those administrations and leadership who do not. i know at least one person who served in the leadership of a democratic administration who questions any intra-session appointment of -- so that i think that these do not break down neatly upon partisan lines. 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 to -- that may happen, i'm sorry, it says that may happen during the recess of the senate. it doesn't say to occur and it doesn't say to exist, leading to one of the interpretive questions. but it does say the president shall have power to fill up 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 question is whether it was an adequate recess. in duration to justify the use of the recess appointment power. so let me begin by a formalist -- from a formalist point of view. i'm saying that there is nothing in the text that limits the duration of a recess that triggers the president's power of appointment. it has been a matter of accommodation that presidents have not exercised the process of appointment power when the senate was going to be quite promptly available to advise and consent a nomination.

but that is as a matter of 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 would suggest possibly self imposed limitation that presidents will not exercise their recess appointment power when there's no practical impediment to rather perambularomptly gaining advice and consent of the senate. is -- 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 they're 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 formal resolution that it 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 accommodation to decline the appointment power when his own resolution has made clear that it is not available and will not be available to advising on 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. 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 beyond which they went pro forma and to exercise business. but to some total of that, may clear that during this total of time, the senate is going ah be in series for a set of seconds

time every three days. that comes up to a matter of minutes by its own order, by its expressed statement. one distinguished commentator said we should look at what the senate said. what the senate said is it's not practically going to be i available. let me back up a bit to discuss the hard questions. what has happened to the recess appointment clause is that there are three positions that have been adopted by history that may be debatable, they may still be debated. but three positions that have been adopted historically that have made this power available.

that was a huge, interpretive step. the clause is actually solid as the two phrases that might have followed the phrase "may happen." it could have said may happen to occur. or it could have said may happen to exist. it said neither. it just said may happen. you figure it out.

the assumption was when they're drafting the appointments clause, that offices should be fillble without delay. and, indeed, for most of our history, let's pick the date of 1947 when substantial numbers of recess appointments start to be 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 when it says that the president should be able to fill them without delay, that's the mental context for having a full compliment of his officers available to him. and so that's number one. it applies, and always has, an interpretation to a vacancy that preexists the recess. the second big asuction was that it applied to inter-session

recesses that only last a millisecond. that, to me, is very debatable. that is the road that president obama did not choose. but i also think if it's much more constitutionblely questionable, even though history supports it. president theodore roosevelt made 160 recess appointments. and an inter-session that lasted a millisecond. bang, bang. >> i'm not sure it's a proper use when in a millisecond, the next session was going to be available.

so that was established. the third issue and the one that mort addresses is the question of whether the recess appointment clause applies to intra-session resayss, like, you know, this is the 112th congress. the custom now is first section, second session, each one lasting roughly a year. each starting on january third. now, i think the most persuasive arguments made against the validity of action such as those the president took recently would go to the question of whether there any valid intrasession recess appointments. at the end of not persuaded that there is any such limitation, i think the arguments are quite powerful. and one reason that they're not is that the whole notion of session is very vague in the constitution.

peter speaks about 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. so there could be multiple recesses that are inter-session within a single congress. and the vagueness of that means that 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. now, here was one problem with that that i think olc has 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 people can serve until the end of the next congress every night at midnight. and so that has been the problem i think for those overnight ones, you can find some textual insight from a provision of article one, section five, that i haven't seen cited in these debates. and that is the quorum requirement, a majority shall constitute a quorum of each house. and only two things you can do without a quorum. the few who were there can compel the attendance of the absent members. so i think that is one that that can't be a recess if it's not a quorum requirement is not applicable. so day-to-day would fall beneath the constitutional minimum.

but if the only reason why the recess would be invalid is an accommodation of the senate's advice and consent power if they're soon going to be available, why that three-day limit should imply that 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. i'm actually pretty persuaded by the 1905 senate report which is critical of theodore roosevelt when it says that the purpose of the appointments clause, they criticize the inter-session of milliseconds to make these 160 appointments. and they say it's evidence,

something actionable, not fictitious. they use the word as the mass of mankind. it means in our judgment, the period of time when the senate is not sitting in regular or extraordinary session as the branch of congress or in the session for the discharge of congress. when the chamber is empty, it cannot receive communications from the president or participate as a body in making appointments. its sole purpose was that at all times, there should be whether the senate was in session or not and officer for every officer entitled to discharge the duties there of at all times.

