a financial emergency. >> i'm asking you for an example with the word vacancy. >> 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. >> it has been assumed to be

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 i could see, page 13, is that the words were put there to quote, confine the president to filling vacancies that actually exist at the time of appointment

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 president when somebody died, and they had had a big fight, to put them through as recess appointments. that could be one thing they did not want to happen. i don't know. same problem. >> you do have one in your brief, it goes back to 1823, attorney general wirt said -- the case is not strong.

but the purpose, he said, you would be honoring the letter and define the spirit -- defying the spirit. on the question of the vacancy -- >> we do not disagree with this. 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 -- >> you were 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 said, 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? >> if they did business, you 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 establishing 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 is -- 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. >> they could just come back and by naming post offices have the same effect.

>> this does. whether something else might or might not, i guess we could try to fight that out of the senate. i assume that this court -- pro forma sessions are not real. maybe the senate with think twice. >> what is significant is whether there available to confirm nominees? so they say, instead of no 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 the same for the purpose of the recess appointments clause? >> the definition of recess is when no business shall be

conducted. that is exactly with the senate said. -- 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. since 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 natural reading of the statute, 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 had -- happened to read the 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. they are 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, have conspired to deplete, it is illegitimate. >> that assume something. let's go back. they know it 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 pop -- today's understanding is the same as the understanding of the founding fathers? what are we 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 to make an appointment to andrew jackson precisely because the vacancy had arisen during the senate's session and recess. 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. could we still use history to say -- or overlook history to rule for you on the inter-intra- 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.

in 1921, 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. >> tell me if i'm wrong about this. it seems to me that this really only rose in the 1940's or so?

the period with andrew johnson -- there is the arrow which -- there is the period with andrew johnson. other than that, they do not exist. assume that they came to bay -- be and presidents started making appointments in them. >> i'm not sure and her stand with the factual understanding. there were 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 become common until -- really 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? isn't -- it is not unheard of? what about the due process clause? the implicit clause there?

>> yes, your honor. probably different judges have different approaches. if i am concerned about the asic practicality -- >> i will not resolve the court's. >> we gave 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

-- if somebody, when they had a nine- month recess, close to 10 months, someone had the bright idea, well, you live near washington. show up at wherever we are holding our session and set for five minutes and will stop president 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 the -- most appointees cannot get paid under the pay act. with respect to the question, it creates three exception to the general rule against any paid to any pre-existing appointees, so you have somewhat of a compromise. i would say that is no more acrid ansys -- senate acquiesces than the president's position.

to me, that is a jump ball. i think 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. they obtusely didn't want that. today, the situation has changed. not the principle but historical context. today, the senators can get back to d.c. very easily. >> suppose we have an 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. just on the first question, 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 going 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. very few 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. by anyone's definition this was a all of this 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. the clause 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 to authorize unilaterally -- act 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. on the third question, no, i do

not think the senate can do that. it is for the court to look at the journal. the facts might be taken as undisputed. if they show 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.

that is an -- in this country is the way it has traditionally signaled it is ending its session. >> does it need the consent of the house? works yes, your honor. -- does it need the consent of the house? >> yes, your honor. >> i think the senate candid term in -- can adapt its own rules. the important point is to communicate that to the president. during president madison's time, 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.

here, 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 was never contemplated who -- by 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. >> if the purpose is to rent the 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. -- herbs of the clause. purposes 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 10 days prior to 1867. 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? but 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 clear because one meaning has 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. >> jefferson 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. you wouldn't say it happened on 9/13 simply because it continued to be destroyed. i don't know what the dictionary examples that justin kagan referred to work, but i bet the 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. >> in addition, 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. this happens 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 particular practicalities -- he can make a recess appointment. they have less authority. somebody appointed in that way. if the 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 up here at our is because we don't want you to make recess appointments. nobody would claim the senate was in recess during those sessions. >> that is effectively what it 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 not exercise much if any agency 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. various finality issues. various disability doctrines. the defect officer -- de facto 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 would not past -- have any past impact. but this court has never shied away from enforcing simply because it would have an impact. the structural issues exist to protect the people.

