Moving Ahead for Progress in the 21st Century Act

Floor Speech

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RECESS APPOINTMENTS

Mr. WICKER. Mr. President, I came to the floor previously to speak about President Obama's unconstitutional appointments of Richard Cordray as Director of the Consumer Financial Protection Bureau and of three new members to the National Labor Relations Board. I spoke about why this blatant overstep of executive authority violates the President's right to make recess appointments under article II, section 2 of the Constitution. I described its unequivocal reversal of years of precedent which the Obama Justice Department's Office of Legal Council has since defended, essentially stating that pro forma sessions no longer matter.

This issue is far from over. We cannot allow it simply to go away and the illegal appointments must eventually be set aside.

The 23-page Justice Department opinion, written by Assistant Attorney General Virginia A. Seitz, wrongly advises that, despite the convening of pro forma sessions, the President ``has discretion to conclude that the Senate is unavailable to perform its advise-and-consent function and to exercise his power to make recess appointments.'' Under this misguided opinion, the Obama administration is suggesting that the executive branch--not Congress--can determine when the legislative branch is in session. The egregious overreach undermines the checks and balances at the very heart of our Constitution.

I am deeply concerned that this presumptuous action by the President poses profound and dangerous implications. As others have suggested, President Obama's abuse of his recess appointment power could lead to unilateral ``recess'' appointments anytime, such as during lunch or in the middle of the night. This is not that far fetched.

As I said before, it is my hope that both parties will rise to defend the separated powers our Founders put in place to prevent tyranny and the misuse of authority.

It is worth repeating that the controversy surrounding the President's non-recess appointments has nothing to do with the personal character of Mr. Cordray or of those named to the National Labor Relations Board. Nor is the debate over appointments when the Senate is in recess. What the President has done transcends party issues and ideological divides.

A day after the appointments were made, former attorney general Edwin Meese III and former Office of Legal Counsel lawyer Todd Gaziano wrote in the Washington Post that President Obama's move is ``a constitutional abuse of a high order.'' It challenges 225 years of executive practice.

The Constitution is very clear in its delegation of powers. It explicitly grants the Senate the exclusive responsibility to give ``advice and consent'' on treaties and nominations. It endows the President with the right to fill vacancies when the Senate is not in session--a provision conceived by the Framers as a way to keep the government operational when the ability of Senators to communicate with the executive branch and travel back to the Capitol took much longer than today.

Of course, it is disappointing that President Obama has dismissed the will of the Senate, which rejected Mr. Cordray's nomination in December.

But never before has a President assumed the authority to issue recess appointments when the Senate is not in recess. In doing so, the President is violating the Constitution plain and simple, and invalidating the legitimacy of his appointees. It stands to reason that any decisions of the CFPB or NLRB will be subject to the same shroud of unconstitutionality and legal contest.

The Constitution and nearly a century of legal opinion provide a solid basis for determining the parameters of what qualifies as a legislative ``recess,'' which is required for the President to invoke his appointment privileges.

Under Article section 5, clause 4 of the Constitution, the House of Representatives must grant its consent in order for the Senate to adjourn longer than 3 days. The Senate must do the same for the House.

It is an undisputed fact that the House of Representatives did not give this chamber that consent and, in keeping with the Constitution, this Senate did not adjourn for more than 3 days.

The President's claim that a brief adjournment can be called a ``recess'' goes against 90 years of legal opinion. In 1921, President Harding's Attorney General Harry M. Daugherty had this to say about what defines a recess: ``[N]o one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment [of two days] is taken. Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution.''

Since then, Attorneys General and Presidents of both parties have agreed that at least 10 days should pass before a recess is acknowledged.

And yet, as we are aware, there were not 10 days of adjournment when President Obama made his four appointments. We were holding pro forma sessions--proceeding just as the Senate did in 2007, when Majority Leader REID wanted to block President Bush from making recess appointments--and succeeded in doing so. As Edwin Meese and Todd Gaziano acknowledged in their op-ed, ``Reid was right, whether or not his tactics were justified.''

Michael McConnell, a former Federal judge and director of the Constitutional Law Center at Stanford Law School, came to the same conclusion. Last month, he wrote in the Wall Street Journal:

Several years ago--under the leadership of Harry Reid and with the vote of then-Sen. Obama--the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It is appalling that the Obama administration would call into question the entire legitimacy of pro forma sessions when, less than two weeks before the appointments, the President signed into law the payroll tax extension that the Senate had passed in such a session.

What makes the business conducted during the pro forma session on Dec. 23 any different from the pro forma sessions that came just days after? Based on this case, it appears the validity of a Senate session is subject to the President's whim. He signs legislation passed in one pro forma session. He concludes that another pro forma session did not exist at all.

In the same op-ed to the Washington Post, Edwin Meese and Todd Gaziano concluded:

If Congress does not resist, the injury is not just to its branch but ultimately to the people. [And that is what is important.] James Madison made clear that the separation of powers was not to protect government officials' power for their sake but as a vital check on behalf of individual liberty.

Indeed, the forefathers of this country were candid about the crucial link between the separation of powers and freedom itself.

As Madison wrote in essay No. 48 of The Federalist:

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

As elected public servants, we are bound by our oath of office to uphold and preserve the principles of the Constitution.

To do that, we must guard the sanctity of the decisions made and privileges held by this chamber. Our government's separation of powers is not an antiquated idea but a timeless safeguard to liberty.

In 1985, Sen. Byrd, the Democratic Majority Leader from West Virginia, wrote in a letter to President Reagan:

Recess appointments should be limited to circumstances when the Senate, by reason of a protracted recess, is incapable of confirming a vitally needed public officer. Any other interpretation of the Recess Appointments clause could be seen as a deliberate effort to circumvent the Constitutional responsibility of the Senate to advise and consent to such appointments.

Where are the Robert Byrds today?

Those who served before us provided precedent and wisdom to address our problems today. They defended the constitutional duties we are now entrusted to protect. Is there not one Democratic Senator who will step forward to defend the constitutional principle of separation of powers?

The President has made no secret of his contempt for Congress in recent months. His campaign rhetoric is heavy with ``do-nothing'' accusations.

The President is certainly free to engage in election-year hyperbole. But he is not free to overstep the constitutional limits of his office.

I can think of a number of other priorities demanding our undivided attention right now--fixing the economy and putting Americans back to work are top among them. Yet in order to address these challenges, we need a working relationship between the legislative and executive branches. The President's power grab undermines the very constitutional foundation of this relationship.

I urge Members from both sides of the aisle to call for President Obama to rescind these appointments. Regardless of our party allegiances, we are united by a pledge to serve the American people. That is what motivated Robert Byrd earlier, and it is what ought to motivate us today. Keeping that promise means standing for the sanctity of our country's founding document and the integrity of this institution.

I thank the Chair.

I yield the floor and note the absence of a quorum.

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