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EXECUTIVE OVERREACH: THE PRESIDENT’S 

UNPRECEDENTED ‘‘RECESS’’ APPOINTMENTS 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

SECOND SESSION 

FEBRUARY 15, 2012 

Serial No. 112–84 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

MARK AMODEI, Nevada 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

JARED POLIS, Colorado 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

(III) 

C O N T E N T S 

FEBRUARY 15, 2012 

Page 

OPENING STATEMENTS 

The Honorable Lamar Smith, a Representative in Congress from the State 

of Texas, and Chairman, Committee on the Judiciary ..................................... 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 2 

The Honorable Trent Franks, a Representative in Congress from the State 

of Arizona, and Member, Committee on the Judiciary ..................................... 4 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Committee on the Judiciary ................................. 5 

WITNESSES 

Charles J. Cooper, Partner, Cooper & Kirk, PLLC 

Oral Testimony ..................................................................................................... 7 

Prepared Statement ............................................................................................. 10 

John P. Elwood, Vinson & Elkins 

Oral Testimony ..................................................................................................... 20 

Prepared Statement ............................................................................................. 23 

Jonathan Turley, Shapiro Professor of Public Law, George Washington University 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 38 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary ......................................................................................................................... 58

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 

Prepared Statement of the Honorable Lamar Smith, a Representative 

in Congress from the State of Texas, and Chairman, Committee on 

the Judiciary ................................................................................................. 91 

Letter to the Honorable Eric H. Holder, Jr., Attorney General, U.S. 

Department of Justice .................................................................................. 93 

Wall Street Journal article titled ‘‘Democrats and Executive Overreach,’’ 

January 20, 2012 .......................................................................................... 96 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary 

Prepared Statement of the Honorable Trent Franks, a Representative 

in Congress from the State of Arizona, and Member, Committee on 

the Judiciary ................................................................................................. 98 

Page

IV 

Material submitted by the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary—Continued 

Letter from Corrine M. Stevens, Senior Director, Legislative Affairs, Associated Builders and Contractors, Inc. (ABC) ........................................... 99 

Letter from the Honorable W. Todd Akin, a Representative in Congress 

from the State of Missouri ................................................................................... 101 

Letter from the Honorable Todd Rokita, a Representative in Congress from 

the State of Indiana ............................................................................................. 102 

Material submitted by the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary 

Letter to the Honorable Barack Obama, from the Honorable Mitch 

McConnell, Republican Leader; and Richard Shelby, United States Senator ................................................................................................................. 106 

USA Today article titled ‘‘Senate politics shut down some agencies,’’ 

by Gregory Korte, December 28, 2011 ........................................................ 110 

(1) 

EXECUTIVE OVERREACH: THE PRESIDENT’S 

UNPRECEDENTED ‘‘RECESS’’ APPOINTMENTS 

WEDNESDAY, FEBRUARY 15, 2012 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Committee met, pursuant to call, at 10:11 a.m., in room 

2141, Rayburn Office Building, the Honorable Lamar Smith (Chairman of the Committee) presiding. 

Present: Representatives Smith, Sensenbenner, Coble, Gallegly, 

Goodlatte, Lungren, Chabot, King, Franks, Gohmert, Poe, Griffin, 

Marino, Gowdy, Adams, Quayle, Conyers, Nadler, Scott, Watt, 

Jackson Lee, Waters, Johnson, and Quigley. 

Staff present: (Majority) Zachary Somers, Counsel; Travis Norton, Counsel; (Minority) Aaron Hiller, Counsel; and Danielle 

Brown, Counsel. 

Mr. SMITH. The Judiciary Committee will come to order. Without 

objection, the Chair is authorized to declare recesses of the Committee at any time. 

We welcome everyone here today on an important subject. I am 

going to recognize myself for an opening statement, and then several other Members. And then we will proceed to testimony and 

then questions. 

On January 4, the President announced his unprecedented appointments of three individuals to the National Labor Relations 

Board, and Richard Cordray as Director of the Consumer Financial 

Protection Bureau. These appointments go well beyond past Presidential practice and raise serious constitutional concerns. 

The Constitution provides the President with the authority to, 

quote, Fill up all vacancies that may happen during the recess of 

the Senate, end quote. However, the President’s recent appointments were made at a time when the Senate was demonstrably not 

in recess. 

During this supposed recess, the Senate passed one of the President’s leading legislative priorities, a temporary extension of the 

payroll tax cut. It also discharged its constitutional obligation to 

come into session beginning on January 3 of every year. 

Moreover, the Senate, itself, which has the power under Article 

I, Section 5 of the Constitution, to determine the rules of its proceedings, did not believe it was in recess when these appointments 

were made. As Senator Majority Leader Reid stated on the Senate 

floor regarding a similar period in 2007, quote, The Senate will be 

2 

coming in for pro forma sessions to prevent recess appointments, 

end quote. 

What was acceptable in 2007 should be equally acceptable today. 

In fact, not only was the Senate not in recess when the President 

made these appointments, but it appears that under the Constitution, it legally could not have been. The Constitution provides that 

neither house of Congress may adjourn for more than 3 consecutive 

days without the consent of the other house. Accordingly, the Senate could not have adjourned its session and gone into recess without the consent of the House, which the House did not give. 

Despite these facts, the President claimed the unilateral authority to declare that the Senate is in recess for purposes of the Recess 

Appointments Clause. Such an astounding assertion of power 

raises serious constitutional concerns, and has the potential to adversely affect the balance of power between the President and the 

Congress. Regrettably, these appointments are part of a pattern of 

the President bypassing Congress and asserting executive power 

past constitutional and customary limits. For example, when the 

President’s cap-and-trade legislation failed to pass Congress, he 

had the Environmental Protection Agency issue equivalent regulations instead. When Congress refused to enact the President’s card 

check legislation, doing away with secret ballots in union elections, 

the President’s National Labor Relations Board announced it was 

going to impose the change by administrative decree. And when 

Congress defeated the Dream Act, the President’s illegal immigration amnesty proposal, the Administration instructed immigration 

officials to adopt enforcement measures that often bring about the 

same result as the Dream Act. 

In addition to disrespecting Congress’s constitutional authority 

when Congress has refused to enact his policy preferences, the 

President has also ignored laws passed by Congress. For instance, 

rather than seeking legislative repeal of the Defensive Marriage 

Act, the President simply instructed his Justice Department to stop 

defending its constitutionality. And the President ignored the Religious Freedom Restoration Act by failing to give religious organizations an exemption from the Health and Human Services contraceptive mandate. 

One of the fundamental principles of American democracy is that 

we are a Nation of laws. America’s elected leaders swear to follow 

our Constitution and our statutes even when they do not agree 

with them. With these recess appointments, the President may 

have violated the Constitution by disregarding the rule of law. 

That concludes my opening statement. And the gentleman from 

Michigan, the Ranking Member, Mr. Conyers, is recognized for his. 

Mr. CONYERS. Thank you, Chairman Smith, and to our distinguished witnesses and Members of the Committee. I am always allowed to present a view frequently considerably different from the 

one of the Chairman, and I will proceed to do so now. 

The Framers included recess appointment clause in the Article 

II of the Constitution to ensure that government continues to function when the Senate is unavailable to confirm Executive nominees. Our Founding Fathers knew that the failure to appoint leaders to key executive branch agencies could result in real harm to 

the American people. 

