2014] >> the situation doesn't bother me, access bothers me. i had access to the information before. d.n.a. felt that the ow is from booz allen. we gave them too -- are we giving too much power to rporations to have the information? >> i was just handed a question from brandon andrews that says "do you think americans feel safer with information in the hands of private agencies or the u.s. government, and if so, why?" i throw that to any of the panelists. >> let me begin with that. as one of the a. tickets one of the administration's consumer privacy bill of rights, i certainly would like to progress

ove forward on that. we do have a sig consultant issue with the private sector. i think maybe now we can put some of this in the past.

we can't put all of it in the past. there are a lot of other documents out there that will have the report next week, and other things that will continue this discussion. at least we may have reached a point of deflection. ?ow do we manage that selection how do we ensure that that is appropriately protected that meets expectations and ensures that our choices that people want to make in their lives on't get affected.

>> are you safer at fort meade or are you safer at target? >> i think the answer to the question is you are a lot safer at fort meade in what matters to ost americans. unless the congress of the united states is prepared to enhance the career resources, most of these will be out-sourced to contractors. we will see more and more security evaluations and more and more data collection handling in the hands of contractors. i think if there is one lesson from eric snowden, that is a mistake. that is a really big mistake.

how did a junior officer find a way to download the top intelligence community information and nobody in the office seems to notice he is doing this? the congress us should have long ago called up boos allen and asked them those questions and made them answer them. unfortunately, i think congress is part of that contractual world, too. when congressmen and senators move on, where do they move on to? he board of directors. >> so the speech was mainly in

reaction to snowden. do you see the speech having an impact in terms of giving the u.s. government a higher moral ground on this debate or do you see it being likely in the long-term? do you have thoughts on that? >> i do. i think probably the u.s. is moving away from basing it on moral authority in this particular regard. what i think the speech will do, least in the context of internet use and international issues is provide a basis on which the government can now proactively stop engaging in a way that it felt prohibited

efore. there is enough in the speech that allows other governments to engage with the u.s. in a way that they can self-act to their own public. i think how that actually translates into outcomes depends takes the administration it happens in england the u.s. has an enormous scale when it comes to the internet debates, for example. the values on which the internet has been built and driven the success of the global internet sort of opened the freedom of a multistake holder is far more attractive to people in

countries around the world than the more authoratarian model of government with lots of overnment regulations. but i think people have been stepping back from the united tates because of snowden and hopefully the dialogue will open up willing a coalition around taking a step forward. >> i agree with what ian said. attempting to answer the request gives more moral authority. the greatness of america lies not in being more enlightened but in our ability to repair her aults.

i think in this discussion, now you need to set procedures that create better transparancy that the president has established a model that really puts it to other countries around the world. i think he was quite pointed about that. certainly one of the effects of the snowden disclosures and i think has tempered some of the international outrage is that the press in other countries has been asking the question, looking at some of the snowden documents to find those answers, what are our countries doing? what are our governments doing? and so certainly a number of countries have had disclosures about their own activities that to look, and namely brazil. that is enormously helpful in

the discussion of norms and governments. you know, de la rusa said at the u.n., we need a system of multilevel governments. it happened. it just happens to be a nongovernmental one. many countries would like to put this under government control that is more respectful of government interests, more respectful of borders. this helps, i think, to move the discussion back to a better model of governance. >> i would like to gently disagree. i think it is worth drawing as sharp a line as possible, and it is not really possible, between the internet questions which do

rely in a profound way on moral authority and espionage, which is a deeply moral exercise in which we pretend to be outraged about the things that are done to us and pretend great moral outrage lies behind our pabblet ability to do it to the other guy. i think at the end of the day, there is a lot of feigned anger as well as some real anger. i don't believe that the loss of moral authority in the espionage space was ever quite that great. and i actually don't think that this will do much to restore it. again, braketting the internet side, which can be hard to braket, the reality is a whole bunch of stuff got found out

that is embarrassing to us and not ad van tageous for us to have out there. that is not fundamentally a moral issue, it is fundamentally an embarrassment and unpleasantness and diplomatic ram fantastics and business ramifications issue. you had a question, sir? > tom curry with nbc news. when tom kerry spoke, he drew a recommendation that the panel made that he said hpt gotten really any notice at all, and that is to expand n.s.a. authority and give it emergency power when a terrorist suspect who has been under surveillance outside the united states enters the united states for the first 72 hours and gives n.s.a. authority to track that person. did the president address that? and how significant is that?

>> so the president didn't address it. i think you can assume that the reason is, if you are giving a speech about, you know, imposing -- by the way, asking for new authority in the context of that speech is disonan with the larger message, as it is in fact disonant with he larger review report, there is a group of news reports from n.s.a. that suggests that the problem of what are called roamers, who are people of legitimate subjects of intelligence collection overseas, and you wake up one morning and you find out they are in cleveland, and all of a sudden the intelligence and collections are illegal. and what we do, is we shut them off and those show up asclines issues in the u.s. it is a fairly complon cause of

compliance problems. so one possible way to think about that is to say, well, ok, there is no problem. when it turns out that that surveillance is illegal, we shut it off and notify the f.b.i. the other way to think about it is there is huge problems and the n.s.a. is behaving illegally and they are doing all this illegal surveillance, which is the way the press has covered it. they capped it as illegal surveillance. the other way to think about it is, hey, it is a security problem. we are turning off legitimate argets of oferse collection. the review group took that position toward it, and i think rightly, and i suspect the president will not talk about this much publicly, but if you look at it, i wouldn't be at all

surprised to see the house intelligence committee take a look at that recommendation. >> would that require legislation? >> yes. >> we have a couple questions that came in over the transem. which are the most serious recommendations that the president didn't mention? ian these go to sort of the moulten core of what you were talking about. what is the most significant thing in the internet governance indescription -- incryption space that the president didn't say and what do you think he should say about it? >> i actually think we have good cryption.n the en i think that may be why neither are the panel nor the president got into that space.

where i think he did engage on a whole group of issues is on the future and the structure of the .s.a. and we have potentially an opportunity with general alexander moving on to do a number of structurally different hings. either to split the n.s.a. and give it a more implicitly intelligence function taking away the military use. you could, in support of the detante, ernational you could take the n.s.a. out of review -- >> and there is a separation of information assurance. >> absolutely.

