>> thank you, so much for your testimonies. the people of china deserve better than what they're getting from the dictatorship. your husbands and you and the others like you, who are languishing in prison, are the future of china and we need to stand in solidarity with you and with them so thank you so much. the hearing is adjourned. mr. fu? >> one more point to bring the true change to china, i think it's very important for congress to work together to pass the global internet freedom act. i thank the leadership of congressman wolf for this. that will provide a tremendous efficient tool to break down this firewall in china. and certainly, it has improved

the chance for rapid democracy in china. thank you. >> as you know, mr. fu, that bill, the global internet freedom act, we hope to be marking it up soon in my subcommittee. it's an idea whose time has come. the enabling of high-tech -- to enable dictatorship to find, apprehend and incarcerate people of faith, the christians, the wig egers and to destroy dissident movements throughout the world calls out for this legislation so i hope to have this bill out of committee shortly so i thank you for bringing that up. i'd like to thank our distinguished witnesses aagain and without further a' dieu, the hearing is adjourned.

on "washington journal" tomorrow morning, the president of the business round table, john engler, looks at the president's speech to top ceos and tom zeller looks at america's poor and middle class and andrew weiss will discuss how the election of russian president vladimir putin will affect elections between the u.s. and russia. "washington journal" is live on c-span every day at 7:00 a.m. eastern. the conference continues tomorrow, live coverage starting at 8:35 a.m. eastern here on c-span3.

>> there's a real anxiety within a substantial part of black america when confronting black americans who are successful in the wider society because there's this anxiety that to be successful, especially if you're in a predominantly white setting, to get the backing of white people, to get the trust of white people, what do you have to do to get that backing? what did you have to do to get that trust? what did you have to do to get that recognition? there's this fear that one of the things you had to do was to betray in some form your communit community. >> the fist sunday of every month, book tv in-depth focuses on one author. speaking about race, politics and the obama administration. watch it online at the c-span library on your computer.

next, a discussion with constitutional law experts on the legalities of president obama's recess appointments earlier this year. two of the panelists argued that the appointments of richard cordray to be the financial prosection bureau director and three members to the nlrb were unconstitutional, while the two other legal experts say the president had no choice but to act and had every legal means under the constitution to do so. from the american enterprise institute, is the just under two hour hours. >> this session on whether the president's recess appointments were constitutional. i'm peter wallison, a senior fellow at the american enterprise institute. i will mediate the panel. the relevant sections of the constitution are up there on the

chart. we will be dealing mostly with article 2 section 2 clause 3 which says the presidential have the power to fill up all vacancies that may happen during the ves of the senate by granting commissions which shall expire at the end of their next session. there's a lot in this single sentence, it seems to me, 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 ves of the senate. this is quite limiting language and 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 3 cess appointments 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 the framers contemplated only one recess. if the framers really 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, then 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 were made after the senate had begun the second session of the 112th congress, the one that

was elected in 2010. the terms you will hear a lot about during the discussion are important. everyone agrees the constitution gives the president the power to make recess appointments that are intercession, that is between sessions. that's plain from the wording of the constitution. what is at issue in this case, is whether the president has the power to make recess appointment s intrasession, 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 president -- and presidents, especially modern presidents have simply done it and the senate has generally acquiesced. that's what president obama relied on when he made his recess appointments of richard

cordray as the director of the consumer financial protection bureau and three members of the national labor relations board. as you list.ed to the discussion, it's important to be aware of several facts. first, modern presidents have made hundreds of intrasession 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 cordray case, the question is whether the consumer financial protection bureau won't be able to function if the director was not properly appointed. the same thing is true of the nlrb, if it doesn't have a quorum, 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. if they win those cases, the agencies may not be able to act and their inter im interimactio actually be held to be invalid. fourth, an argument can be made that the senate has already

considered cordray 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 doesn't really apalestine this case. fifth. until these machine warecent ap the accommodation that seems to have been reached between the president and senate, that the president could make intrarecess appointments if the senate was out of session for an extended period. before these appointments, the shortest prior intrasession recess appointment was made when the senate had not been in session for 10 days. the obama recess appointments were made when the senate had

not been -- had been in an intrasession recess for only three days. the senate had set up a series 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 10 days. the democratic senate had adopted the same ploy to prevent intrasession recess appointments by president george w. bush and it had worked. he did not challenge it. but president obama has challenged this idea. a mumbai the justice department's office of legal council argue 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 sessions were sufficient to reduce the length of the senate's intrasession recess. but you should keep your eye on the ball, it seems to me. the constitution's language on appointments is the heart of the issue. it seems to give the senate an important role in all appointments. you can see it up on the screen over there. no one questions that the constitution gives the senate a majori majority, a major role in the appointments process. f that's true, then here's the keep in mind as you hear theday. if the president can make recess appointments whenever the senate is out of town, what is left of the senate's power to advice and consent?

now, here's the way that we will proceed in today's session. the first statement will be made by mort rosenberg, followed b doug, david rifgen and walter dellinger. after the formal presentation, i'll give the panel a chance to question one another and i'm sure we will see a spirited debate from that point. then we go on to questions of the audience. so keep track of things 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. all i have to do is find tepaper and i'll sit down.