3 

Until recently, very recently, I thought even the leadership of the 

Senate minority, the distinguished Senator from Kentucky, agreed 

with me on that point. I happen to have the letter in which he did 

so in writing with me at this point. But also consider the words of 

the distinguished Senator from Arizona, John Kyl, on the floor of 

the Senate in February of 2005: ‘‘When someone is qualified and 

has the confidence of the President, unless there is some highly 

disqualifying factor brought to our attention, we should accede to 

the President’s request for his nomination, and confirm the individual.’’ The senior Senator from Kansas, Senator Pat Roberts, expressed a similar idea with respect to judicial nominees. 

The American people are paying for fully staffed courts and are 

getting obstructionism and vacant benches. Reckless behavior such 

as this is irresponsible and a waste of taxpayers’ dollars. 

And so the title given to this hearing suggests that some of my 

colleagues may have already determined the validity of President 

Obama’s January 4 recess appointments. But a fair discussion 

ought to include the context for the Administration’s decision to invoke the recess appointments clause of the United States Constitution; namely, unprecedented obstruction in the United States Senate itself. 

Failure to consider admittedly qualified candidates threatens 

real harm to the American people. And I have two documents that 

go to the troubling nature of the Senate minority and its complete 

unwillingness to consider qualified nominees of either party. 

The first is a letter to President Obama, signed by 44 Members 

of the Senate, all Republicans, including the two I quoted earlier, 

stating that they will not support the consideration of any nominee, 

regardless of party affiliation. 

To the CFPB director, it is very simple. They decided to take the 

new Consumer Financial Protection Bureau hostage, they don’t like 

the CFPB, which is their right, and demand that the finance industry have more influence over an agency designed to curb abuses in 

the finance industry. 

The second is a ‘‘USA Today’’ article, dated December 28, 2011, 

in which the official historian of the United States Senate, Don 

Ritchie, states that never before in the history of the Senate have 

a handful of senators blocked a nominee to shut down an agency’s 

business. He states, ‘‘We haven’t found any precedent for making 

an agency powerless by not confirming anyone to run it.’’ It is 

worth discussing the nature of the two agencies that the Senate 

minority seems to want to shut down through inaction. 

You know the Consumer Financial Protection Bureau is a product of the Dodd-Frank legislation passed recently. The agency is an 

independent watchdog, working on behalf of American consumers, 

to curb unfair, deceptive, and abusive financial practices, to reign 

in predatory payday loans, to safeguard against abusive debt collection, and to monitor private student lenders non-bank mortgage 

companies and other institutions. 

The National Labor Relations Board helps working Americans to 

form unions and to bargain collectively for fair wages and safe 

working conditions. And it is also a fair and public venue for working out disputes between labor and management. 

4 

So I believe these two functions, Mr. Chairman, enforcing a set 

of basic protections for American consumers, maintaining a level 

playing field for American workers, are vital to our economy and 

to the security of the American middle class. And so I hope to hear 

from our witnesses about these issues that you and I have raised. 

I thank you for the time. 

Mr. SMITH. Thank you, Mr. Conyers. 

The gentleman from Arizona, Mr. Franks, the Chairman of the 

Constitution Subcommittee, is recognized for an opening statement. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, no one questions that when the Senate is in recess the President does, indeed, have the authority to make recess 

appointments. That power is clearly set forth in the Constitution. 

Further, no one questions that recess appointments have always 

been controversial. Presidents of both political parties have made 

politically unpopular recess appointments. And no one questions 

whether it can be frustrating to try to get nominees through the 

Senate. Senate-delaying tactics have stalled nominees on both sides 

of the aisle. But never before in this country’s history has a President made a recess appointment during a time when the Senate 

was not actually in recess. To quote former Attorney General 

Meese, ‘‘It is a constitutional abuse of a high order.’’ 

In 2007, Mr. Chairman, Senate Majority Leader Reid and Senate 

Democrats, which at the time included then Senator Obama, adopted the practice of holding pro forma sessions, rather than adjourning, to block President Bush’s ability to make recess appointments. 

The President must think that the rules he and his Senate democrat colleagues developed to hamstring President Bush do not 

apply to him. But it is an axiom of democratic government that the 

same rules apply no matter who holds office. 

And Mr. Chairman, just as an aside here, I know the witnesses 

will address the issue that some of the laws that were passed in 

pro forma session were considered legal even by the Administration. And it blows my mind to think that both the recess appointments can be in recess and that those pro forma laws can be valid 

at the same time. 

Thus, although the President may object to the Senate’s practice 

of holding pro forma session instead of recessing, he may not simply ignore the factual realities and make recess appointments when 

the Senate is not in recess. Even President Bush, who my friends 

on the other side of the aisle assailed for taking unilateral executive action, refused to provoke a constitutional crisis by making recess appointments while the Senate was meeting regularly in pro 

forma session. 

The President’s supporters may argue that the President sought 

the Justice Department’s advice before making these appointments, 

and that the Department advised him that the appointments were 

permissible. Leaving aside the fact that the legal memo supporting 

the President’s appointments was belatedly issued 2 days after the 

appointments were announced. The President, by his own words, 

has acknowledged that the reason he appointed these individuals 

had nothing to do with the only justification the Justice Department offered in support of his exercise of power. 

5 

The Justice Department asserted that the President has the authority to determine that the Senate is ‘‘unavailable to perform its 

advice and consent function, and to exercise its power to make recess appointments.’’ Yet, in making these appointments, Mr. Chairman, the President did not determine that the Senate was unavailable to confirm his nominees. He determined that the Senate was 

unwilling to confirm them. 

In fact, in appointing Mr. Cordray, the President declared, ‘‘I 

refuse to take no for an answer.’’ Mr. Chairman, just as the President has refused to take no for an answer, Congress should refuse 

to accept the legality of these illegal appointments. If these appointments are allowed to stand unchallenged, they will threaten 

the bedrock principle of separation of powers that lies at the base 

of our constitutional republic. 

By circumventing the Senate’s advice and consent role, the President is concentrating the power of appointment in the executive 

branch alone. However, as James Madison recognized, The accumulation of all powers, legislative, executive and judiciary, in the 

same hands, whether of one, a few, or many, may justly be pronounced the very definition of tyranny.’’ 

And with that, Mr. Chairman, I yield back. 

Mr. SMITH. Thank you, Mr. Franks. 

The gentleman from New York, Mr. Nadler, the Ranking Member of the Constitution Subcommittee, is recognized for an opening 

statement. 

Mr. NADLER. Thank you, Mr. Chairman. 

Clashes between the branches of government are not unknown in 

our constitutional history. And this one is a classic one. It starts 

off with, in my view, improper exercise of power by the Senate, or 

by the Senate minority, and for the first time in American history, 

refusing to confirm people not on the grounds of the qualifications 

of the people, of the appointees, or the nominees, I should say, but 

by asserting that we don’t like the law that was passed, and unless 

the law is changed, we will confirm nobody. We will nullify the effect of the law by refusing to confirm anyone to execute the law. 

