and here's another not all together fanciful boldly claimed power to determine what motives and operations is sufficient to avoid a recess. why couldn't he do otherwise in ascertaining what a given member of the senate is filibuster. you can see the president taking the position that the senator is a prereck way cyst. in that case, none of the filibusters would last. third casualty of this president is the power of its chamber, which i already mentioned, to prevent the other from

adjourning for more than three days while a consent, which is an important bargaining chip, which is used in dealing with each other, again, one of a very few textually anchored restrictions on how congress otherwise can organize its operations that it sees fit. now, its annulty makes absolutely no difference. now, the oc opinion, mort already described, doesn't atrekked to wrestle with the broad implications of separation of powers of its claim. and the recess has occurred. instead, it sort of proceeds, to me, a rather flawed process that a senate practice of using pro forma session is invalid because it impedes the president's pow tore make recess appointments. that, ladies and gentlemen, is an utterly bizarre claim. the constitution allows the president to make recess appointment only when the senate is in recess. it doesn't guarantee him the power to make any such appointments or even one to accept the senate is in session

continuously of an intra-session. the recess appointment powers never comes into play. now, let me close by saying that i'm reasonably confident. we can discuss that a bit more. that the courts will strike this down. the courts not to do so would greatly weaken knot just congressional authority, but diminish individual liberty that depends for its ultimate preservation on separation of power and well functioning system of checks and balances. unfortunately, a great deal of them, and i would say again as an article 2 person, the consequences given in the process of curving president obama's unlawful power grab. the court may write an opinion and it might weaken executive authority in other, more congenial circumstances and, unfortuna unfortunately, that's the price one pays for acteding unconstitutionally. and even more unfortunately, the price paid by the institution of

presidency. [ applause ] >> thank you vower much, david. okay, our final speaker is walter dellinger. he heads the harvard supreme court and appellate practice clinic and is a visiting professor of law at harvard university. after serving in early 1993 as an advisor to the president on constitutional issues, mr. devlinger was nominated by the president to be assistant attorney general. he was confirmed by the senate in october, 1993. 24 this was not a recess appointment, apparently, and was also head of the office of legal council. walter was then the acting solicitor general from 1996 to 1997 term of the u.s. supreme court. he's published articles for

journals, including the yale law review and his written for the new york times, washington times, news week, and the london times. walter, the floor is yours. >> thank you so much, peter. and thanks to the american enterprise institute for putting together such a thor reexplication of this issue. it is really extraordinary that such a simple clause could provoke such complexity of argumentation. and i'll come to that simple clause in a moment. let me echo what peter has said that this is -- this does not break out on partisan lines. there are -- i am comforted that there those who have served in leadership of the office of legal counsel during the presidency, president reagan, president george h.w. bush and president george bush who believes that thew appointments are constitutionally valid. the