>> what i want to say about mort, he is an expert and has been a good m appointments issue. he was a member of the congressional research service and he was there during one of the periods when the crs had its most important business dealing with appointments. that is during the watergate period for richard nixon. and 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's also served as consul don't

the oversight board and private counsel presenting briefs and 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 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 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 public service by the american bar association section of administrative law and regulatory practice. mort, the floor is yours.

>> thank you. i want to thank ai and peter and wayne abernathy for affording me this opportunity to share my views on this extraordinary important and constitutional issue with this knowledgeable audiences and very distinguished panel of legal scholars and practitioners. i feel the trepidation of a dissertation defense appellate court argument. 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 council memoed 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 theontinuation 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 faa bill, which allowed it to continue operating. both of those were deemed to be emergencies. those that had to be passed that were insisted upon by president obama and they were passed. the conceded purpose of the pro forma sessions 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 intercession, 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 waiting until the intrasession period began, the appointees can now ho 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 intercession period were done for political purposes, in an intrasession, which raises greater problems. however, what makes these appointments more significant and trouble iing is that they portend a very sharpest scallation of an ominous trend that has taken place in the last decade. during this period intrasession recess appointments, for the first time in our political history, have exceeded

intercession appointments by a dramatic 5-1 ratio. with the four obama appointment, the combined numbers for the bush and obama administrations is 171 intrasession appointments to 36 intercession appointments. if the ooc'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 intercession appointments were supported by, as we said, an office of legal council opinion that declared that the president has the unilateral discretion to determine that the senate is invest. and unavailable to perform its advice to consent functions.

thereby permitting the president to avoid the requirement of senate confirmation. they rest their conclusion on past opinions of attorney generals and its own office. historical practice that had 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 branches. the olc exaggerates, however, the pur swaysiveness and consistency and relevance of past department of justice opinions respect iing intrasessn appointments as well as how far back in history they actually extend. indeed, as late as 1901,

attorney gen reral knocks opine only intrasession recesses were appropriate and intrasession adjournments had never been deemed a constitutional recess by any of his recesses by limited the power to the singular, that is the recess, and although the fact allowing for intercession appointments would be convenient, it was not sufficient to overcome the constitutional requirement for senate confirmation. knox explained while congress may adjourn for months as well as days and curtail the use of the power, the argument of convenience could not be admitted to obscure the true principle and distinctions ruling the point. knox also appreciably recognized no constitutionally supportable bright line to 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 intrasession adjournment from thursday or friday to the following monday. only one president in the first 132 years of the republic, embattled andrew johnson, in 1867, thought to make a recess appointment during a senate adjournment. intrasession 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. doughty incorrectly relied on a

19-5 senate committee opinion which vehemently criticized teddy road svelt's appointment of 160 officers of a constructive ves of a millisecond. i should explain that. because of knox's opinion in 19-1, the only thing roosevelt could do was do an intrasession recess appointment. he did that during the end of a special session in 1903 and the start of a the next session almost immediately there after. he did it at the bang of the gavel. and he appointed 160 officials in that instant, two of whom 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 intrasession 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 the real question in such situations was whether the senate is in session so that its advice could be obtained by the president. dougherty admitted in his opinion that the preside president -- that line drawing -- 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 touchstone for all department of justice opinions since then. but, still, only one more intrasession appointment was given until 1947. for a total of three in 150 years. and that until 1980, there were only a modest 54 intrasession 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, intrasession recess appointments have exceeded intercession appointments by a 5-1 ratio. if the olc opinion is accepted and practiced as dogma, there is

nothing left to the senate's confirmation authority. remarkably, and tellingly, i believe, the olc opinion avoids any mention whatsoever or discussion of the appointments clause itself or the framer's debates over the general power of appointment. those debates, however, were heated, contentious and refusal -- revelatory of the perhaps of their decision how they would vest control over the appointing power. the recess clause, however, on the other hand, was adopted at a constitutional convention without debate which strongly suggests that the framers thought 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 senate to affect

any appointment. this view was corroborated by alexander hamilton in his federalist paper number 67, when he deemed the recess appointment clause a supplement or an auxiliary in nature. the debate records clearly show that the delegates voiced great distrust of the executive and expressed the need for checks and balances to counteract the power of the president. over the course of the 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 x-rayin cooperation of both branchs to achieve the goals of responsibility and accountability. the finally tuned scheme established by the framers provides three separate and distinct stages of appointments. the first is the nomination by

the president alone. the second is the senate's ascent 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 actor's prerogatives are carefully and clearly demarked and long been understood to be exclusive and my conclusion about the legal propriety of the president obama's purported intrasession recess appointments is straightforward 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 powers to confirm or not to