This is an invasion of the prerogatives of the Congress that 

passed the law, and of the obligation of the Executive to enforce the 

law, because it destroys the ability of the Executive to enforce the 

law, and is intended by its terms and by the statements of the minority leadership of the Senate to do just that. That was its purpose. 

The Consumer Financial Protection Board shall not be allowed to 

function until its structure is changed in a way that we don’t have 

the votes to change it, is essentially what the minority leadership 

of the Senate said. Confronted by that, the Executive perhaps overreached by making these recess appointments. 

Now, I object to the title of the hearing, ‘‘Executive Overreach: 

The President’s Unprecedented Recess Appointments.’’ Whether 

there was executive overreach is a matter that will be determined 

by the courts. You can make a good case either way, frankly. 

One of our witnesses, I was just glancing over his testimony, 

quotes from a report of the Senate Judiciary Committee from over 

a century ago, in which it essentially agrees with the current Administration’s interpretation. And it says, ‘‘The recess power 

6 

means, in our judgment, the period of time when the Senate is not 

sitting in regular or extraordinary sessions, the branch of the Congress, during extraordinary session for the discharge of executive 

functions, when its Members owe no duty of attendance, when its 

chamber is empty, when, because of its absence it cannot receive 

communications from the President, or participate as a body in 

making appointments.’’ 

That is an interpretation by the Senate Judiciary Committee 

over 100 years ago. And if that is accepted, then the President was 

justified in making these recess appointments, because the pro 

forma sessions of the Senate were just that. The Senate was not 

capable of acting, should it wish to do so, on the President’s nominations, by design, and its pro forma sessions only intended to frustrate the President’s exercise of his constitutional power without, 

in fact, giving the Senate power to consider those nominations at 

that time. 

That interpretation would make the President’s actions completely justified. Whether the Supreme Court will agree with that 

interpretation or with the contrary interpretation, as I said, I think 

there is good law on both sides. We will see. I am not clear about 

the purpose of this hearing, since I have heard no one suggest that 

the House of Representatives can do anything about this, other 

than make statements and give opinions. 

I do think that we have a constitutional problem when a minority in the Senate takes it upon itself to rule against the will of the 

majority and to try to nullify laws by simply not confirming people, 

regardless of their qualifications, and stating so, unless the law is 

changed. And when confronted by that unconstitutional, in my 

opinion, Senate overreach, it is not surprising the Executive would 

use what weapons it has in its armory. And we are considering the 

consequences of that. But we really should be considering the entire question of how do you deal with a minority that seeks to act 

as the majority, and to frustrate the will of the majority and of the 

Executive in unprecedented ways, and seeks to nullify the law. And 

that, it seems to me, is the larger question here. And this question 

is a consequence of those actions. 

I thank you. And I yield back. 

Mr. SMITH. I thank you, Mr. Nadler. We have a distinguished 

panel of witnesses today. And let me proceed to introduce them. 

Our first witness is Charles Cooper, a partner in the law firm of 

Cooper & Kirk. In 1985, Mr. Cooper was appointed Assistant Attorney General for the Office of Legal Counsel by President Reagan. 

Additionally, after attending the University of Alabama School of 

Law, where he finished first in his class, he served as a law clerk 

to Chief Justice Rehnquist. Mr. Cooper has been named one of the 

10 best civil litigators in Washington, D.C. 

Our second witness is John Elwood, a partner at Vinson & Elkins. Before joining Vincent & Elkins, Mr. Elwood served in several 

senior positions at the Justice Department, including as Deputy 

Assistant Attorney General, in the Office of Legal Counsel, and as 

an assistant to the Solicitor General. In addition, Mr. Elwood, a 

graduate of Yale Law School, served as a law clerk to Justice Kennedy. 

7 

Our final witness is Jonathan Turley, the Shapiro Professor of 

Public Interest Law, at the George Washington University Law 

School. Professor Turley, an alumnus of Northwestern University 

Law School, is a nationally recognized legal scholar, who has written extensively in areas ranging from constitutional law, to legal 

theory, to tort law. He has been recognized as the second most 

cited law professor in the country. 

We welcome you all. I look forward to your testimony. And just 

as a reminder, there is a 5-minute limit on the testimony. But 

whatever is not stated, we can put into the record. So we will proceed. 

Mr. Cooper, will you start us off? 

TESTIMONY OF CHARLES J. COOPER, PARTNER, 

COOPER & KIRK, PLLC 

Mr. COOPER. Thank you very much, Chairman Smith. And good 

morning Ranking Member Conyers, Members of the Committee. I 

appreciate very much the Committee’s invitation to testify this 

morning on this very important separation of powers issue. And I 

am especially honored to be in the company of these distinguished 

panelists, Professor Turley and Mr. Elwood. 

The issue that is at the heart of the Committee’s constitutional 

inquiry this morning is whether the Senate was in continuous recess from December 17 to January 23, last, during the holiday 

break. The Administration, in an opinion authored by the Office of 

Legal Counsel, takes the position that it was, despite the fact that 

the Senate repeatedly gaveled itself into pro forma session, and, in 

fact, passed legislation during one of those sessions. 

In my view, the Senate was not continuously in recess during 

that period, and the January 4 recess appointments, therefore, exceeded the President’s authority under the recess appointment 

clause. 

OLC’s legal argument rests entirely on the conclusion that even 

as the Senate held pro forma sessions, and passed legislation during one of them, it remained in recess. Now, that view, I believe, 

is unsustainable for three key reasons. There are more, but there 

are three I will mention this morning. 

The first and threshold reason to conclude that the Senate was 

not in continuous recess is that the Senate says so. The Constitution’s rulemaking clause commits to each house of Congress the 

power to determine the rules of its proceedings. And rules governing when and how a house of Congress determines whether it 

adjourns or meets are quintessential rules of proceedings. Because 

the rulemaking power commits that authority and the interpretation of that authority, to the Senate’s judgments, the Senate’s holding of repeated pro forma sessions between December 17 and January 23, in my opinion, should end the matter. 

Second, there is a firmly established practice of using pro forma 

sessions to satisfy other constitutional requirements requiring that 

the bodies of Congress be in session. For example, the Senate has 

repeatedly held pro forma sessions to comply with Article I, Section 

5’s requirement that it not adjourn for more than 3 days without 

the consent of this body. 

8 

Congress also uses pro forma sessions to satisfy the 20th Amendment’s requirement that it meet at noon on January 3 every year 

to start a new session of Congress, unless a different time is established by statute. And it is very difficult to see how the Senate can 

be in session for purposes of satisfying one constitutional provision, 

while in recess for purposes of the other constitutional provision. 

And I would like to add this point, which isn’t in my written testimony. But by treating the January 4 appointments as occurring 

during an intra-session recess, rather than an intersession recess, 

OLC tacitly acknowledged that the Senate’s January 3 pro forma 

session started a new session of Congress, as that word is used in 

the recess appointment clause. 

And since recess appointee’s commissions constitutionally expire 

at the end of the next session of Congress, under the recess appointment clause, that approach allows the President’s appointees 

to serve until the end of 2013, rather than the end of 2012. So in 

that way, OLC’s treatment of the January 3 pro forma session of 

the Senate is really schizophrenic. They have determined that it is 

sufficient to start a new session, as that term is used in the recess 

appointment clause, but inadequate to end a recess under that 

same recess appointment clause. 