and i think what you have in the speech with the popt saying this would have a short and medium-term operational impact which i'm not willing to take, but i don't think the presentational advantages of that are necessary given the other things that i'm doing. it remains to be seen. if you think this is basically an endorsement of a number of arrangements to modify key constituents, we will have to constituencies respond to that, but i think they will find that they need to move a little closer to where -- he needs to more closer to where they are. >> how significant are the reforms that the president proposed to the f.i.t.s., the

foreign intelligence surveillance courts? i can answer that. f.i.t.c. s that the should reform, and that is significant reform to the metta-data program, and depending on how much it brings down the requests, it is actually a significant workload t.c. to the f.i. l a former judge wrote this week that the review courts are a massive work loid load burden, and some of them you shouldn't give us, and f some of them if you give us requires a lot more

judges. so the team is relatively small. it is -- there is an institutional impact there. the more significant impact, the president endorsed a public impact before the f.i.t.c. he was intentionally vague about what he was endorsing. there are two basic visions of what a public advocate could be. one is to give the f.i.s.c. the authority to appoint amicus when it argues against the government when it feels it needs an adversary briefing. they want the judges in control of that. the more expansive vision, which has been in some of the legislative proposals as well as n in some of the review group, s in having a -- basically a

standing office of public advocationy to get them to intervene when it wants to. the president said rewards can be sort of read to leave that question up in the air, and i think that's one of the things he's punted to congress basically, how significant it is institutionly is largely a function of what congress does with that. >> mathy perez, competitive price institute. there has been a lot of discussion about how this -- congress doesn't seeve a lot information about intelligence agencies, that they are very object secure.

what is left -- >> does anyone have thoughts on that? >> i will take a shot at it. >> congress has said if you don't answer the question in the right way, you get a misleading report. secret intelligence agencies collect secrets to have a secret, not to give them away. the congress of the united states has not established a track record on very sensitive secrets that leads anyone to a great deal of confidence, other than to see if they can maintain that secret. strong bases in pakistan is it one example.

i think one of the things the president has done here, by endorsing the n.s.a., biby -- ing him the 21st century by he says we have new documentation that says that is legal. and we're going to tell you what we're doing. the problem of getting agencies to answer the question, even if the question isn't rightly phrased, is usually, not always, but usually, been a bigger problem with the sfraltbs -- intelligence agency than the national security agency, because national security l programs are, for the most part, ones that can be articulated to congress fairly simply, whereas a lot of c.i.a., especially covert action programs, there are elements of it which are if g to be at risk,

misinterpreted or loose lips put them out thrt there in the public domain. >> mike nelson with microsoft. one of the things you haven't talked about is the president's promise to have a high-level group led by john podesta looking at big data. i'm curious what two or three questions would you hope that group would try to answer? and do you think within the year we'll have another obama speech on the broader question of big data and privacy and will we have a brookings panel on that speech? >> on second thought -- >> we have had many panels on that subject, and i'm sure we will have more. does anybody have thoughts -- cam -- on this? >> well, i'm very interested in that inquiry.

it is frankly not clear either from the d.b.d. or from the speech exactly what the scope of that inquiry is going to be. it is apparently a short timeline to address those issues. this is important to have on the government side and the private ide. we are at a stage in this world where we can't focus on the issue of collection. it is going to take place in ways that are beyond all of our conception today. and as you know, it is expanding at an enormous rate. i think on both the government

side and the private side, we can't just say, stop the ollection. we can't just disregard data that's available. replays we areth dealing with in baseball. it would be nice to say we want to disregard the information that's available. but there are going to be times when you wish you had access to t. there are enormous gains, enormous risks, and we need to focus on how we manage that data. we h certainly had a discussion with the president on that dodd, and i want to see the discussion move forward on the consumer side as well. >> we have time for one more round. why don't we take questions, and just we will go down the panel for final thoughts.

so if people have questions, let's get them out on the record now. >> hi. my name is anwar. i'm a student. throughout the years we have groups of color and muslims, do we see moaching forward -- moving forward, do we production of racial profiling reduction moving forward? >> ok. one over here. oms thomas stephenson. i'm also a student. would cyber-command take over the -- like if the n.s.a. was removed from military operations?

>> ok. anybody else? fore we close the question floor? n a brief wrap-up. >> one role of the n.s.a. is to look after the security of the deprks o.d. networks. the other two being commanders, and the third, which is somewhat difficult and challenging is to defend the nation. so do they have that responsibility? i think the challenge that would arise from splitting the two is at a lot of the intelligence that cyber-command needs to do its work comes from the n.s.a. side, and splitting the two out would be highly inefficient. that inefficiency would be worthwhile in the long run but

in the short term i think the judgment is -- the benefits do not justify that inefficiency. general sort of wrap-up comments, i think what's not being commented on too much, is one of the interesting aspects of the speech is president obama directly confronting the international aspects. so when you have the d.n.i. sitting in front of congress saying this is only affecting american citizens, however factually accurate that might be, over six billion people rpped the world say, i'm not one f those. the way the president came out and directly confronted these issues is helpful in taking us

forward. >> so on the question of profiling, one of the principles that the presidential polling directive has made explicit and made universal is that the united states shall not collect signals intelligence for disadvantaging persons based on their race, gender, sexual rientation, or religion. i think that, along with many of the other things here, i go to the point that we have here, the president speaking out on these issues. when the study disclosures comes up, the president said he wanted to have a national and global conversation about national security. it is a conversation he wanted to be engaged in as reflected in

the choice of a review board, people that are very trusted by the president. he has not endorsed all those programs, but he has certainly taken that on board as a vigorous conversation, and i think that can be a tipping point to move forward in some very substantive ways on the broad set of issues we have here. >> i think one of the contributions the president has made here today is this image of he out-of-control or rogue national security agency. i think that's an important step. the two things i'm looking seeing next, one,

what happens when there is another terrorist incident, like a repeat of boston or something like that, has been rightly put down. the president acknowledged that. i think he's acutely aware of this. he has been very lucky for five years. very lucky. his luck is the going to go on forever and ever, and our luck collectively isn't going to go on forever and ever. then the question is, why are we wasting time going to courts when we know there are terrorists? that is a matter of time. the other thing i'm going to be looking for is what's the next oe to drop from the edward snowden apparatus. what are we going to hear from his network of supporters? in the course of his revelations so far, there has been a patter of orchestration that has been quite interesting. you know, you get a leak about germany, just when we are about to go to germany. you get a leak about brazil just when the brazilians are about to

come here. i think he tried to get the similar effect. i don't think he got much of a bounce. and the question is, we will see, is it really edward snowden doing this, or is it a larger apparatus. i know many people in the community who are looking at this issue now no longer regard edward snowden ads -- as a thief or traitor or those things, they regard him as a defector who has gone over to another foreign intelligence agency. that's a good question, that we don't have a good handle on. let's see what comes next out of moscow. >> i very much agree that a lot of the next few months will be conditioned by additional disclosures. have we reached the point where each additional disclosure has less and less impact on the debate?