it's one that validates the pragmatic approach of asking if during what is indoes pietyblely a recess during which these appointments were made, whether it's a practical matter that chambers are going to be empty and the senate is not going to be available for the doing of business. and that was a situation that we were experiencing. it's as if you ask any american if anybody in the senate but one or two people have left and they're going all over the country and they're playing dodge ball and kick the can, are they on recess? most people say yeah, that sounds like recess to me. >> there is can kicking when they're in session, as well. so, you know, i think, in fact, what mort's points is before 1948, it was rare that we had

intersession recesses. there were 54 appointments in our history. and i'm sorry, you're right, intra-session. only 54 before 1980. president reagan took this up. he made 73 inter-session recess appointments. president george w. bush, 141. and, so far, president obama has made 26. but once we have -- the reason that they didn't exist before 1980 was that there was no need for intrasession. appointments by the president. because the senate acted within one, two or three days. so if there was a session, there was no -- the lack of availability of the senate. here -- and so one last point.

as a matter of accommodation, i am less troubled by using the recess appointment clause for a nomination 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 illegality would not change one way or another, that those would stand or fall together. but it's a potential matter. the reason would be that if the nomination has been before the senate the senator had it within his power to engage within the advice function. in fact, they chose not to do so. the senate has never had a called up and debated what advice to give the president on the nomination. a minority of the senate has prevented that item of business from becoming before the senate. but as the body has had it within his power to discuss that nomination and to give its

advice to the president who then with their consent could also appoint. but they haven't engaged in any formal way of the advice function of having the floor of the senate discuss and make the president aware of their views of the advisability or lack of the advisability. they have not chosen to agenda that item. so far from seeing this as an end run around the senate, it seems to me that the notion that began in 2007, with democrats, for the first teem in our history, are thinking that a substantial recess, like this december 17th, the january 23rd recess, this substantial recess could be broken up into a series of many recesses by having these millisecond sessions every three days. that new idea is one which was intended to invade the presidents. the response dblty and the framers gave the president to make sure that all officers were filled without delay. i do not suggest that we second guess the determination.

it is what it is. every three days, have a pro forma session. it said that no business is being conducted, but twice they have because with unanimous consent, they can. but that's not the question. they're in recess. the question is is this a bract hcl situation? >>. >> thank you. [ applause ] >> 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 an article 2 person. i've been counseled 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 that there's no question that the senate is supposed to have some important role in the appointment of the

maj major offices of the government. and what i cannot get over is what way can the senate protect that hour if holding pro forma sessions, of three days, was not sufficient, then what protection does the senate have for that power? the president can make a recess appointment whenever the senate floor is empty with the possible exception of an overnight for the reasons you suggested, walter. 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 the senate protect itself, protect that constitutional power? what suggests would you have? >> number one, they could choose not to adjourn. ever.

>> now, it already has established by the theodore roosevelt proposal that between every session, the president can make a whole bunch of recess appointments. secondly, the assumption is the president should have some role when the president can make appointments during a recess. but it simply doesn't. you may criticize that as a part of the constitution. but it doesn't have a role because they thought it's important. arlt the senate is going to be able to advise on every nomination, in which case they should have to be continually in session, or the president be given the authority to appoint officers when they're not in session. and he has that authority. now, remember, it's not the same as the power that comes with advice and consent. with advice and consent, you can serve for the rest of your life. in an executive branch appoint. francis perkins served through four presidential

administrations. if alive, she'd be serving today on the basis of one confirmat n confirmation. so they were not necessarily thinking that those appointed to offices would be necessarily changing every time there was a presidential election, as has become our custom even when it's the same party. they may have assumed that someone appointed to an office would serve forever. so the recess appointment was truly seen as something more temporary. before you had the entitlement to serve for the rest of your life, you needed advice and consent. >> let me just follow that up. 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 participate. >> i would make one suggestion. the senate should tell -- the senate of every political persuasion should tell -- we think this is a proper accommodation.