we therefore believe that the court should be affirmed. i'm happy to answer additional questions >> thank you counsel. >> thank you mr. chief justice. this case is about who gets to decide whether the senate is in recess. our submission is that the senate gets to decide whether the senate is in recess. >> what other wide limits? >> this is all about how the

senate chooses to -- under the 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. -- it 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 notion that this has invaded the purported recess appointment power of the president. the reason, as we say in our brief, what why this is insubstantial is that the senate , 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. therefore, the solicitor general is forced to concede that the spoiler -- that this power, what the president is asserting, is a 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 house for the senate to be not only gone for three days but to be in a different place. and the senate cannot leave the chamber. other than with the consent of the house. maybe if the senate has effectively given up in that case,. the fundamental problem is twofold. we have senate records. the journal clause of the constitution. it directs each house to have -- it shows that on each date, it is an official record of the senate.

they call -- were called to order then adjourned. it is not say that two guys who happen to be senators met at a bar. they say it was called to order and adjourned. >> that's the end of it exactly 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 scattered to the winds in 1835, it would not have been possible for andrew jackson to make the recess 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 is that they -- they are moving to the modern age. the rules tend to provide for the senate to be available at the drop of a hat. if you look at rule nine, you can always get communications from the house or executive. if 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. >> you say 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. the president's 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? article to section three -- article two section 3 -- if the

senate had any view, they could have had a vote and the issue would have been up in the white house. he had constitutional power to 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. this is the cockeyed way of 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. for all we hear today -- there is no trade. -- parade. the only thing that could happen is that the president would be forced to come -- comply with

the advice and consent that is 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 sessions -- your argument is that is a recess and the president can make appointments in that time. justice 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 that between december 20 30th -- he did not do that. by waiting until the convening of the first session of the second section of the 112 congress, by january 4 instead of 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 purpose than to overcome the senate opposition or disinclination to agree with the president's nominations. the framers 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 approve, the president can then do it. is it your belief that a recess of -- is only something that both houses have agreed to ? >> 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 view, any vacancy that occurs during that recess? >> if the senate has been

recessed without -- this could be the ending of a session of the congress and the beginning of the next. that was not true until the 20th amendment. the date was a much different originalhe constitution. to answer your earlier question, it is usually the case that a recess is going to be longer than three days, but it needn't be. senate finishes all this legislative business in this year on december 30, 2011, and

then voted to ensure sine -- adjourn sine die and did not meet until the beginning of the second section of congress on january 3, that would be an intercession congress. but in the usual case in which a recess is taken for an extended time, it would be the kind of framersat the contemplated we need the consent of the house. we have a system of a bicameral legislature. the houses, too, are supposed to work together to accomplish the business of the people. if the house is working on something and the senate wants to go away, they need the consent of each other, because they may need each other to frame out ongoing legislative projects. own judgmentin its thinks the senate is sufficiently available to the house in our bicameral system so that it has been in full

compliance with the adjournment cost, it is very difficult to see how in the agreement of both houses of congress that the senate is in fact effectively there withthat it is the full power of unanimous consent every third day. if the house thinks that is adequate to the discharge of his constitutional functions, it's very difficult to see how the president gets to second-guess that. one final point that has to do with the solicitor general's assistance on the no business language. it is-1 of the senate, also in our appendix, that any business may be conducted at any time without notice by unanimous consent. and so that effectively what we have here is we have not only announced by the senate that between december 17 and jenny

way 23, only can -- only unanimous consent would be agreed to. mr. chief justice. let me begin on a couple of points on the intracession recesses. with respect to the question the justice alito raised. it would've been perfectly familiar to the framers that a legislative body could take a intraceessiossion recess. jefferson's policy manual specifically reserved -- refers to recesses by a that occurs within the session. the the german clause itself contemplates-- the adjournment clause contemplates the approval of the other branch. it is difficult to imagine that alito'ss justice