in which case, i think you could really imagine this presidential speech combined with a certain apathy in congress or a lethargy in congress beginning to be the set of tail end of this scandals or possibilities. the other question is that, the disclosures continue, and they maintain a certain fevered pitch both the egments of conservative and liberal bases that really condition the congressional politics and keep can be ve in a way that very unpredictable and i think sort of dangerous, if what you're trying to do is bring stability to our understanding of what authorities will and

won't exist, should and shouldn't exist, and what should be written in law, what should be policy, what should be fluid, nd what should be fixed? finally, and i will close here, the other big factor is the fact that the patriot act authorities, including section 215, do sunset in a little less than 18 months. so in the short term, if congress doesn't do something, what happens is the president maintains all the authority that vis-a-vis ncluding 215 subject to whatever additional constraints he puts on himself, some of which he did today. but in the longer term, and the longer term really isn't that long, that default switches. and if congress doesn't do something, the 215 authority

actually goes away in, i believe, may of 2502015. so one of the questions, i think we'll leave it here, is do the politics settle enough that you could have a congressional enactment that says, this is the portion of this program that we ,ill endorse beyond may of 2015 and does the review group recommendation as articulated by the president today embraced sort of by the president today provide a formula for that longer term stability or not? the picture strikes me as very different if you think that that recommendation and the president's discussion of it today provides a basis for settlement of that issue than if you believe it doesn't. thank you very much for coming, and come back. [applause]

reactsor james bamford to president obama speech. we will be looking for your calls, tweets, and e-mails on the issue live at 7 a.m. eastern on c-span. yes, internet service dividers are gatekeepers, and they are two-sided networks or two-sided gatekeepers. there is someone on one side and on the other side. the situation is similar to the credit card industry. andll have credit cards,

then there is the credit card company and on the other side there is the restaurant. it is useful for restaurants that will have credit cards and it is useful for us that all the restaurants will take them. it is not so useful if the gatekeeper says some of these restaurants we are not going to allow them to participate in the system. translating that to the present, if the internet service provider were to say, not all people that theiring the content on computers, we do not want all of them to be able to have access to all of the users. that is a problem if the gatekeeper behaves that way. >> this weekend, a look at the impact of the d c circuit court ruling on broadband and high- speed internet regulation. saturday morning at 10 a.m. eastern on cspan3. -- cspan. p.m.day at 3:30

emancipation, reconstruction, and race. atlanta after the civil war. saturday at 11. >> the u.s. supreme court heard in oral argument on the recess appointment powers. court isse, the considering the history, meaning, and language of the constitution to reset the appointment clause. at issue is whether president obama overstepped his authority by making appointments to the national labor relations board during the elected pro forma session of the senate and considering when presidents can fill federal vacancies without the senate's advice and consent function. this is an hour and a half.

>> this would repudiate the legitimacy of thousands of appointments going back to george washington and going forward would diminish presidential authority in a way that is at odds with the constitutional establishment that the framers have established. the case -- this would be needed to strip presidents of their authority to make appointments and to field pre-existing vacancies. >> you see that it would repudiate the constitutionality of appointments. you do not suggest that the actions with be invalid going back how far you want to go back. >> i do not. it certainly would repudiate their legitimacy of those appointments. decisionsy board would have to be redone, how is

the board coping with that problem? >> there are many hundreds of poor decisions that are under a cloud as a result of the d c circuit's ruling in this case. the board will have a considerable amount of work to the decision were to be affirmed. there would be issues about whetherissues about there is authority sufficient to justify what the board did under other circumstances. that would have to be sorted out with respect to the ruling. >> what would happen if under the reasoning of this case, what would happen to the decisions of appointed judges of which there have been quite a few. >> there has -- that would be a serious question and it does point up the difficulty. the de factoargue

officer doctrine. of course you would. you would apply that in innumerable cases. you think we're going to go back and rip out every decision made? >> it casts a serious cloud over the legitimacy of those actions and it does point up the fact that the racist power including appointments during intrasession to fill has been used offices of great importance. ityou started off by saying would repudiate so many actions that have been taken. i have a start question. suppose i agree with the court that the only interpretation of the constitution is that the vacancy must have arisen during the recess by hypothesis. i agree with that. ok? what do you do when there is a

practice that flatly contradict a clear text of the constitution, which of the two prevails? >> the practice has two prevailed. ask if you ignore the constitution. often enough its meaning changes. >> in the situation the meaning of the clause with respect to the timing of the vacancy has been a matter of contention. >> you're questioning my hypothesis. you have to accept my hypothesis. you.ext is clearly against say, it says something practice for over 200 years has been something different and is -- it is the practice -- >> yes or no.

>> practice gives meaning to the constitution. are questioning my apophysis. i am assuming a clear text and a practice that is contrary to it. >> it is extremely unlikely that would arise. >> i am answering. i think given the practice going back to the founding of the republic the practice should be -- govern but we do not have that here. this provision has been subject to contention as to its meaning since the first days of the republic. >> let me ask you about the premise. it begins at a particular point in time and a continues for some time. i was trying to think of some other things that might fall into the same data gory. one would be an appointment to federal office. you are appointed as solicitor general at point in time and the appointment continues.

another example might the a marriage. it happens at a particular point in time and continues for some time. your we say that appointment as solicitor general is happening today and will happen again tomorrow and happened yesterday, is that the way the english language is used? rick scott word happens might not always be an apt phrase. it is a natural use. if i may i will give you a counterexample. if count -- congress had enacted a statute in the summer of 2008 that said the federal reserve is invested with all the powers necessary to deal with any financial emergency that may happen in 2009. at emergency first arose in november 2008. i do not think anyone would interpret that statute is denying the federal reserve the authority that congress conferred. not cover every

situation but it is a natural reading that cover some. it is susceptible to being interpreted -- we're kicking off the standing point. what constitutes a recess? an processon is that -- [inaudible] if we look back historically congress met and they met continuously. and then they were away for six months, even nine months. there , thething like that intrasession recess could be an hour. what do we do with the division of a recess running for months and today the intrasession recess might be momentary.

to make intwo points response to the question what to do. the first one is that with respect to the original understanding, we do think that the term recess and the phrase the recess certainly at the time of the founding did encompass recesses that occurred during a session of congress, during a session of the legislature, and not just in between sessions. i would point the court to the jefferson's manual of parliamentary procedure which describes a resource -- recess i adjournment as occurring within a session. i would appoint to the adjournment clause itself which congressne house of wants to take a break of bloggers -- than three days during the session, it needs the consent of the other house which indicates that the framers contemplated the possibility of a break longer than three days. i would point the court to the parliamentary practice of the

house of commons were the speaker of the house of commons had authority to call elections when a member died during the recess. >> of course, justice ginsburg's question points out that your argument is, it seems to me, in search of a limiting principle. break, break, a one-day you have thought about this. a three-day break, a one-week break, one month break. how do you resolve that problem for us? >> i think the way we resolve that problem is by looking to the adjournment clause. we think that if it is a break that is sufficiently short, that it would not require the one house to get the consent of the other, but that is a de minimis recess and that is not a recess in which the president would have authority. >> is that three days? >> what about the pro forma session? rex they do not require the consent of the other house. >> the problem with the pro forma sessions, i think, is in taking about the link of the

