Recess Appointments

Floor Speech

Mr. HATCH. Madam President, our Nation faces grave challenges. We are looking at our fourth straight $1 trillion deficit, our credit rating has been downgraded, and public spending is out of control. The Nation demands leadership.

At some moments in our Nation's history--at moments of crisis--leaders have emerged, put partisanship aside, and worked to solve our greatest challenges. Although our current President has compared himself to both Franklin Roosevelt and Abraham Lincoln, his leadership is falling well short of their examples. Instead of taking the reins and making tough choices when presented with our current fiscal crisis, he has decided to put politics first. He always puts politics first.

Just this morning, at the National Prayer Breakfast, the President took what has always been a nonpartisan opportunity for national unity and used it to promote his political agenda. He suggested to the attendees that Jesus would have supported his latest tax-the-rich scheme. With due respect to the President, he ought to stick to public policy. I think most Americans would agree the Gospels are concerned with weightier matters than effective tax rates.

As long as the President has decided to assume the role of theologian-in-chief, he would do well to put tax policy aside and consider the impact of one of his latest ObamaCare mandates. Secretary Sebelius's decision to force religious institutions--over the strong objections of churches and universities representing millions and millions of Americans--to provide insurance coverage for abortifacient drugs and contraceptives to their employees will require these groups to violate their deepest held religious beliefs.

The President's comments this morning share more of a political strategy than they do the religious beliefs of most Americans. In 2008, the President declared his nomination was the world historical moment when the rise of the oceans began to slow and our planet began to heal. Someone needs to remind the President there was only one person who walked on water, and he did not occupy the Oval Office.

This drive to politicize every aspect of our institutions and public discourse took a serious and dangerous turn last month with the President's appointments to the Consumer Financial Protection Bureau--the CFPB--and to the National Labor Relations Board--the NLRB. Last week, in his State of the Union Address, President Obama said Americans deserve a government that plays by the rules. Yet his appointments of January 4, just 1 day into a 3-day Senate recess, failed to meet his own standard.

Those unlawful appointments are the latest example of how he is willing even to undermine the Constitution and weaken our government institutions to get what he wants. They are a deeply cynical political ploy that puts his own ideological wants and electoral needs above our Constitution and rule of law.

The Constitution, not the President's political agenda or reelection strategy, sets the rules we must live by and play by. In the regular order of the appointment process, the President nominates, but the Senate must consent for him to appoint. The President may not get his way every time, but this is one of many checks and balances in our system to make sure one part of the government does not gather too much power.

The Constitution also allows the President temporarily to fill ``vacancies that may happen during the recess of the Senate.'' These so-called recess appointments do not require Senate consent. However, they are supposed to be an exception to the confirmation rule. The most obvious requirement for a recess appointment is that there actually be a real recess. Needless to say, if the President alone can define a recess, he can make recess appointments during every weekend or lunch break. The exception would swallow the rule and the President could issue the Senate out of the process all together.

Our Constitution refers to the recess of the Senate, not to a recess of the President's imagination or his lawyers' creation. Under the Constitution, the Senate has the authority to determine its own procedural rules, including the what, when, and how long of Senate recesses.

I will not go into all the twists and turns of recess appointment history. However, for decades, the standard has been that a recess must be longer than 3 days for the President to make a recess appointment. The Constitution, for example, requires the consent of the House or Senate for the other body to adjourn for more than 3 days. The Congressional Directory, which is the official directory of Congress, defines a recess as ``a break in House or Senate proceedings of three or more days, excluding Sundays.'' The Senate's own Web site has the same definition.

The Clinton administration argued in 1993 that a recess must be longer than 3 days. The Clinton administration took that position. In 2010, the Obama administration's own Deputy Solicitor General said this to Chief Justice John Roberts when arguing before the Supreme Court: ``Our office has opined the recess has to be longer than three days.''

Let me repeat that. The Obama administration told the Supreme Court a recess must be longer than 3 days for the President to make a recess appointment.