Now OLC rejects all of these arguments and relies, instead, on 

what it says is the purpose of the recess appointment clause. In its 

words, to provide a method of appointment when the Senate is unavailable to provide advice and consent. So OLC says the pro forma 

sessions are essentially a sham, and that the President has discretion to ignore them. 

But that assertion collapses under the weight of one inconvenient 

truth. At one of those pro forma sessions, on December 23, the Senate and the House of Representatives actually passed legislation, 

the 2-month extension of the payroll tax cut, which the President 

promptly signed into law. So in passing that payroll tax cut extension bill, the Senate acted by unanimous consent, the very same 

procedure by which the vast majority of Federal nominees are confirmed. 

If the Senate is available to pass legislation by unanimous consent during a pro forma session, then it is surely available to confirm the President’s nominees by the same procedure. The OLC 

opinion answers that, in fact, the simple fact that the Senate is 

able to act during its pro forma sessions is irrelevant in light of the 

fact that the President may properly rely, according to OLC, on 

public pronouncements that the Senate will not conduct business 

during pro forma sessions. There are several problems with that 

argument, I submit, but I want to highlight just two in the few moments that I have remaining. 

First, by the time the President made the recess appointments 

at issue here, on January 4, the Senate had itself repudiated the 

no-business pronouncement that it made when it scheduled those 

pro forma sessions. And it is difficult to see how the President can 

rely on a public pronouncement by the Senate that the Senate 

itself has previously repudiated. 

The second point is this: The President did not, in fact, rely on 

the no-business public pronouncements. It was the President who 

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9 

tension during the holiday recess and in pro forma session. And it 

was the President who promptly signed it into law. The President 

is not entitled both to rely upon the no-business public pronouncement and to ignore it, as he pleases. 

The short of my testimony, Mr. Chairman, is that the President’s 

January 4 recess appointments, in truth, had nothing to do with 

whether the Senate was available to act, and everything to do with 

the Senate’s unwillingness to confirm the President’s nominees. 

And regardless of whether you think the President, in this instance, sought to exceed his power for good or for ill, I would submit that it is Congress’s responsibility, its constitutional responsibility, to resist this constitutional excess of his authority. 

Thank you very much. 

[The prepared statement of Mr. Cooper follows:] 

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Mr. SMITH. Thank you, Mr. Cooper. 

Mr. Elwood? 

TESTIMONY OF JOHN P. ELWOOD, VINSON & ELKINS 

Mr. ELWOOD. Mr. Chairman, Ranking Member Conyers, thank 

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ing, and present my thoughts on the constitutionality of the President’s January 4 recess appointments. I will confine my prepared 

remarks this morning to the question of their constitutionality, not 

whether they were advisable or appropriate, as a matter of comity, 

between the branches of government. 

The executive branch and the Senate have long used a practical 

and functional test to determine when the Senate is in recess for 

purposes of the President’s recess appointment authority. As Congressman Nadler noted, the Senate Judiciary Committee wrote in 

an authoritative 1905 report that the Framers meant the word recess ‘‘Should mean something real, not something imaginary. 

Something actual. Not something fictitious. They used the word as 

the mass of mankind then understood it and now understand it. It 

means the period of time when the Senate is not sitting in regular 

or extraordinary session as a branch of the Congress, when its 

Members owe no duty of attendance when its chamber is empty.’’ 

Based on the language of the Senate orders creating the recess, 

I believe the President reasonably concluded that the Pro Forma 

sessions held around the time of the appointments did not interrupt the ongoing recess of the Senate. 

The recess order specified that the Senate would hold ‘‘Pro forma 

sessions only, with no business conducted.’’ As the name ‘‘pro 

forma’’ makes clear, the sessions had only the form and not the 

substance of a legislative session. The Senate has held scores of pro 

forma sessions during 22 recesses since the procedure was first 

used in November 2007 to prevent recess appointments. Overwhelmingly, each session has lasted only about 30 seconds, and 

true to the terms of the recess orders, no business has been conducted. 

The Senate’s other actions confirmed that they were in recess at 

the time. Before this recess, the Senate put in place a special mechanism for what the Senate procedure manual calls recess appointments to commissions, committees, and boards, reflecting recognition both that normal procedures wouldn’t work, because of the recess, and that it is important to keep positions filled. 

Under the circumstances, the ‘‘mass of mankind’’ would conclude 

that the Senate remained in recess, despite the pro forma sessions. 

And, indeed, the public statements of senators reflect their belief 

that the Senate was not available for the entire recess, and that 

no legislative business would be done during that time. 

I acknowledge that there are at least three credible arguments 

for why the pro forma sessions did interrupt the Senate’s recess, 

as Mr. Cooper has recited. The implication of these arguments is 

that the appointments were made during what is essentially a 3- 

day recess. Ultimately, I do not find the arguments persuasive. 

First, it is true that the pro forma sessions here were not simply 

conducted to prevent recess appointments. Because the House did 

not consent to adjournment, reportedly, in order to prevent recess 

appointments, the session sought to satisfy the requirement of Article I that neither house shall adjourn for more than 3 days without 

the consent of the other. 

One session was also held to satisfy the 20th Amendment’s requirement that Congress must meet on January 3, unless it provides otherwise. But assuming the pro forma sessions satisfy those 

22 

requirements, it does not follow that they would interrupt the recess of the Senate for purposes of a differently worded provision of 

a different article of the Constitution that was intended to serve a 

very different need, to keep offices filled. 

In constitutional law, context matters. The very same clause of 

the Constitution gives Congress the power to regulate commerce, 

‘‘Among the several States and with the Indian tribes.’’ But Congress has plenary authority to regulate Indian affairs, but not 

interstate commerce. 

It is reasonable to believe that Congress has greater leeway to 

use pro forma sessions for internal legislative branch operations 

than it does to affect the powers of another branch. And while 

there is a historical tradition of using pro forma sessions for legislative purposes, there is no comparable tradition of using a series 

of such sessions to deny the President authority to make appointments during what would otherwise plainly be a lengthy recess. 

Second, the Constitution gives the Senate the power to determine 

the rules of its proceedings. But the courts have recognized that a 

House’s power to govern its internal affairs does not give it license 

to override constitutional limits on its authority, such as by impairing the functions of a coordinate branch. It is particularly difficult 

for the Senate to justify denying the President the ability to keep 

executive offices filled at a time it grants its own leadership authority to make appointments despite the recess. 

Finally, it is true that twice during the 111th Congress the Senate enacted legislation by unanimous consent during what were 

originally scheduled to be pro forma sessions. I do not believe those 

two unusual episodes, which involved extraordinary efforts to avert 

imminent harm, prove that the Senate is available, as a general 

matter, to do work during pro forma sessions. 

The recess order here explicitly said that no work was to be conducted during the sessions. And as the Congressional Research 

Service concluded just last month, ‘‘Normally, it is understood that 

during a pro forma session, no business will be conducted’’. 

Even before these two outlier sessions where legislation was 

passed, Senators stated, quote, ‘‘We are not going to be able to consider legislation, unquote, during the recess. If even Members of 

the Senate believe there is no reasonable possibility of performing 

legislative work during pro forma sessions, I see no basis for holding the President to a higher standard. 

I look forward to answering your questions. 

