Recess Appointments

Floor Speech

Mr. PAUL. Mr. President, I rise today in defense of the Constitution. I rise today to condemn the President for making appointments that are unconstitutional and illegal. Recently the President appointed members to the National Labor Relations Board and to the Consumer Financial Protection Agency. He did so by saying we were in recess.

This is news to us because those of us in the Senate maintain that we were never in recess. The President has usurped a power never previously taken by a President and has decided unilaterally that he gets to decide when we are in recess. These appointments are illegal and unconstitutional, and I am surprised--I am surprised--that no member of the majority party has stood to tell the President so.

I am not surprised that the President has engaged in unconstitutional behavior. His health care law is brazenly unconstitutional. His war with Libya was unconstitutional. He got no congressional authority. So, for a man who once gave lip service to the Constitution, the President now has become a President who is prone to lawlessness and prone to unconstitutional behavior.

Our Founders clearly intended that the President have the ability and the power to appoint advisers, but they also separated that power and gave power to the Senate to advise and consent on these high-ranking officers in government. The President has gone an end-around on this and has done something that breaks with historical precedent. It goes against the notion of checks and balances.

In fact, the notion that underlies the whole idea of recess appointments is mostly a historic relic. Alexander Hamilton explained in Federalist 67 that the power was included so the Senate did not have to remain in session year round to deal with nominations. This was also done at a time when Congress would go out of session for months at a time for members to return to their farms and their businesses. Now Congress meets nearly year round.

So, in other words, recess appointments should only happen rarely, in extreme occurrences, if at all. There also should be agreement that we are in recess, and there is no disagreement that we were in recess.

There is a lot of talk about bipartisan cooperation on the other side of the aisle, but I am disappointed that not one Senator has stood to tell the President this sets a terrible precedent; that this is a usurpation of power that is bad for the country and bad for the idea of checks and balances. I am disappointed that not one Senator from the other side of the aisle has stood to oppose this President on this unconstitutional power grab. This is an opportunity for us to stand together in defense of the Constitution.

I state now, unequivocally, if a Republican President tries to usurp his power, if a Republican President tries to define a recess and appoint people illegally, I will stand on the Senate floor and oppose him. This is not about being a Republican or a Democrat, it is about having respect for the Constitution. These lawless, illegal, and unconstitutional appointments fly in the face of the respect for our Constitution. This is an issue of separation of powers, of constitutional authority, and of Senate prerogative. It is sad that not one member of the opposition party will stand for the Constitution, will stand to the President.

Make no mistake, this is a huge breach of precedent. If the President is allowed to determine when we are in recess, nothing prevents him from making recess appointments this evening at 8 o'clock or on the weekends. If this precedent is allowed to stand, nothing stops the President from appointing a Supreme Court Justice tonight at 8 o'clock. Is that the kind of lawlessness we want in our country? Are we going to completely abandon the advise-and-consent role of the Constitution and of the Senate?

I ask today, is there not one Senator from across the aisle who will stand against this unconstitutional power grab? Is there not one Senator from across the aisle who will say to the President that these illegal appointments set a terrible precedent; that these appointments will encourage lawlessness; that these appointments eviscerate the advise-and-consent clause of the Constitution? I ask my colleagues from across the aisle: Where is your concern for the checks and balances? Where is your concern for the Constitution?

I am greatly saddened by this action, and I hope the President will reverse course. I hope the majority party in the Senate will stand for the Constitution. But I am greatly disappointed in where we are in this debate.
I yield back my time.

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