recess. the recess, we would submit, and this is based on the formal action very definition of recess at the time of the founding and now, which is a suspension of business i'm a recess was from january 3 when the session started until january 23 and the reason i think -- >> you think there is no recess during a row form a sessions? >> there is a recess. the reason is because the senate has issued a formal order that no business shall be conducted and that is a formal -- >> let's focus on that. what -- instead of saying no business shall be conducted, the order said it is not anticipated that any business would be conducted. does that suffice to illuminate that as a recess? >> i think that is a different concededly, ank, significantly harder case for the executive -- >> it is difficult and harder but it suggests you are talking about a couple of magic words

that the senate can change at the drop of a hat. maybe the point is not that significant. >> i think it is. it is a formal action by the senate by rule saying that no business shall be conducted. there are other formal actions at the senate took during this time that are compartment -- that are confirming. the senate passed the resolution that gave committees the authority to submit reports and report bills. it passed a resolution giving for -- ident pro tem >> you're not answering the reald thrust of the chief justices question. we could be back here if we said they did not phrase this in the right way. or they will phrase this differently and we would be back here with the same essential problem. you're asking us to pick this on a formality that the senate could obey. -- suggests it is the senate's job to determine if

they are in recess or not. >> there has to be a limit to that. point. what we're talking about is a power that the constitution gives to the president. the president has to make the determination. >> you're making an assumption is that the senate has to take the recess. it senate could choose wanted to and i think there might be some citizens that would encourage it to to never to workreate and everyday. >> that is true. lots of people do. >> they could decide not to take a recess. it seems to me that is the choice of the constitution. >> what do you say about the 20th amendment that says that january 3 was a meeting, are you 20thg they violated the amendment? this is the congress of the united states shall meet on january 3 every year unless they appoint a different day and they have not. -- in pro forma

session. what do you think about the other part that says they cannot adjourn for more than three days without the approval of the house which they did not have. are you saying that the senate amendmentsose other of the two parts of the constitution or are you saying that they have different meanings in the three parts? see think it is hard to what the senate did with pro forma sessions complies with either. >> you're saying they violated -- >> if they have pro forma theyons on january 3, violate the 20th amendment of the constitution. you're saying that if they had a pro forma session on january 3, since their meeting -- the recess was still on and lasted more than three days, it was a violation of that adjournment clause of the constitution. now, that is one way to interpret it. over a long time, they have apparently met her former on these days. them could try to make

mean the same thing which would mean it was up to the senate. they considered that a meeting, it is a meeting. what do we do? >> there is another option. >> would you write that opinion saying the senate violated to provisions of the constitution? >> no. i do not think you need to read that opinion. >> why not? >> because you might perhaps give the senate some deference with respect to requirements that apply only internally to the congress. but when what you're talking about is the senate's yusuf pro forma sessions in a manner that deprives the president of authority that article ii would otherwise give -- >> that is my basic question really. why is this an important case? i think -- i see what you're saying on this one. that is fine for an answer. thank you. question is isc why is this an important case, in your opinion. nguyen have said because there are thousands of recess appointments.

whatave been able to find hundred two. we have had an example of where this court for better or for worse, said that two members of the board is not a quorum and we got some more members, the debt with the problem. they ratified all those opinions to my they get with it. it did not take them too much time. we have different political parties taking absolutely opposite sides, it seems to me, or some members thereof, depending on the political party of the president. and we have a clause that had to do with the constitution and the problem of intercession recesses when they were seven months and nobody could meet. ok, that is not true anymore. so explain to me. i am not saying you're wrong. i want to hear from your mouth why this is an important case. it is important for multiple reasons. with respect to practicalities and fundamental problems of

constitutional structure. let me start with practicalities. not purport to be comprehensive or anything like come prints of. part of the reason why it cannot be comprehensive is that there are not records of when the vacancy first arose with respect to huge numbers of recess appointments and that is because i submit it was not considered material. second, there are numerous practical examples in our history that when it made a great deal of difference that the president had the authority to make an appointment to a vacancy that preexisted the recess. we mentioned the 1948 example. the secretary of labor dies on the verge of a very extended intrasession recess by the senate. they will be out for a month, back for 12 days and out all the way from june. they go out and they are out for

month and they're back for 12 days and their out all the way until december 31. >> would you agree that this is emergenciesith arising from congressional absence, that most modern presidents and i say this going back to president reagan, president of both parties, essentially have used this clause as a way to deal not with congressional absence but with congressional intransigence. a congress that simply does not want to approve appointments. absence in this day and age, -- this is not congressional absence anymore. this makes you wonder whether we

are dealing with essentially historic relic. something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have. originalot think it is purpose has disappeared. was going to lose its quorum. >> as a result of congressional .f -- refusal >> that gets to the second point. it may be true as a matter of raw power that the senate has on ability to sit nominations for months and years of the time. but that is 100 miles from what the framers would have expected. if you look at what hamilton the in federal 76 about advice and consent role of the senate, he said it was a power that was really exercised and would operate invisibly or silently.

advice and consent was a matter of days. aggressive an argument in favor of executive power and it has nothing whatsoever to do with whether the senate is in session or not. when the senate acts in your view irresponsibly and refuses to confirm nominations, the president must be able to fill those positions. that is what you are arguing. i do not see whether -- what that has to do if the senate is in session. >> the recess power may act as a safety valve even that intransigence. i think you said the rationale for the recess power is the president must be able to have the government functioning

even though the senate is not around. to beem in your answers senate notrom the available and making quite another justification for this. the senate is always available. they can be called back on very short notice. so what is it that is the constitutional flaw here? it is not that the senate is not available. the senate is available. it can be easily convened. >> let me take cap a step back and answer that question this way. ishaps it sounds like this an aggressive assertion of executive authority. i ask record to think back to federalist 51. what the framers were most concerned about was that congress and the separate -- in calculus waspowers

going to a mass authority and drain authority and energy from the executive and therefore, the executive needed to before to fight against those actions by congress. and one specific way in which the farmers -- framers decided to fortify the executive was by rejecting the notion that the appointment power should reside with the senate. the framers considered that and they rejected it. and the reason they rejected it, as this court noted in its opinion, was to protect the executive against encroachment by the legislature. >> but the compromise they settled on and moving away from that is that the president will nominate and the senate, if it so chooses, can not -- and for menominee. you spoke of the intransigence of the senate. they have an absolute right not to confirm nominees mud that -- confirm nominees that the president submits. latchingto me you are onto the recess appointment clause as a way to combat that intransigence rather than to