The Democratic majority in this body has endorsed this same standard. On November 16, 2007, the majority leader said: ``The Senate will be coming in for pro forma situations during the Thanksgiving holiday to prevent recess appointments.''

The four brief sessions he scheduled chopped the Thanksgiving break into recesses of--you guessed it--3 days or less and so did the five sessions he scheduled during the Christmas break. This new tactic worked, and President Bush did not make another recess appointment for the rest of his Presidency.

There is no record that then-Senator Barack Obama objected to this tactic in any way. He did not criticize it as a gimmick. He did not opine that the President could still make recess appointments despite these pro forma sessions. He did not even suggest that pro forma sessions did anything other than create new, shorter recesses. That is, after all, the only way the pro forma sessions can block recess appointments.

As far as I can tell, Senator Obama fully supported his party using pro forma sessions to block recess appointments.

Finally, consider this. Our rule X-X-XI requires that pending nominations be sent back to the President whenever the Senate ``shall adjourn or take a recess for more than 30 days.'' Pursuing his strategy to prevent appointments during the August 2008 recess, the Democratic majority leader scheduled no less than 10 pro forma sessions during that period. As a result, because each pro forma session began a new recess of less than 30 days, the Senate executive clerk did not return any pending nominations to the President.

The standard here is clear: Pro forma sessions create new recesses. Read the Congressional Record. Each pro forma session begins with the words ``The Senate met'' and ends with the statement that ``The Senate stands in recess'' until a specific date and time. I don't know how much clearer it could possibly be. The Senate must adjourn for more than 3 days for a President to make a recess appointment. The Senate has endorsed this standard. The Democratic majority has endorsed this standard, Senator Barack Obama endorsed this standard, and President Barack Obama's administration has endorsed this standard. A new recess begins when a Senate session, even a pro forma session, ends.

But that was then; this is now. The Senate met on January 3, 2012, as the Constitution requires, to convene the second session of the 112th Congress. The Congressional Record states that the Senate adjourned at 12:02 until January 6, at 11 a.m. I know we see some fuzzy math here in Washington from time to time, but this is pretty simple. That was a 3-day recess, which was not long enough to allow a recess appointment.

The very next day, however, President Obama installed Richard Cordray as head of the Consumer Financial Protection Bureau and he also installed three members of the National Labor Relations Board. These appointments were clearly unlawful because a sufficient recess did not exist. These appointments violated the standard President Obama himself endorsed when he served in this body, and they violated the standard his own administration endorsed before the Supreme Court.

Senate Democrats routinely attacked President George W. Bush for supposedly creating what they called an imperial Presidency. That criticism was bogus for a host of reasons, but I can only imagine how the majority would have howled had President Bush made recess appointments the day after those pro forma sessions in 2007 and 2008. They would have denounced him for defying the Senate, for an unprecedented power grab, and for destroying the checks and balances that are so important in our form of government. They would have taken swift and firm measures in retaliation. Who knows, but they might even have gone to the Court over it. But President Bush respected the Senate and, whether he liked it or not, declined to make recess appointments when there was no legitimate recess.

President Obama apparently has no such regard for this body--one of which he was honored to be a Member. And to be clear, that means he has no such regard for the Constitution and its system of checks and balances. He only wants his way. His political mantra last fall, that he can't wait for Congress to enact his agenda, has now resulted in these politicized appointments that violate our deepest constitutional principles.

No doubt some on the other side of the aisle will respond that the Office of Legal Counsel at the Department of Justice has issued a memo justifying these recess appointments. Well, as Paul Harvey used to say, Here is the rest of the story. That memo was issued on January 6--2 days after President Obama made these unlawful recess appointments. I had understood OLC's rule as giving objective advice before decisions were made. Doing this after the fact looks as if it is a method of trying to justify, rather than inform, this controversial decision, especially when the memo admits that it addresses a novel issue with ``substantial arguments on each side.''