hypothetical slick just at -- hypothetical suggested, the president had decided to take a two-month break, the president washington would not have been able to staff the offices of the republic using big recess appointment power. on thee agree with you first question, there needs to be a number or a functional test. i do not know where the number would come from. >> we think the number should be the number in the the german clause, -- adjournment clause. they have not -- the presence of that in the clause or the absence of any number in that clause, how do you explain that? >> i think there isn't really a need for explanation. a reassessment is the suspension of this news. and what the adjournment clause for is if you are gone

three days, you are not suspending business. if you are gone for more than three days you are. with respect to the history on intracession recess appointments, if you look at the congressional directory, which is a document, we set in our briefing, you look at the column eeat says recesses, you s page after page of blank space until you get to the civil war era when intracession recesses become more frequent. these appointments paralleled the increasing use by the senate. argue that the senate acquiesced to that? what would you expect a senator to do? the president appoint somebody in a recess, contrary to the respondents view, what is the senator who objects to that supposed to do? >> a couple of things about that. the pay act was first enacted in

1860's. -- the it never said anything about nrying to restrict intracessio appointments. if the congress felt that these were improper, they could've and what they did before, pass a statute making it a crime for somebody to take one of these appointments, but they do not do anything like that. >> on the same grounds you are objecting here. that is not something that is effective. if you think it is unconstitutional. expression of an the disagreement as acquiescence, it would be an expression of disagreement and it did not happen. >> the senate says, we do not agree. you say, that is too bad, the appointee is an office. >> but they did not. objectednter famously -- >> -- one senator famously

objected. that objected to particular appointee. that is about the length of the recess and not about the existence of the power. >> i want to make sure i understand. your idea is that the senator who objects should do what? >> the senator can say whatever he wants, but we do not have a historical record of acquiescence. >> but suppose the senator says, i object to that. what can i do? the only thing i can do is impeach the president for violating the constitution. he says that is not worth it. bdoye congress as a thought these were inappropriate, they could take legislative action. don't we agree, we certainly agree on the criminalizing point. act, such ashe pay

when they never try to address this. >> people eject all the time to think that they cannot do tnything about -- people objec all the time to things they cannot do anything about. >> that as an individual and not the senate objecting. your six i-- minutes could not be up. take 15 more minutes. [laughter] guest: there were a couple of committee reports of those were on the happen issue. your honor, i pointed out the number of appointments. >> do not think that charges copper hensley said in our brief. 39 presidents have made those appointments. the purposes of the clause are far better served by reading the other side. your honor asked about the pay act.

it says something else, which is that the nomination is pending. the reason i'm doing that is it seems to me hypothetically a real matter for the political branches to resolve among themselves. we have to decide this. what why not look and see ?ongress objects to the least >> there is another provision in the pay act that says as long as the nomination is pending -- what they care about is the chance to exercise their advice. >> that is not the senate that is sitting now. you are archer being the views of one senate to the senate over time. -- you are attributing the views another.nate to

>> i am interested to see how you think the 30 day idea plays out. >> i think there is an equilibrium here and 30 days does not fully capture it. let me talk about that. >> briefly. >> thank you. briefly. the vast majority of appointees are submitted for advice and consent. that was true historically and now. they are subsequent confirmed. it is just not the case that this is an end run around the advice and consent role of the senate. there are reasons why presidents do that. they do not want to have temporary appointees, and they do not want to create friction. the problem i will submit is that if you go with respondents on the pro form issue or the 2 arerlying issues, you

writing the recess appointment power out of the constitution. that is antithetical to the liberty enhancing issues of the separation of powers. thank you. >> the case is submitted. >> c-span, we bury you in the room. -- we put you in the romm. om. all as a public service of private industry. created by the cable industry 30 years ago. follows in hd and us on twitter. >> this week on "newsmakers," richard cordray, welcome back. we appreciate your time. we have jim puzzanghena who is with th"