deal with the happenstance that the senate is not in session when a vacancy becomes open. >> those things asked those are often situations in which the senate is not in session when a vacancy becomes open or needs to be filled, i guess would be the more accurate way to say it. i will give you another example from the 1940's. taft-hartley gets elected in 1947 in the senate -- in the summer. on requirement is that the general counsel of the nlrb must enforce the ban on secondary ,hat cuts within a fixed time 30 or 60 days. it turns out there is no general counsel at that time. -- the congress and executive have come together to address those problems and a vast number of cases by providing there can be an acting general counsel of the nlrb to deal with that situation. >> with respect to multimember

boards, the vacancy at does not cover them. that is one reason we have the problem here. beyond that, the framers made a judgment that this was not going to be left to congressional largess. that is why there is a recess appointment clause. >> let's talk about the 1940 eight emergency, the secretary of labor. there was a vacancy in that >> whatever was the case in 1789, congress can be back here in one day. saysle two, section three they may convene both houses. that is true. the president has the power to call him back. >> they made a different

judgment. backhad the power to call during extraordinary circumstances. >> my point is what the cannot be determined on the basis that there will be terrible emergencies, so it must enable the president to do this or that. extraordinary emergencies are handled in the constitution. you don't have to expand the power to handle those. this,t i would say about and to your point, we have a stable equilibrium is him that has emerged over the course of the country's history between the two branches. what we are advocating for is the status quo. equilibrium that has

emerged since president started making appointments during those recesses. it continued to the present. >> i'm not sure this argument applies consistently throughout the three claims you make. if you're going to rely on history and the development of an equilibrium with respect to what happens means, it and you will do that again, that it seems you have to look to history and the development of toequilibrium with respect congress's definition of its power to determine whether a are in recess or not. -- therd argument the senate's side, not on your side. and if we are going to take a kind of practice with the development of equilibrium

seriously, you might win on questions one and two and lose on question three. of importancebe to it the executive. we should also went on question three. there is not a long history reflecting equilibrium with respect to pro forma sessions in order to restrict the president's ability to use the recess appointment power. there is no history before 2007 of this daisychain in in conjunction with an order that no business shall be conducted. >> there is no long practice of doing it. there is no also no long practice of rejecting it but if i could take you back to that, you said the sessions may violate the adjournment clause. would you also say they violate the presentment clause? the senate has passed legislation during the sessions --and sign the legislation and sign the legislation.

>> i think the right way to think about that is the same way we would think about the senate declaring recess and then coming back early because of an emergency, as happened with hurricane katrina. once they are doing business, they are doing business. what they did was they came out of pro forma session, passed legislation, and then went back in. >> it seems to me that we are for a proper interpretation of the word session. after all, it is in the provision. this is what, the 1/13 congress? they have the first and second session. that is how the records are based.

considered judgment by both houses of the legislative branch as to what session means. it seems to me that that has very powerful bearing on the .uestion why don't we differ as to what the session means. what a wiki guidance as to when there is a recess. there is a recess between the sessions. >> that is not interpretation that can be squared with the body of evidence. i would start with the text of the constitution itself and the adjournment clause, which set page 91 a. says is that "

neither house during the session of the congress shall, without consent of the other, adjourn for more than three days." it seems clear -- otherwise these recess is -- recesses would not be happening during the session. it is clear they contemplated the possibility of breaks more than three days. they provided a mechanism for this. >> you are relying on adjournment. that does not have the word recess. >> that is right. to think about what session means in the recess appointment clause where the session is also used. i would submit it means the same thing here. >> if it means the same thing,

then what you are telling me might have some validity. but wouldn't that require the definition of of recess -- of a recess to be a period during which houses have consented to an adjournment? >> the dictionary definition of recess is a suspension of business. you could have those kinds of -- jefferson's parliamentarian manual refers to this -- >> can you have adjournment without a suspension of business question mark >> i'm talking about that intrasession recess points. the meaning seems to be the session. the full session. you can't have recesses by

adjournment as the parliamentary manual said. this is quite substantial evidence that the term the recess could refer to a break ring a session and not just breaks between sessions. evidencehink there is that would lead you to conclude that recesses are not within the the most- >> surprising thing you have said is not just the view of language at the time of the framing, but what the purpose of this clause was. this is a very well briefed case. i have looked at them. i have read them. anything, and i may have missed it, i cannot find anything that the purpose of this cause has anything to do with lyrical fights.

hamilton saysy, the way we will appoint people is that congress and the president have to agree. that is a local problem, not a constitutional problem. -- a political problem, not a constitutional problem. made sixorge bush who point -- appointments. president obama has made for. -- four. he says this clause is a supplement to the basic -- what have i missed? where is it in the history of this clause, in its origin nation, that it has is a purpose to allow the present -- president to try to overcome political disagreement? is itsn't think that purpose, but it is in the constitution. the president has the authority. >> can you give me an example

where the language, particularly the word happen -- your examples of good one but i don't think it applies. the language is over here. the number of appointments on happen is few. if you are worried about james tobin, commerce has passed a law that can be taken as looking at a vacancy occurring when it occurs within 30 days of the beginning of the recess, which would have taken care of tobin. so look at the language difficulty. look at the comparatively small practice in that area. look at the other ways to get around the problem. give me another example of the constitution where you have both language and purpose pointing one place and yet this court has come to the optical illusion -- opposite conclusion. >> don't think language points unambiguously in one direction. battles occur over time.

give me an example with the word vacancy where that word vacancy is used but the word is did not occur. >> a vacancy is an enduring state during >> give me an english example. >> might statutory example. my statutory example -- about a financial exert -- emergency. >> i'm asking you for an example with the word vacancy. >> it a vacancy is an enduring state. >> could you find an example? i can -- i am gathering from my answer you cannot. >> may be the language in the constitution looks ambiguous now, but it has been the subject of contention from the time of george washington to the present. with respect to the question of the practice, i don't think it

is correct to assume that because there are certain number of identified examples existing vacancies being filled, that's the sum total. i think this is far less than the sum total. be' has been assumed to ambiguous by self interested presidents. [laughter] death is an enduring state. but his death happened in 1941. >> the fact that it may happen -- it means it is never asked to describe an enduring state. it has been the understanding since the framing that there is ambiguity here. >> your friend on the other side says one flaw with your argument is that it makes the words it may happen or happen during superfluous. the clause would mean exactly

what you say it means if you took the words out. and your response, the only one 13, is that page the words were put there to confine the president to filling vacancies that actually exist at the time of appointment to rea. do you think they put that language in because they were afraid the president would fill appointments that do not exist but mark >> it does fulfill that function. >> they were afraid that the died,ent when somebody to they had had a big fight, put them through as recess appointments. that could be one thing they did not want to happen. i don't know. same problem. have one in your 1823, it goes back to

--orney general wirt said the case is not strong. , he said, youe would be honoring the letter and defying thepirit -- spirit. on the question of the vacancy -- this.do not disagree with it is of no violence to the language and consistent with the purpose of the clause. from the perspective of the purpose of the clause, the office is equally vacant. a vacancy arose the day before or day after. the senate is unavailable to act. the public's need that the office be filled so that the

laws can be faithfully executed is the same whether the vacancy arose the day before or the day after. >> before you -- >> you have the practice in accord with -- asked -- it was an informal understanding that they would. but there is no express agreement right they're not going to conduct business. then you lose on that part of the case? >> that is a hard case for us. i would agree with that, as does ginsberg,. -- justice in the berg. ginsberg.