[The prepared statement of Mr. Elwood follows:] 

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Mr. SMITH. Thank you, Mr. Elwood. 

Professor Turley? 

TESTIMONY OF JONATHAN TURLEY, SHAPIRO PROFESSOR OF 

PUBLIC LAW, GEORGE WASHINGTON UNIVERSITY 

Mr. TURLEY. Thank you, Mr. Chairman, Ranking Member Conyers, Members of the Committee, my name is Jonathan Turley. 


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And I am a law professor at George Washington University. It is 

an honor to appear before you today to talk about such an important issue in our constitutional scheme. 

It is also an honor to follow my two esteemed colleagues. Although, I feel a bit like Rocky III, that all of the good themes and 

characters have been taken. So I am probably going to rely heavily 

on my written testimony to fill out what has already been addressed. But I would like to amplify a couple of points. 

First of all, I want to say at the outset that I have long supported Mr. Cordray, who I thought was a very well-qualified nominee. This has nothing to do with him. To the contrary, constitutional analysis has to be dispassionate and detached. On this occasion, whether one supports the nomination or does not, it is really 

immaterial to the constitutional analysis. What is material is what 

I view as a circumvention of the delicate balance created in our 

system by the Framers. 

I should note that often in this debate it has been cited that this 

was required, because of the extraordinary politics of our time. I 

just want to emphasize, as a matter of accuracy, that there is nothing extraordinary about our current politics. Indeed, the Framers 

would have viewed our current politics as relatively tame. When 

the Framers were doing what you do now, the political situation 

was positively lethal, with Federalists and Jeffersonians not just 

trying to arrest each other, but in some cases, put each other to 

death. So we should not forget that people like Jefferson called his 

opponents the, quote, Reign of the witches. This was a fairly intense period. The divisions were quite deep. 

We shouldn’t allow dysfunctional politics to justify dysfunctional 

constitutional measures. I believe this is one such measure. I believe that President Obama has, indeed, violated the Constitution 

with these appointments. 

I will now return to the language of Article II, Section 2, Clause 

3. We have talked about it, but I will simply note, I have often 

viewed this to be not a closed question. I think the plain meaning 

of the recess appointments clause is obvious. I subscribe to the 

original interpretation of the clause. Ironically, I believe that if 

Congress stayed with that original interpretation, which was written for very good reasons, to only apply to vacancies that occur 

within a recess, we would have avoided much of the controversies 

we have seen in modern time. 

It is not a provision that is supposed to circumvent the checks 

and balances of the system, particularly the preceding clause, 

which is the appointments clause. What it does is it requires a 

President to convince Congress. That is what the checks and balances are. Congress is allowed to block or reject a nominee for good 

reason, bad reason, or no reason at all. They have to work together. 

Now, as a father of four, I often have to tell my kids that recess 

is not a time, really, where rules don’t apply. Unfortunately, Presidents have treated recesses that way, that it somehow relieves 

them of those requirements of checks and balances. It does not, in 

my view. 

I also want to emphasize something that is quite important. As 

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tached from the reality of the clause, of why it was enacted. I don’t 

believe there is any question as to what the Framers saw as being 

accomplished by the recess appointments clause. Because back 

then, recess appointments were not viewed as uncommon. To the 

contrary, they were very common. But they were common, because 

Congress often recessed for 6 to 9 months. So Congress was not 

here. Your predecessors would travel on dirt roads by horse, to far 

distances, and they would disappear. So the recess appointments 

clause was desperately needed, particularly when you had a Supreme Court with only six members. You couldn’t really have many 

vacancies. So, indeed, it was used a great deal. But the purpose 

was also obvious. It was something that you needed to act on out 

of necessity. 

In my testimony, I point to the views expressed by Alexander 

Hamilton, which quite clearly reject the current views of the 

clause. It also refers to objections made for the recess appointments 

clause. It is threatening a monarchal system of powers for the 

President. Those objections were opposed by Framers, who pointed 

out that this was a very limited power. And I would encourage that 

the views of the first attorney general of the United States, Edmund Randolph, be considered. 

Randolph was in a unique position to interpret the clause. He 

was not only a Framer, but he was actually on the committee on 

detail, one of the most important groups in the Constitutional Convention. Randolph was also a remarkably principled man. A brilliant lawyer. He was presented with this question when the ink 

was barely dry on this clause. And he said clearly, it could not be 

used for a vacancy that did not occur during the recess. That view 

was amplified later by other attorney generals in our history. 

The OLC opinion that has been issued by the Obama administration is certainly well written and well researched. I have a lot of 

respect for that office. I strongly disagree with the conclusions of 

that opinion. It tries too hard to thread the needle on this. I think 

the clear language and purpose of the clause is being frustrated. 

I have been a critic of past recess appointments, including appointments by President Bush. But this is, indeed, a standout. We 

have not seen a recess appointment quite like this one. I believe 

it should unify Members of this institution. 

After this clause was ripped from its textual moorings, it has 

floated dangerously in the choppy waters between the executive 

and legislative branches. It has done a disservice to the country 

over that period. As I often tell my students, in a Madisonian system it is often as important how you do something as what you do. 

I think this is the wrong means. 

Thank you for your time. 

[The prepared statement of Mr. Turley follows:] 

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Mr. SMITH. Thank you, Professor Turley. It is pretty clear that 

this is a subject that could have benefited by more than 5 minutes 

from each of our panelists today. It is complex, and it is sensitive 

in many ways. 

Let me recognize myself for 5 minutes for questions. And on the 

way to questions, without objection, we will make, Professor 

Turley, your op-ed in today’s ‘‘USA Today’’ a part of the record. 


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Mr. TURLEY. Thanks. 

Mr. SMITH. Let me address my first question to Mr. Cooper and 

Mr. Turley, but precede it by saying this: To me, and I haven’t 

heard anyone say otherwise, what the President did, to me, was 

unprecedented, unprecedented in our 200-year history. And to me, 

to justify what the President did, you would have to come up with 

a new interpretation of the Constitution. 

First, the President should know better. He was a professor of 

constitutional law. Second of all, it appears, to me, at least, that 

the Department of Justice is coming across as an apologist for the 

President. And in doing so, it is coming across as a politicized department, not necessarily a department worthy of the respect of the 

American people for dispassionately making a ruling or offering an 

opinion on the Constitution. 

And let me offer as evidence of this the fact that, as I understand 

it, two of the four appointments were made 2 days after the President and the Attorney General alleged that the Senate had gone 

into recess. The reason I think this is acting in bad faith is because, clearly, there was no time for the Senate to perform its advice and consent responsibilities if the President was just giving 

them 2 days to do that after he nominated these two individuals. 

So clearly, it was an end-run around the Constitution, and an 

end-run around the Senate. And to me, the impression given is 

that the President and the Attorney General are saying that we 

know better than the Senate what is good for them, and we know 

better than the Senate what rules should apply. That is dangerous. 

That is an assumption of Presidential powers that, as I say, is unprecedented, and very worrisome to me. 

Mr. Cooper and Mr. Turley, let me quote from the last paragraph 

of the op-ed. You say the Cordray appointment is bad policy and 

an abuse of power that all citizens, regardless of party affiliation, 

should condemn. That is a strong statement with which I agree. 

