mr. chairman, two points for you briefly, first of all, with respect to professor gearhart, all be it in a mild language the possibility of -- and second to pick up on an excellent point, is a fundamental difference, aside from a specific foot print. between challenging a different decision and challenging the legitimacy of a whole subset of an agency. i think it's not only constructive, but frankly does not aspire to where some of the americans are assessing our given agency or two agencies have been acting constitutionally for a couple of years is a very bad thing in terms of maintaining the confidence of the people in the government, quite aside from all the costs of businesses and commerce involved. >> mr. gearhart, in the narrow question that if this is ruled that these are not, would you like to speak to the consequences? >> assuming that that were to occur, there are a couple of things, i mean the one is, i think you still may have a muteness problem, that is to say, so much has already transpired to what extent can any of that be undone by any court. and the second thing i would

mr. gearhart. >> thank you for the opportunity to be here today. i greatly appreciate the invitation. at the outset let me just make two quick personal comments, if i may. first of all, as a conversations stul law professor i have to tell you that there's nothing more special no, greater honor than will is for me to be able to participate in a hearing like this. i am grateful for that. at the same time, i speak for myself today and, of course, not nowhere else or not for my institution. let me at least say, someone who teaches at the university of north carolina law school, let me speak for the record that mr. gray is a north carolina treasure. i hope you will allow me that. of course, i also understand you've got my written statement and i don't want to go back through that in any detail, i do want to take my brief time today to focus on a couple of issues. the first one of which, of course, has to do with major question that has concerned this committee and other people and that is if t. question about whether the time in which the president enacted was, in fact, a recess and consti

mr. michael gearhart is the distinguished professor in constitution allow and director at the university of north carolina school of law. mr. david ripken is a partner at baker and cochairs the firm appellate practice and white house counsel. mr. mark carter is a partner at d nsmoore where he advises clients on traditional employment labor law. mr. carter has experience litigating pursuant to committee rules all witnesses except members of congress will be sworn in before they testify. so i would ask you to please rise and lift your right hands. do you solemnly swear or affirm the testimony you're about to give to be the truth, the whole truth, and nothing but the truth? may the record reflect all witnesses answered in the affirmative. we are pleased to recognize you for your opening statements. i'm sure all of you perhaps have done this before. know what it traditionally mean in life. with that, we would recognize ambassador gray. >> mr. chairman, thank you very much for the opportunity to testify. you've just heard extraordinary tutorial in a way from senator lee covering almost every a

mr. gearhart, i'm not going to give you any mall school hypothetical sort worst case a -- i still go over there to teach once a week. i look first to the written flood vice president received from the office of legal counsel because the office of legal counsel is considered i think by most of us to be the least political office in the justice department that has the job of that office is to keep its president from getting in trouble, and if someone were to put out some words that i asked the stuff to get from his analysis following the senate under the recess appointment clause by holding performing sessions with the inconsistent, both of the purpose of employed and practice in analogous situations. now this opinion ceased to raise subornation powers. question to read that me ask you, since i'm not congress but it's constantly looking to the framers with a duty to the framers intended the congress to overturn bylaw? why -- to confirm an appointee to run an agency. do you think the framers have that as a possibility of mind? i think that the mevel with all respect is a perfectly good examp