you should not make a recess appointment, even in a session -- an intersession as long as ten days where it's been fairly well established by practice, you can do that. you should not do that unless you have first given us 60 days to advise and consent to the nomination. >> and if he ignores that? >> we haven't brought it up, we haven't debated it, we haven't voted it up or down, then you can go ahead. but don't evade the process of advice by making an appointment where we have had no opportunity to give you our considered judgment. >> if i may in the last few minutes, written the constitution in several important respects. maybe it's a good idea as a man of political science to strike a kind of bargain, but it would utterly violate the constitutional text. the senate was not a constitutionally meaningful recess. what you have done at the very front end is you've defined the word recess for yourself. let's be clear about something.

the framers absolutely expected -- and i said it early on in my remarks -- the framers' approach to checks and balances allows each branch to check mate another. the framers fully expected, with all due respect to doug and the need for energy and the need to execute the law, the framers expected that the senate may be able to block, permanently block the president. and the price they'll pay for it, ladies and gentlemen, is a political price. there are no shortcuts. but let's look at the constitutional language. and, by the way, to answer peter's question, there's no way for the senate to protect its powers. back to the cat and mouse game, no matter how they try to organize themselves, a willful president under a functionalist approach that would confuse the two issues, which i think walter confuses. inability to provide consent and unwillingness to provide consent. the inability is one thing. the inability has objective standards. unwillingness is not.

and the senate can reject a president's nominee either by holding up a down vote or fi filibustering the vote or doing absolutely nothing. why do we know that? because under article one, all branchs are both houses are congress are able to organize themselves as they see fit. with two exceptions only. one is article 4 section 4, which is very significant. that's where three days come from. because you want to ensure that neither branch is able yo unilaterally to interrupt the flow of legislative business, which includes in the senate's case campus advice and consent. i've not heard anybody mention that gives the president's only

constitutionally permissible tool to impact how congress organizes itself, as far as separations. and what does it say? on an extraordinary caution in both houses and either of them and a case of disagreement with respect to a time of adjournment can we adjourn them. that is the only way two branchs disagree about adjournment and i can get into why there's not the case here and the senate could not because of a filibuster pass their resolution. that's the only way in which the president can force a recess. and pay a political price because it would be a very clear tool. so the 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, mort has excellent discussion about what happened on committee of detail and how it is voted upon. i'm not going to belabor that. the senate is totally, totally bereft of any power. but not just that, i mean, i'm

not hearing anybody address my point. if you allow, according to the branch, the executive to pass judgments on whether or not congress properly legislated, you have completely upset the balance relative of legislature. >> i'll tell you again how. the senate votes very rarely. lots and lots of senate's business is done, without a quorum, but unanimous consent. and by the way, in terms of availability, the laborists and not to act as if i'm a great expert on the senate procedure, but i have went and talked to people. the reason they have two members, ladies and gentlemen, in pro forma sessions is because one member in a pro forma session can do anything, including confirming somebody to be a supreme court justice without any hearings. but to tell the legislative power can be exercise d you can

do anything. let's face it, the senate doesn't work very hard. so if you're going to take the position that their unavailability or let's redefine, the unwillingness to give a president what he wants triggers recess appointments, we're going to have recess appointments all over the place and the president can control the entire flow of ledge shrilledive bis. that cannot be. a couple of points. first of all, the senate itself has conceded that this is a recess. the senate has conceded in numerous ways from the trivial point that they define recess on their own web site in the way in which we've been using this terminology. second, the comptroller general, since 1948, has aq we e aq wa e

acquiesced. 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 between being faithly 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 loved it because it's the same frank capraesqe kind of thing that brings me back to washington all the time. you can reason together and set out 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 hearings. you know?

they got them done in one, two and three days in the 1920s, '30s, '40s and '50s. there's no reason that they 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 skipped the process that's outlined in the constitution. >> if you want me to respond to that, i would just say -- i would just say this. and that is that 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 intra-session nominations, but they want to go away for the christmas holidays. leaves the senate open, as far as i can