But I wanted to ask Mr. Cooper and Mr. Turley if they wanted to 

elaborate a little bit more on my point, that the President, to me, 

acted in bad faith by making nominations, and then in their own 

words, only having given the Senate 2 days to act on those nominations before they allegedly went into recess, according to the President. Of course, we dispute that. 

But Mr. Cooper, you are welcome to comment on that point. 

Mr. COOPER. Thank you very much, Chairman Smith. I am not 

going to characterize the appointments, you know, in any particular way, but I will add to the point that you have made, because I think that the real factual circumstances behind some of 

these appointments are much more egregious than you have outlined, in terms of the apparent intentionality of those appointments. 

Two of them, at least, were to fill vacancies that had existed for 

months before the December 15 nominations took place. They were 

vacancies that arose not by virtue of any particular casualty, as Alexander Hamilton put it, that is, you know, the death or the resignation of an incumbent. They arose, because the statutory term 

of the previous office holders had expired months before. And so 

those vacancies stayed vacant for a period of several months. 

62 

And in an analysis which OLC offers, that stresses the notion 

that the President must act, because the Senate is unavailable, 

simply cannot, in my opinion, tenably be maintained in a situation 

which the President himself has not taken advantage of the clear 

availability of the Senate to act on his nominations and to consider 

them for months on end. Vacancies that, by the way, again, took 

no one by surprise. So I think it is difficult more so than you have 

even suggested. 

Mr. SMITH. I agree with you. It is worse than I said. Thank you 

for making that point. 

Mr. Turley? 

Mr. TURLEY. First of all, I would like to agree with the op-ed as 

strongly as I could. One of the things I think is important to note 

here is, I was very surprised by the timing of the recess appointment. It did not have to be what is called an intra-session appointment. In making an intra-session appointment, the White House 

really created this perfect storm of controversy. It added all of the 

controversial elements that we have seen in previous recess appointments and combined them. 

I do not believe that the clause applies to intra-session appointments. They never have. There is a great amount of literature that 

has strongly opposed past intra-session appointments. What I 

think is missing here, when the White House talks about the artificiality of a pro forma session, which I address is really not up to 

the President to define, what is missing is a recognition of the artificiality of the claim of a need for recess appointments. The idea 

that I couldn’t have the advice and consent of Congress, so I had 

to move. I had to go ahead and circumvent Congress. That circumvents something fundamentally more critical to the Constitution than who defines recess. It is a President who is saying something that is facially not true. The Senate was available for advice 

and consent. 

When the President said in his public comments, I won’t accept 

no for an answer, it was a telling way of expressing the reason for 

the appointment. He did get an answer. He didn’t get an answer 

that he liked. And I might not like that answer. But it was an answer. That is, Congress said it would not confirm this nominee. 

They can do that for good reasons, bad reasons, or no reasons at 

all. But to say that in this blink of time that you can move a recess 

appointment reduces this entire clause to a blinking contest, that 

Congress can’t have even the smallest recess. 

Now it is not that it is unprecedented. President Teddy Roosevelt 

did it in seconds. He did it in seconds between the gaveling of a 

close of one session and the gaveling of the opening of another session, and moved 160 nominees. He was wrong. That was not the 

purpose the clause was designed for. And I think President Obama 

is also wrong. But this has all the elements together that have 

been individually controversial in past appointments. 

Mr. SMITH. Thank you, Mr. Turley. 

The gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. I enjoy this conversation quite a bit, because it is almost as if no one here in the room 

recognizes that this matter is going to court. And as soon as standing of the parties going to court is established, this matter will be 

63 

before the Federal judiciary for resolution. So we can come back 

and review these opinions. 

I particularly appreciated Professor Turley’s historical reminders 

to us about this process. But since Mr. Elwood did not get a chance 

to respond at all, I would like to just turn back the clock a few minutes and ask him to join in on the discussion that the Chairman 

enjoyed with Messers Cooper and Turley. 

Mr. ELWOOD. Well, as an initial matter, I do want to separate 

the constitutional question with the sort of matter of inter-branch 

relations and etiquette, because I think there are plenty of opportunities when a branch has the right to act, but it doesn’t necessarily 

mean that it should. And I think that it is true, as Professor Turley 

said, that I think since 1823, when the executive branch first officially set forth the position, that the recess appointment clause applied not only to vacancies that occurred during the recess. That 

is, when somebody dropped dead or resigned during the recess, but 

also to vacancies that existed before the recess. 

There has been increased opportunity for a clash between the 

branches. And it is true that to say people who received recess appointments, that there has been an opportunity to pass on them in 

the past. But that is a criticism that can be leveled against the, you 

know, practice of recess appointments for over 150 years, that 

these are people whose nominations have been pending, and for 

one reason or another have languished frequently, because not necessarily that they would survive and up-or-down vote, but because 

you were able to slow-roll people in the Senate. 

So, I guess the point of my long and rambling answer is that the 

criticism that is leveled at the current recess appointment is one 

that could be leveled against 150 years of recess appointment practice. It is not that particular to this one; although, I am not about 

to deny that the circumstances of this case may have made it a little bit harder to take for the people in the Senate. 

Mr. CONYERS. Well, the one thing that cannot be disputed, and 

I, again, refer to Professor Turley’s historical summary, is that 

never before in the history of the United States Senate have 44 

Senators written the President of the United States to tell him that 

they would not support the consideration of any nominee to be the 

director of the Consumer Financial Protection Bureau. And it 

seemed, to me, clear that that was done for the express purpose of 

shutting down an agency. 

Wouldn’t you agree? First, Mr. Elwood. Then Mr. Cooper. And 

then Mr. Turley. 

Mr. ELWOOD. Well, I think one of the things that it may show 

is just that the point of the recess appointments clause was to keep 

offices filled, and the Framers did take that very seriously, as I 

noted in my prepared testimony. But even though these recesses 

frequently lasted months and months, as Professor Turley said, 

they made recess appointments when the Senate was going to be 

available pretty soon. President Washington recessed appointed 

somebody 13 days before the Senate returned, which was a sign to 

him that 13 days is too long to leave an office unfilled. So I think 

that it may be an indication of the President’s felt need to use the 

clause. 

64 

Mr. COOPER. Thank you, Mr. Conyers. I don’t come to this Committee with any brief in support of the Senate in this particular instance or in any other. And, in fact, I believe that the Senate and 

the President, over the course of the last few decades, in particular, 

and their inter-branch disputes in this area, have rendered the appointment process quite dysfunctional. And I think it is very unfortunate. 

But, I do come here with a brief for the simple proposition that 

the Senate has the power, as Professor Turley has suggested. It 

has the power to withhold its consent for a good reason, or a bad 

reason, or no reason at all. That is not how I would advocate to 

the Senate that it should exercise its power. But I believe it has 

that power. 

Thank you. 

Mr. TURLEY. Thank you, Mr. Conyers. I would amplify that same 

point. It may, indeed, be unprecedented, in terms of the letter, although, I suspect that there have been past cases where a letter 

wasn’t sent, but the message was certainly sent. But the point is 

that the Senators actually had that ability in the previous session 

and used it. They refused to approve this nominee. 

The Constitution doesn’t go into motivations or the merits of the 

nominee. So, they clearly had the right to do what they said in the 

letter. The question now is whether the President has the power 

on the recess appointment to circumvent that will of Congress. 

