olc rests its conclusions on past opinions ever attorneys general and its own office. historical practice that has beenck-ack key essed in by congress and it also rejects the applicability of the senate's rulemaking authority as upsetting the balance between the branches. the olc exaggerates, proufr, ho the consistency and relevance of past opinions respecting intrasession say appointments as well as how far back in history they actually extend. indeed, as late as 1901, attorney general philander knox opined that only intercession recesses were appropriate and that intrasession adjournments had never been deemed a constitutional recess by any of his predecessors, because of the wording of the recess clause limiting the power to the singular. that is the recess, and the fact that although allowing for intrasession appointments would be convenient, it was not sufficient to overcome the constitutional requirement for senate confirmation. knox explained though congress may adjourn for months as well as days, the argument of convenience could not be admitted to obscure the

the olc opinion, as have been observed, mepntions that there are litigation risks. i don't recall a single instance when i was white house counsel that we asked for an olc opinion coming out saying this was a litigation. i don't recall that happening. that is a real red flag, but it certainly does set into a high uncertainty, anything with these agencies do with these appointees. regulatory uncertainty is a real problem. we don't talk about it that much, but in my experience, in the business community representing clients in the business community, having been a businessman myself, there is nothing more damaging than uncertainty. not knowing what the rules of the road are going to be. and for people subject to the lrb with very, very broad jurisdiction, people subject to the consumer protection bureau, extraordinarily broad jurisdiction with no accountability by a political branch no, accountability by the white house, no accountability by the congress, and no accountability really by the courts which are required to defer to the rulings of the consumer bureau, ther

memo, with all due respect, is a perfectly good example of what the kind of work one gets from olc, which is not just nonpartisan, they try to look at all the sides and come out with judgment. in terms of your question, i think the framers sort of told us what they think about this circumstance. when they set is up the constitution. laws are made a certain way in compliance with article i that is how laws are made, but there may be other factors that come along the way, funding and other things that are made through other laws. but in terms of nullifing a law, one chamber does not have the ability to do that. the laws are made through presentment clauses. >> i was intrigued, there for i like to see what the other side says, so i wanted to see what a former office of legal council had said under a comparable circumstance. now, this president is known for his patience and unflapability, some would say criticized for his patience. particularly with this congress. here let's take the office of the consumer bureau. the response to one of the most important responses to the most critical

this olc merm ran dumb asserts the president may unilaterally conclude the sessions such as those held by january 3rd, 2012, and continued every tuesday and every friday until january 23rd, 2012, somehow do not constitute sessions of a senate for purposes relevant to the recess appointments clause. this assertion is deeply flawed because the procedures accomplished by the constitution it is for the senate and it's not for the president to decide when the senate is in session. indeed, the constitution expressly grants the power to determine the rules of its own proceedings. to assert that the president has an unconstrained right to determine for himself when the session is or is not in session and to appoint nominees unilaterally at any time he feels the state is not responsive, as responsive as you would like it to be, even when the senate is meeting, is to trample upon the constitution separation of powers and the system of checks and balances that animated the adoption of the advice and consent requirement. i look forward to answering your questions. and as i answer those questions,

i olc the gentleman to really did not limit you to five minutes but i appreciate your accuracy. i will now recognize myself for a first round of questions. >> we will call the professional courtesy. i always appreciate when people look at themselves to five minutes as well. >> being a house member i've noticed that when house members could to the senate, there is forgetfulness that we somehow say. senator, the cfpb pass under dodd-frank isn't unique or fairly unique that it receives funding without appropriation from congress? >> gutzman understanding this because the position is embedded in the federal reserve, because the federal reserve bank is not in a sense in the literal sense and the traditional sense the government agency but rather a private for-profit corporation, it's not an entity that congress controls in the sense of controlling its strengths and so that is a significant concern that many -- >> so you had no other way to ask for reform, consideration or anything else other than this confirmation? it was an unusual situation in which one of the ordinary powers of th

eequally nud and absurd to us in terms of structure of allocation of power and what we got was two olc alums dividing in that opinion. one is justice scalia, as you know in dissent, saying in a formal manner to assign prosecutorial authority outside the executive branch is quintessentially a violation of the separation of powers and our other alum, your old boss, the chief -- late chief justice said, no, we'll just have to wait and see if he's really adversely effected by the assignment of executive power outside of the executive branch. and maybe we should ask a few subsequent presidents as to how well that worked out. >> can i just make one ten-seconds point? >> ten seconds. i yield the ten seconds. >> the grace of the chief was the infrequency and the small number of people the statue applied. the reason this is a different situation is because there's no limiting principle. in one instance you have a limited intrusion of congress into the plenary authority of executive branch. here you have unlimited intrusion of article ii into planning authority of article i. >> i think we can se

the first 18 pages of it go through olc precedent that nobody is disputing. analysis on pages 18 and 19 are entirely conclusionary. what animates this opinion, to put it very crispy, is you've been somehow the president is entitled to recess appointment. the reason the recess appointment is a gap filler, if seven is so wanted it can of rang for himself to be in constant session. the president does not have a power or to. if congress an cummings and his colleagues, they are right to populate the executive branch with the people he finds congenial. i'm actually sympathetic to you but if a senate wish toes disapprove or not vote, the president will be very lonely. that is perhaps unfor late, but that is a reason to work with constitutions. there's a great deal at stake here. we're talking about the greatest. and it's amazing to me that people were very critical of a previous president in this area. unjustly, in my opinion. seemed to be quite silent now. thank you. >> thank you. mr. carter? >> thank you, chairman issa and ranking member cummings for unsiding befo