>> suppose this was the exact same no business order, but the senator got up and ask for unanimous intent to name a post office. every two days, he got up and unanimous consent to name a post office. the post office is named. they can do trivial business in each of the sessions. would that make a constitutional difference? yous if they did business, wouldn't have a situation in which no business was conducted and you wouldn't meet the definition of of recess. >> that suggests that the rule you're establishing it is so easy to evade that why bother ?stablishing it at all this suggests that this is a question of how to define a recess which really does belong to the senate. >> i think the problem with looking at that way is that the -- that is the end of the

recess power. all the senate needs to do is stay in pro forma session until 11:59 a.m. on january 30. -- january 3. could just come back and by naming post offices have the same effect. does.s whether something else might or might not, i guess we could try to fight that out of the senate. court -- pro this forma sessions are not real. maybe the senate with think twice. >> what is significant is whether there available to confirm nominees? of noy say, instead business will be conducted, no nominations will be considered. >> that would be a different case. they would be here. >> so what? the point is whether they're available to consider

nominations. if they say, will do other business, but no nominations will be considered, why isn't of thee for the purpose recess appointments clause? >> the definition of recess is when no business shall be conducted. that is exactly with the senate said. >> inc. you general. -- thank you, general. >> the advice and consent clause imposes an important check on executive power. each of our arguments provides a basis for -- the government's contrition -- position would eviscerate the check, greeting unilateral appointment power for every vacancy at any time with advice and consent only to be used when giving into the president. >> but your argument would destroy the recess clause.

it would be totally within the hands of the senate to abolish any and all recess appointments. >> yes, your honor. that reflects the fact that the power is a contingent one. it arises only when the senate chooses to trigger it by ending its session and begin its recess. so the senate always has the power to prevent recess appointments. the constitution gives the president corresponding powers. if the president inks the senate is being derivative in its duties, he can convene an emergency session and can force the senate to consider his nominees. if they refuse, he can subject him to criticism for being derelict in their responsibilities. but the one thing that the president may not do is force the senate to act against its will. nor should the president be permitted to do an end run around the senate' is up to act. that conception of the recess appointments clause is at war with advice and content itself.

>> can i ask you another question? suppose we think that language is perfectly clear in some respect, but there is a 200- year-old constituent -- consistent practice, agreement by the president, going back to washington and the senate, that the language mean something else. what we -- what would we do then question mark >> i think delay which has to govern. if you were to rule on the third question presented, it would not call into question any recess appointments at all giving the unprecedented nature of the appointments. but if you ruled on the first questions, i do not think it would be particularly disruptive in terms of calling into question the decisions of past appointees. 1960, there have only been four improper appointments to the article three court's recess appointments. each survey year or less.

three were to the court of appeals. >> i have the same issue as justice alito. suppose on one, the happens argument, this is the most statute,eading of the but the history points so much in the other direction. that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what happens means, right? the idea that we would wake up one foreign morning and talk all that because all of a sudden we read theppened to clause, this at least needs to be defended. >> i believe that the relevant history actress supports us. that history at the time of the founding --

>> assume that there is a 200- year-old established practice. everybody has agreed to us -- it. the text points the other way. >> yes, your honor. i will accept the premises for the purpose of the question. the branches of the government have no ability to take away -- they do not exist to protect the senate from the president. liberty protecting provisions that protect the people from the government as a whole. if the constitution is clear as to what those protections are, what the political branches, deplete, it isto illegitimate. >> that assume something. let's go back. was -- knew it was unambiguous for it a 200-year-

old history. with president washington, they filled two vacancies before the senate broke. almost every president after has done the same. why should we conclude that today'sp -- understanding is the same as the understanding of the founding fathers? take their unbroken practice as giving us that definition? >> a couple of different responses. we dispute the government's historical account of president washington's and the first for president's actions. even putting that aside, everyone who actually spoke to and addressed the issue agreed that the text means precisely what it says, including president medicine, who refused n appointment to andrew jackson precisely because the vacancy had arisen during the recess. session and

second, we don't have an unbroken and never contested acts. the senate has resisted. in 1860 three, the senate passed the pay act, which prohibited pay to any appointee to a pre- existing vacancy. you don't have a kind of uniform -- >> suppose that we were to conclude that the history is too overwhelming to rule in your favor on the happens problem. still use history to say -- or overlook history to intra-or you on the inter- session point? >> yes, your honor. from the time of the founding until 1948, there was a uniform

understanding that the recess and session were interchanging periods. you're either recess or session. an appointment made during the recess lasted until the end of the next session. 21, attorney general doherty's opinion muddled things a bit eerie he assumed that if you took a long break, it broke it into two recesses. you still have the view subject to the arguable and ambiguous exception of andrew johnson. from the time of the founding until 1921, there were some 63 midsession breaks, all longer than three days, so all recesses under the government's definition. during the entire era, with the exception of andrew johnson, no president ever attempted to make a recess appointment. >> tom if i'm wrong about this. it seems to me that this really

so? rose in the 1940's or the. -- there isjohnson the arrow which -- there is the period with andrew johnson. other than that, they do not exist. assume that they came to bay -- presidents started making appointments in them. >> i'm not sure and her stand with the factual understanding. recesses longer than three days prior to 1867. 10 of them prior to 1867, including seven that were longer than 10 days. they were christmas recesses, but so were the ones in issue here. i do take your point that intrasession appointments did

not become -- intrasession recess appointments to not -- reallymon until they started with truman, and then they broke off with three presidents, johnson, kennedy, and ford, making no midsession recess appointments. then begin with carter and the reagan administration, it became very common. a common way to make an unread and -- and run around advice and consent. around 1970, that is about the first time you had this. from 1970 on, that is fairly common. all that is happening is the presidents are appointing recess appointees when they are out for a longer time. now, how are we supposed to go and say that this thing -- thousands of people on the recess part -- is unconstitutional?

not unheard of? what about the due process clause? there?licit clause >> yes, your honor. probably different judges have different approaches. if i am concerned about the asic -- >> i will not resolve the court's. them -- it a meaning that is different from what is said. >> it reflects the fact that the

clause and structure are not meant to protect the branches -- >> should we? this is basically a matter of politics for other branches. that doesn't help me resolve. it does lead over to this possibility. congress did pass the pay act. in that pay act, on this happen part, which i think is the strongest -- very strong for your side, but it defines the vacancy in terms of 30 days prior to their recess. that would take care of most of these. you see, if vacancy could be defined as something that stretches, because congress is it stretches in terms of pay for 30 days. i would love to know what the sg thinks of it. >> a couple of different

responses. first, the third question calls into question no's -- no past recess appointees, the third question. >> putting your mind what would've happened in 1830 f somebody, when they had a nine- month recess, close to 10 months, someone had the bright idea, well, you live near washington. gaucher what at wherever we are holding our session and set for five minutes and will stop andrew jackson for making recess appointments. what would be staying? >> your first question first. the pay act of 1940 clearly repudiates the -- it ties it to appointees cannot get paid under the pay act.