Here, you had advice and consent already given, in the sense that 

they said, we oppose this nominee. This was a clear effort to circumvent that. 

I think the Framers would have been mortified. This is what the 

objections were during the ratification convention. You had people 

stand up. Now, we don’t have a record, as you know. You are a 

great student of the Constitution. And you know that we don’t have 

a record in terms of the intent behind the recess appointments 

clause. But in the ratification debates, people stood up and said, I 

don’t like it. Doesn’t this give the President the power of a king? 

The people supporting it said, no, that is not it. This is just for 

that period of a recess. It is a small supplemental power to what 

should guide our interpretation, which is the appointments clause 

and the preceding clause. 

Mr. CONYERS. Thank you. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Conyers. The gentleman from Virginia, Mr. Goodlatte, is recognized. 

Mr. GOODLATTE. Thank you, Mr. Chairman. I appreciate your 

holding this hearing. And I share your concern about the constitutional precedent that is being set here by a President seeking to 

violate the Constitution and appoint individuals while the United 

States Senate is in session. And I also want to mention that a similar hearing was held last week in the Education and Workforce 

Committee, where I serve, specifically on the three appointments 

to the National Labor Relations Board. I appreciate Chuck Cooper’s 

testifying at both of these hearings. And I appreciate his observations. 

Mr. Cooper, I wonder if you could comment on this. You recall 

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ent power to exercise a line item veto. You say you reached this 

conclusion only after exhaustive study. By contrast, the formal 

written OLC opinion justifying President Obama’s unprecedented 

recess appointment was admittedly not ready until after the appointments were made. 

Does that give you any reason to worry that the OLC’s analysis 

of this critical issue might have been hasty, rushed, or even results 

driven, even written in order to respond to what had already been 

done by the President? 

Mr. COOPER. Actually, Congressman Goodlatte, it seems clear to 

me from the thorough going nature of the OLC opinion that even 

though it wasn’t released until a couple of days after the appointments took place, the work, and the research, and the analysis that 

went into it had to have long pre-dated that. 

So I suspect myself, but I certainly know the facts behind the 

interworkings, but knowing the Office the way I do, I suspect they 

had rendered their advice on the basis of the analysis that ultimately was released in that written opinion. 

As I have testified, I don’t agree with the conclusions in that 

written opinion. And I tend to agree with Professor Turley that 

they are, in many respects, unsound and contradictory. But I rather suspect that the conclusions they reached had been formed prior 

to the time, and communicated to the President prior to the time 

those appointments were actually made. 

Mr. GOODLATTE. What about the question about whether they 

were results driven? In the appraisal business, we have individuals 

whose title is MIA. And sometimes the joke about an appraisal that 

comes back with some suspect quality is that MIA means made as 

instructed. [Laughter.] 

Mr. COOPER. Well, Congress Goodlatte, let me answer your question this way. I believe that the President is entitled to the benefit 

of the doubt on legal issues from his lawyers that advise him. Just 

as I believe that this body is, from the lawyers that advise it. And 

that the Office of Legal Counsel is responsible to give independent 

and careful legal advice to the President, but it should and quite 

properly does seek in ways that are consistent with intellectual integrity, facilitate the President’s desired goals and objectives. And 

so I view the OLC as owing a duty of friendly independence to the 

President. Not hostile independence. 

That having been said, I, again, believe that this advice rendered 

to the President was not sound. And I think it was advice that, to 

my mind, ought not to have been given. 

Mr. GOODLATTE. Let me ask each of the witnesses. Article II, 

Section 2, Clause 3 of the Constitution states that, ‘‘The President 

shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall 

expire at the end of the next session.’’ Doesn’t the plain meaning 

of this clause demonstrate that the vacancies had to have happened during the recess in question? Under this interpretation, the 

recess appointment would be necessary, because the Senate would 

not have had an opportunity to act on the nominee during its previous session. 

Have there been any Supreme Court decisions that have directly 

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pointments when the vacancy does not actually arise during the recess. 

Professor Turley has already—— 

Voice. Use the mike. 

Mr. GOODLATTE. Based on his observations that the original 

meeting times of the Senate were—— 

Mr. NADLER. Mr. Chairman, the gentleman is not—we can’t hear 

him. 

Mr. GOODLATTE. I have the light on, but the microphone is not 

working. 

Mr. SMITH. We have our technician in the back of the room working on it, I think. 

Mr. GOODLATTE. If the panelists can hear my question, I will just 

proceed. But Professor Turley was clear in his answer that when 

the Senate wasn’t in session for 6 or 9 months at a time, this power 

in the Constitution was of vital importance, but the meaning of it 

seems to have been directed at allowing the President to act during 

those periods of time. I wonder if Mr. Cooper and Mr. Elwood 

would address that point. 

Mr. COOPER. Mr. Goodlatte, I haven’t done the in-depth research 

that I would want to have done, in order to render an actual opinion to you on that subject. But I will say this. I have read Professor 

Turley’s testimony very carefully, and in the researches that I have 

done previously, and in particular, I would commend your attention 

on this question to a ‘‘Law Review’’ article written by Professor 

Mike Rappaport, a colleague of mine when I was in the Office of 

Legal Counsel, for whom I have great respect, who has concluded 

that the original understanding of the recess appointment clause 

would require that the vacancy actually occur during the recess of 

the Senate, during the intersession recess of the Senate. And the 

case that I have seen made there, which I haven’t independently 

looked beneath and beyond, is very compelling. 

Mr. GOODLATTE. And clearly, since the Senate met and passed a 

2-month extension of the payroll tax the day before these recess appointments were made, that was not the facts of this case that we 

are looking at now. 

Mr. COOPER. Yes. 

Mr. SMITH. Thank you, Mr. Goodlatte. 

The gentleman from New York, Mr. Nadler. 

Mr. NADLER. Thank you. Let me first ask the following to followup. By the way, I recently had my house appraised, so I now know 

that if the appraiser had an MIA after his name, I should consult 

Mr. Goodlatte. 

In any event, to follow-up on Mr. Goodlatte’s questioning, since 

1823, let me ask the three of you, is there any question in your 

mind that if a vacancy occurred while the Senate is in session, and 

the Senate were then, without voting on that vacancy, to adjourn 

sine die for six or 8 months, the President would have authority 

to fill that vacancy. Is there any question of that? Or is that simply 

an academic discussion these days? 

Mr. TURLEY. I would be happy to take it. Actually, I think there 

is a question of that. If you take a look at Hamilton’s statements, 

and particularly Randolph’s statement, they are very clear. 

67 

Mr. NADLER. No. No. Let me say. We understand Randolph and 

Hamilton, but the practice since, I think you said 1823, given the 

constitutional history—— 

Mr. TURLEY. Yes. 

Mr. NADLER. Is there any question in the—— 

Mr. TURLEY. I think the OLC places great importance. I have to 

say, to OLC’s credit, the decision in Evans put a lot of importance 

on that very historical practice. 

The Supreme Court has not ruled on that. And to Mr. Elwood’s 

credit, I agree with him that the limited cases that are out there 

are not very helpful. But I do want to point out one thing in my 

written testimony. I have strong objections to the use of historical 

practices as substitute for constitutional analysis. 

