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. 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 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 by 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 many years in the 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 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 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 t