with respect to the question, it creates three exception to the toeral rule against any paid any pre-existing appointees, so you have somewhat of a compromise. i would say that is no more acquiesces -- senate than the president's position. to me, that is a jump ball. the historic example reflects the fact that the recess appointments clause is not about timing, it is about procedure. it creates a power that arises when the senate decides to trigger it. back at the time of the founding, the senators wanted to trigger the power. it was important to trigger the power, because when they were gone, the president needed to be able to act unilaterally, unless they wanted to be subject to a recall in emergency sessions. want that.ly didn't today, the situation has changed. not the principle but historical

context. today, the senators can get back to d.c. very easily. ansuppose we have intercession break. it is three days. your reading of the recess clause, in that three days, the president can fill up vacancies. >> yes, your honor. under the second question, there would not be very many vacancies in the context. >> leave out the second question. question,e first because it seems to me if the rationale was when congress was a -- out of town for 6, 9 months, the president has to be able to make the government work. now you're saying that, in that time only three days, they are available very soon to confirm. somebody dies on day one.

the president makes an appointment on day two. you say that's ok? yes, but you cannot separate it from the second question. vacancies would arise during a three-day break. there wouldn't be much of an opportunity to make those kinds of appointments. let's put that aside. then you're really in the world of the 9-to-5 senate report when they were dealing with president roosevelt's the night recess appointments, in between gaveled drops. if you reject their argument, then i do think you may need to confront the notion that the recess is too short to make recess appointments. not issue here, because the appointment came on january 4 on the the day after congress amidst. this was's definition really reflects the fact that the clause is a

contingent power that arises only when the senate triggers it. that is what give this -- gives the senate the power. if i could turn back to the consequences. >> before you do it the senate's power so comprehensive that it they passed in order saying, were actually never in recess, people can be reached, you can call people back -- so for purposes of the clause, we are never in recess. >> under the first question, i think the answer is yes. they could do that. it is the senate possibilities to trigger the power. is of a piece with the inferior officer's clause. the senate always have the power of the -- of advice and consent. they can authorize the president -- actorize unilaterally

unilaterally in certain circumstances. and certain's -- and in certain time periods. it is within the senate's power. that is why advice and consent serves as an important check. no, i doird question, not think the senate can do that. it is for the court to look at the journal. the fax might be taken as undisputed. he was gaveled into session, and during the. e --this court would have to take those facts. >> but go back to this. what is your definition of a recess? when the senate actually says they are taking a recess? >> it depends on which question you are talking about.

on the first, the recess is the. between when the senate says it is ending its session through an adjournment sine die. >> doesn't have to do that? >> it does not have to adjourn. -- in this country is the way it has traditionally signaled it is ending its session. >> doesn't need the consent of the house? works yes, your honor. consent ofneed the the house? >> yes, your honor. senate candid term in -- can adapt its own rules. the important point is to communicate that to the president. time, president madison's the tradition with the senate

would dispatch the committee to the president to inform him it has ended its session. the president would then know it is in recess and the powers had been triggered. the recess appointment power. ruling in favor of the third question would -- >> on the first question, does your argument depend on the assumption that the possibility of a lengthy intercession break -- byver contemplated who those who framed and ratified the constitution? there's a chance that the senate may take a two-month break over christmas. is there any reason why they would not have wanted that to apply there as well as at the end of the session question mark >> our argument does not turn on that. it is not a temporal one. it is a procedural one.

the senate had the power not to trigger the recess. just like today. it has the power not to trigger the recess appointment power. the difference is not in principle. it is an historical context. they wanted to trigger the recess appointment power because when they left during long periods of time, they wanted the president to be able to act unilaterally since it was very difficult for them to get back. they didn't trigger the power, the only way the president could act and confirm nominees would be by converting a emergency session. highly inconvenient. this -- the historical facts have changed. today, it is easy for senators to get back to washington. they don't want to trigger a unilateral power. they are willing to be healed back if necessary. rent the purpose is to president to fill vacancies when the senate is unavailable to consider nominations and the country would be harmed by

having these offices vacant for a lake -- length of time, why would that not apply to any lengthy break, whether at the end of the session or middle of the session? if you're arguing it only applies to the end, doesn't that depend on the assumption they were never -- there would never be a lengthy break. >> it is possible they never thought about it. even if they had, i don't pick it would matter. i think the purpose that you laid out is not quite the whole. clause. of the that the president not do an end run around advice and consent. they vested with the senate the power to authorize the president to act unilaterally.

with respect to recesses, that authority was triggered when the senate decided to end its session. the senate did take seven midsession breaks of longer than 1867.s prior to it is inconceivable that the senators leave they were entering into a recess that would have empowered the president to make unilateral appointments during the periods. that reflects the fact that the clause is a contingent one that arises when the senate triggers it. >> can i ask a question about the second question, the happens question? if you put aside all the history and look only at you language, our modern view of what happens, that surely seems to favor your position? given all the statements in the founding. period about how this is ambiguous -- if you look at the dictionary -- i looked at the

oxford english dictionary. one of the definitions is chance to be, the exact same definition that thomas jefferson said made this ambiguous. he would never use happens in this way now. if you look at the examples that the dictionary gives, they are laughable. nobody would say that now. it is suggested to me that maybe what we think is clear is only hasr because one meaning lapsed. >> i think the meaning happens had the same meaning then as now. which is why at the time of the framing, everybody goose -- who studied the issue such as madison, hamilton, and charles lee agreed that it meant what it said. >> i don't think so. thomas jefferson says it could mean one thing or the other, and the other thing he said, which

is happens to exist, is sort of exactly this old definition, which happens means chance to be. conceded that the recess appointments clause as it stood was going to frustrate his ability to make appointments. >> i think happens continues to mean chances to be. we still use it that way. we only is it that way when does fall by an infinitive. i happened to see him means a chance that i saw in. or the structure of the twin towers happened to occur on 9/11. on wouldn't say it happened 913 simply because it continued to be destroyed. the dictionaryat examples that justin kagan i bet theo work, but

used happen full of by an infinitive, and i think we still use it that way. >> and armor of them exactly. i just remember laughing at them. they were 1483. in 1490 something. and then asterisk that said obsolete. i couldn't figure out what they were talking about. , there is not just the word happen. it's preceded by three other words. deal the purpose that those words serve is to constrain the universe of vacancies that are eligible for a recess appointment. >> the constitution as a first was has now been amended. it uses the word vacancy as the