The most egregious flaw in the OLC memo is that it addresses the wrong question. The question OLC should have answered is why a pro forma session, like any other session, does not start a new recess. That is the real question here. OLC simply ignored that question entirely. And I am not at all surprised. The obvious answer is that a pro forma session does begin a new recess, and then OLC would have had to justify the President making a recess appointment during an unprecedented 3-day recess.

Rather than address that necessary question, the OLC memo instead addressed whether the President may make recess appointments during a longer recess that is ``punctuated by periodic pro forma sessions.'' I wish to know who made up this characterization of pro forma sessions as merely procedural punctuation marks, but a cliche like that is no substitute for a real legal argument.

If that is the most egregious flaw in the OLC memo, its most egregious omission might be failing even to mention, let alone explain away, the Obama administration's endorsement of the 3-day standard before the Supreme Court.

In 1996, the Clinton Office of Legal Counsel advised that making appointments during a 10-day recess would ``pose significant litigation risks.'' In this new memo, the Obama OLC admits that these appointments during only a 3-day recess ``creates some litigation risks.'' They admit that. The memo of course does not attempt to explain how appointments during an even shorter recess somehow pose less litigation risks. Either way, litigation may be where this controversy is headed. And I certainly hope so.

Just as our Democratic colleagues accused President Bush of creating an imperial Presidency, they accused his administration's Office of Legal Counsel of helping him to do it. They attacked OLC for being his advocate rather than an objective neutral adviser. Well, nothing OLC did for President Bush looked anything like what we see today. This memo reads like a brief by the President's personal lawyer. We all know Justice Department lawyers are not the President's personal lawyers.

When President Obama decided to make these appointments, the person who should have been the most outraged was the Senate majority leader. After all, as the highest ranking officer in the Chamber, he should have been particularly defensive of the rights and prerogatives of the Senate, and should have opposed any effort on the part of the Executive to undermine the Senate's role in the confirmation process.

Unfortunately, that is not what happened. Since the time the appointments were made, the Senate majority leader has, on multiple occasions, publicly endorsed the President's decision to ignore precedent and bypass the

Senate. He did so on television in mid-January and again this week here on this floor. The majority leader's decision to support and, indeed, applaud the President in this case is troubling, given that, as I mentioned a few minutes ago, it was under his leadership that the Senate began to use pro forma sessions for the specific purpose of preventing President Bush from making recess appointments.

The majority leader has acknowledged this to some extent, but his explanation as to why he is taking these apparently contradictory positions is unclear and somewhat hard to follow. We need a better explanation from the majority leader, because from the vantage point of many here in the Chamber it appears that his position on the efficacy of pro forma sessions and the constitutionality of recess appointments varies depending upon who is occupying the White House. No leader in this body should ignore this question. And, frankly, our leaders should be standing for the Senate against the White House on this matter.

Well, I hope that it isn't true that the constitutionality of recess appointments varies depending on who is occupying the White House. I hope I have simply misinterpreted what appears to be plain statements, both past and present, on the part of the majority leader. That is why I, along with 33 of my colleagues, have submitted a letter to the majority leader asking him to clarify his position on these appointments. Specifically, the letter asks him to state whether he believes the pro forma sessions have any impact on the President's recess appointment power.

It also asks him to clarify whether he believes President Bush had the constitutional authority to make recess appointments like the ones recently made by President Obama and why, if he believes these recent appointments are constitutional, he instituted the practice of using pro forma sessions in the first place. Why did he do that?

Finally, the letter asks the majority leader to state specifically whether he agrees with the President's legal argument that the Senate was unavailable to perform its advice and consent functions during the recent adjournment period.

I ask unanimous consent to have printed in the Record a copy of the letter, signed by 33 Senators.

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Mr. HATCH. These so-called recess appointments were unlawful because there was no legitimate recess in which they could be made.

There are many disagreements about policy and political issues. That is to be expected. But the integrity of our system of government requires that even the President must, as he said in the State of the Union Address, play by the rules. President Obama broke the rules in order to install the individuals he wanted. That action weakened the Constitution, our system of checks and balances, as well as both the Senate and the Presidency.

Madam President, I suggest the absence of a quorum.

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