here was one problem with that, that i think olc wrestled with over the years. what's the bottom limiting principle of that? because the house and senate often recess until the next morning. does that mean that president can make recess appointments for people to serve until the end of the next congress every night at midnight as soon as, have they left? have they gone home? you know? so that has been a problem. i think for those overnight ones you can actually find a textural insight from a provision of article 1 section 5 that i haven't seen cited in these debates, and that is the quorum requirement, a majority shall constitute a quorum of each house bought smaller number may adjourn from day to day without a quorum. and the only two things can you do without a quorum. adjourn, quote from day to day. and the few who are there can compel the attendance of the absent members. i think that is one that, that can't be a recess if it's not a quorum is not applicable. day to day falls within the constitutional amendment. if the reason why and the only reason why the

>> logically it would be a very short hop, i deed, from the olc memorandum justifying or purporting to justify these recess appointments and the kind of recess appointments you described occurring over weekend r a weekend. >> with that, i yield back. i would absolutely yield. >> one quick question. mr. conley sort of berated and told you of his disapproval. who would have or could have, not the 44, the 47, who could have, in fact, held hearings, particularly let's talk about the nlrb, who schedules those? >> the committee. >> the committee is controlled by? >> democrats. >> did they schedule a hearing on an nlrb appointee? >> not the two nominated on december 14th. >> and who could have scheduled the vote on the first one? >> democrats in the senate. >> and it wasn't the 44 that stopped that, was it? >> correct. >> thank you. i yield back. >> gentleman's time has expired. i yield myself five minutes for the purpose of questioning, senator lee, i appreciate you being here with us and your leadership on this important issue. my colleague from oklahoma concluded with the main focus of my

i don't know if these are opinions that olc would have an objection to provide them. to the extent i can, i will make those available to you. >> okay. i'll begin my question, i guess, by following up. mr. attorney general, you have the executive branch has executive privilege. it's narrow. it's well-defined. there's case law. if you do not find a legitimate basis to deny us the material we've asked for, we will seek the remedies necessary to compel. having said that, i appreciate your being here today, and i don't want to waste any of yours or my time on this point. let's go through a couple of items here. first of all, reported through discovery we have received mr. monty wilkinson may have informed you of agent terry's murder in a timely fashion. is that true? >> he may v i know the murder occurred december 14th. i heard about it probably within 24 hours. i don't know if it came from monty wilkinson or somebody else from my staff. i knew about the murder within 24 hours of its occurrence. >> when you were informed about that within 24 hours, did anyone inform you or

doug, you mentioned you think these are a sham, that's the term that olc used and others have. so i want you to focus on two familiar dates. december 23rd, the day on which the senate and the house, both in pro forma sessions, passed law by unanimous consent. and in so doing, not only complied with their obligation to meet every third day in the absence of the consent of the other body, and so we're in that session actually performing a constitutional responsibility that they come into session. also exercising the quintessential responsibility of a legislative body, which is pass legislation. was the senate in session, did it come into session on that day? did that particular session interrupt the december 17th to january 23rd recess that you were citing? same question is this, folks on january 3rd, a day when the senate came into pro forma session to satisfy another constitutional obligation. in addition to the every third day requirement article i section 5. and that's the 20th amendment. constitution demands that both houses come into session on that day provide. and on that

i don't know if these are olc opinions that olc would have an objection. but to the extent that i can, i will make those available to you. >> okay. i'll begin my questioning, i guess, by following up. mr. attorney general, you have the executive branch has executive privilege. it's narrow, it's well defined, there's case law. if you do not find a legitimate basis to deny us the material we've asked for, we will seek the remedies necessary to compel. having said that, i appreciate your being here today, and i don't want to waste any of yours or my time on this at this point. let's go through a couple of items here. first of all, it is reported through discovery that we have received that mr. monty wilkinson may have informed you of agent terry's murder in a timely fashion, is that true? >> he may have. i know the murder occurred december 14th. i heard about it, i think, probably within 24 hours. i don't know if it came from monty wilkinson or some other member of my staff, but i knew about the murder within 24 hours of its occurrence. >> when you were infor

i olc the gentleman to really did not limit you to five minutes but i appreciate your accuracy. i will now recognize myself for a first round of questions. >> we will call the professional courtesy. i always appreciate when people look at themselves to five minutes as well. >> being a house member i've noticed that when house members could to the senate, there is forgetfulness that we somehow say. senator, the cfpb pass under dodd-frank isn't unique or fairly unique that it receives funding without appropriation from congress? >> gutzman understanding this because the position is embedded in the federal reserve, because the federal reserve bank is not in a sense in the literal sense and the traditional sense the government agency but rather a private for-profit corporation, it's not an entity that congress controls in the sense of controlling its strengths and so that is a significant concern that many -- >> so you had no other way to ask for reform, consideration or anything else other than this confirmation? it was an unusual situation in which one of the ordinary powers of th