cause we are discussing here. by -- the governor can make the appointment. he certainly wouldn't be that could happen over three days. >> it is even better than that. at the time of the framing, the governor tried to appoint somebody to the senate pursuant to that clause. during the legislative session. the senators refused to seat that individual. that further supports our position. the language on the happen, but the practice -- and in heticular practicalities -- can make a recess appointment. they have less authority. somebody appointed in that way. government won't grind to

a halt, it faces a problem. >> that as a consequence of advice and consent. it advises not just when the senate takes breaks but when it is in session. they could show up every day for an hour, said at their desk -- sit at their desk, and announced they will not do anything. we don't like what you are doing. the only reason we are showing is because we don't want you to make recess appointments. nobody would claim the senate was in recess during those sessions. what itis effectively was doing here. i would like to address the practicality issue. i have talked about how there have only been four recess points since 1950. i don't think if you were to rule, it would be disruptive to the executive branch. i would hazard to say that most of those officials probably do any agencye much if

rulemaking. as for those who do, going forward, the government can solve the problem. there are a variety of doctrines that would limit anybody's ability to limit their actions. including the six-year statute. finality issues. doctrines.ability -- de factofficer officer doctrine. i think this constellation explain why this is the first time the issue has reached the court into 25 years. this is not to say that her rule -- have any past impact.

but this court has never shied enforcing simply because it would have an impact. exist totural issues protect the people. we therefore believe that the court should be affirmed. i'm happy to answer additional >> thank you counsel. >> thank you mr. chief justice. case is about who gets to decide whether the senate is in recess. submission is that the

senate gets to decide whether the senate is in recess. >> what other wide limits? >> this is all about how the -- under thes to rules of proceedings act. what the court said is the exercise of rulemaking authority by congress was almost absolute and be on the challenge of anybody or tribunal unless you served some independent constitutional authority. usurped some constitutional authority. the only possible offer here as to how the constitution could have been violated by the actions of the senate is the theon that this has invaded purported recess appointment power of the president. the reason, as we say in our brief, what why this is

senateantial is that the , by the design of the constitution, the appointment clause, has an absolute veto over nominations. the framers could not have been more clear that the standard power of appointment was a joint power of appointment. generale, the solicitor is forced to concede that the spoiler -- that this power, what ae president is asserting, is subsidiary power that only arises if the government -- senate chooses to recess. >> is the chief justice's example -- the senate said, we are never in recess for purposes of appointments -- would that be permissible? >> if they were never in recess, then the senate is not in recess yes,.

if the senate says we are taking out i'm going to hawaii, we will never be in washington, that would not be permissible. the cause the adjournment clause requires the consent of the be notor the senate to only gone for three days but to be in a different place. the senate cannot leave the chamber. consent ofwith the the house. maybe if the senate has effectively given up in that .ase, problem isntal twofold. we have senate records. the journal clause of the constitution. have --ts each house to

date, itthat on each is an official record of the senate. they call -- were called to order then adjourned. whos not say that two guys happen to be senators met at a bar. they say it was called to order and adjourned. exactlys the end of it the same, if it took place during the nine-month intercession recess in 1835. >> it would be the same unless the senate chooses to recess. therefore, if they were all in 1835, to the winds

it would not have been possible to make theackson .ecess appointments >> the executive could have attempted to construct the same type of executive -- >> here, it is a weaker argument. one of the oddities of the case -- they are moving to the modern age. the rules tend to provide for the senate to be available at the drop of a hat. nine, youk at rule can always get communications from the house or executive. --you look at rule committees can meet whether or not the chamber is in session.

the business of the senate is ongoing. in the modern world it is different than hypothetically. anything that would turn it back to the practicalities. imagine -- i would have thought president theodore roosevelt acted unconstitutionally he tried to make all his appointments for dozens and dozens, during the the two second. -- and by converse reasoning, the congress would not have been able, in 1835, to prevent recess appointments. simply by having a nearby senator's show up for one second.

>> this does raise the question to speak to the application that the solicitor general makes in his brief. the senate, as a body, doesn't have a view on whether it isn't -- it is in recess or session. the official records do show that they were in session. party controls the senate. they say it is not a debatable proposition. if a majority of the senate wants to recess even before the evolution of the fill better --

filibuster, so the senate says, we want to recess. want to go away. -- we want to go away. what happens then? section three -- -- if theo section 3 senate had any view, they could have had a vote and the issue would have been up in the white house. power tonstitutional give himself and intercession recess by terminating the session and having a real recess appointment power if he could find somebody whose vacancy had actually arisen at the time. way of the cockeyed going about this. there's no power in the constitution to use the clause to overcome the opposition of the senate to the russians.

-- questions. -- theree hear today is no trade. -- parade. the only thing that could happen is that the president would be forced to come -- comply with is advice and consent that called for. that was not reviewed -- viewed as an evil. that is what they viewed would be be visible means of appointment. >> so a three-day recess between -- your argument is that is a recess and the president can make appointments in that time. >> justice can's bird, that is justiceesting --

ginsburg, that is an interesting question. there is a question as to whether the session of the 1/12 congress ended on january 3 and therefore we have the same teddy roosevelt situation, or whether by adjourning on december 30 and conduct of getting no further meetings until january 3, whether that in effect was a sine die adjournment that ended the first session of the congress. if the president had the same view, he could've taken the view about the sessions between december 17 and january 3 and could have had a better legal argument and attending to claim --t between december 20 30th he did not do that.

the conveningil of the first session of the second section of the 112 congress, by january 4 instead of generally third, -- january 3, he gave an extra year to his appointees to serve. that shows this is indeed the bottom of the slippery slope. it is a complete abuse of the process. it is being used for no other theose than to overcome senate opposition or disinclination to agree with the president's nominations. contemplated when they came up with the joint power of a -- in a country of 3 million -- 300 million people, when they want a nominee and the senate does not agree, it is

possible for the president to come up with the mother -- with another nominee who is more qualified and acceptable. the key is acceptable to the senate. he has to be able to ring someone to the senate that they are willing to engage in the power of appointment. >> in your early example, you said that the senate decides to recess and the house does not the president can then do it. is it your belief that a recess of -- is only something that both houses have agreed to question mark a break in both houses? >> it is usually the case but not necessarily. >> why does the president have to adjourned the house in your example? --no

>> can the president appoint, at least in your >> if the senate has been without days so that the session of the senate is president,if the under article two, chooses to leave the house in session -- >> why do you need a date? will make ahat recess defined as something without the date? >> this takes us back to the first argument, and i think the comp -- the contemplation was that the recess would be between the time that intervened between the ending of the session of the congress and the beginning of the next. had a date, because we knew january 3 was a new session. >> well