What the OLC is arguing, in my view, is it can do an adverse 

possession claim. That if Congress doesn’t defend its territory over 

a long period of time, somehow the executive branch acquires that 

territory. 

Mr. NADLER. Anybody else comment on that? Has this been an 

object of question for the last 150 years? 

Mr. ELWOOD. This is a question that puts me in the horns of a 

dilemma, because I agree with Mr. Turley. I mean ordinarily, contemporaneous practice at the Founding is kind of what matters 

most to me, but I also am a big believer in sort of stare decisis. 

And it has been more or less the accepted practice between the two 

branches. And around 1823, the Monroe administration, which is 

the tail-end of the Founding generation, that if it happens to exist 

during the recess of the Senate, the appointment can be made. 

And I don’t view it as an adverse possession theory. I view it as 

when the Constitution is ambiguous, the practice of the parties implementing it can help shed light on it. 

Mr. NADLER. And that practice has been fairly uniform since the 

1820’s. 

Mr. ELWOOD. I believe so. 

Mr. NADLER. Thank you. 

Mr. ELWOOD. I am sorry. I don’t have time to—— 

Mr. NADLER. Let me go further. We all know the adage that hard 

cases make bad law. And I would submit that this is a hard case, 

because the Senate, or at least a minority of the Senate very clearly acted with intention and with a statement to that effect that 

they intended to nullify the President’s ability to fulfill his constitutional duty, that he should take care that the laws be faithfully executed, by saying that they would block any confirmation of 

anyone to an office, unless the law were changed in a way that 

they didn’t have the votes to change it. So, the President’s ability 

to enforce the law was going to be deliberately frustrated by the 

minority in the Senate. And that is the situation that the President 

was responding to. 

Now, certainly, they had the power to do that. Certainly, I think 

from a constitutional point of view, that is not the intention of the 

Framers, that the President should be frustrated from enforcing 

the law until the law is changed to a minority’s liking. And so the 

President then acted with the action that we are talking about. 

And the question then becomes, I think, a question of pure technical law. 

68 

The Senators had the ability, under the Constitution, to frustrate 

the President’s ability to fulfill his constitutional mandate. The 

President was trying to use his power to get around that. And it 

is not nice to look at either side. And no one really has clean 

hands. And one could make a political argument as to who started 

the fight first, and who, you know, threw the first punch, and so 

forth. But nobody is fighting with clean hands here. 

Now, my question is directed to Mr. Elwood. And that is, okay, 

I can understand the argument, and I sympathize with the argument that the Senate’s recess cannot be simply understood because 

it says so. It has to be understood within the context of the purpose 

of the constitutional clause. Can it, in fact, consider a President’s 

nominee? And if the answer is no, then it is effectively in recess 

for that purpose. That is an argument that is made. I will accept 

that argument. 

But how do you answer the question that, well, it is obviously 

not really in recess and unable to function for the purpose of considering a Presidential nominee, which would allow the President 

to make an interim appointment, as evidenced by the fact that, not 

the day before, but a few weeks before, it actually passed legislation, namely, the payroll tax extension, while in supposedly pro 

forma session. Doesn’t that really say it is not really pro forma session, whatever the Senate says? 

Mr. ELWOOD. I think the response is that those instances are 

kind of the exception that proved the rule. As the Congressional 

Research Service said, you know, pro forma sessions, normally 

business doesn’t get done. And business can get done when something very bad is going to happen, otherwise. Such as when the 

payroll tax exemption would come back in January 1, or the FAA 

shutdown would continue. 

But I think that it is basically no different. I mean, of course, the 

Senate can come back when it wants to, but that is something it 

can do even without pro forma sessions. Virtually, all of these recesses, normal Senate recesses, are subject to recall by the majority 

leader. But, you know, that was the kind of order that was in place 

when Judge Pryor was recess appointed. And, you know, even 

though that was a very heavily litigated case, that argument was 

never made. The fact that they could have come back if they wanted to was enough to mean that they weren’t really in recess at that 

time. 

Mr. NADLER. Thank you. 

Mr. SMITH. Thank you, Mr. Nadler. 

The gentleman from California, Mr. Lungren, is recognized. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. And thank 

the three of you for testifying here. 

Mr. Elwood, it is not a matter of law, but one of the rules of logic 

is the law of non-contradiction. One cannot be A and not A at the 

same time. And in this case, you have a question of whether the 

Senate was really in recess, and, therefore, making itself unavailable for purposes of responding to the President’s appointments. 

But on the other hand, you have the Senate actually accomplishing 

legislation. 

Now, either they were not in recess and were in session, which 

allowed them to pass legislation, which the President urged them 

69 

to, and then subsequently signed, or they were not in session, and 

incapable of carrying out that constitutional act. 

So, my question to you is: How can your analysis be justified 

that, in fact, the Senate was not in actual session? You indicated 

that there were statements that they made that they would not be 

in session for purposes of doing any legislative work, as instructive, 

as we should analyze this. But at the same time, the President 

stated publically that he was recess appointing Mr. Cordray precisely because the Senate, having considered the nomination, would 

not confirm him, and the President, quote, Refused to take no for 

an answer. 

So, how do we arrive at the conclusion you gave us that the 

President’s action was, in this case, constitutional? 

Mr. ELWOOD. I think that the thing is that the pro forma sessions merely have the form of a legislative session. They are not 

the substance of a legislative session. 

Mr. LUNGREN. Well, how did the Senate act then? 

Mr. ELWOOD. When the majority leader takes the floor and says 

this was a pro forma session. We decided that by unanimous consent. But now by unanimous consent, this is a legislative session, 

we are going to pass a bill. I mean at that point, it is no longer 

just a pro forma session. He has made it a real live session of Congress. 

When he leaves that day and they adjourn, I presume they go 

back to the terms of the recess order, which say that they are pro 

forma sessions only, with no business to be conducted. And I think 

it is along the lines of how the Senate can always do business. The 

majority leader can always call them back to do work. 

Mr. LUNDGREN. So it is based on what the Senate majority leader 

said. Well, on November 16, 2007, Senate Majority Leader Harry 

Reid announced that the Senate would, quote, Be coming in for pro 

forma sessions during the Thanksgiving holiday to prevent recess 

appointments, end quote. So he said it back in 2007, the precise 

reason they were staying in session, even though it was called pro 

forma, was to prevent the then President from recess appointments. 

Is that statement that he made at that time now inoperable, in 

view of the statement you just quoted him making? 

Mr. ELWOOD. I don’t know that I understand your question. 

Mr. LUNGREN. Well, I thought you just told me that when the 

majority leader comes to the floor and says we are no longer in pro 

forma session, we are now in session. We are going to consider this 

bill. We are going to pass this bill. That is not only illustrative, but 

determinative of the nature of the session, and, therefore, the 

President’s ability to act in the appointment category. 

But then when I give you a quote of the same person acting in 

the same manner, Senate Majority Leader Harry Reid, saying that 

the purpose of the pro forma session, so-called pro forma session, 

was to prevent recess appointments, that has no consequence, in 

terms of his understanding of the Constitution? 

Mr. ELWOOD. I think that the point you are making is that that 

is the legislative purpose, is denying the President the ability to 

make the recess appointments, and that it is the legislative busiVerDate Aug 31 2005 13:06 Apr 13, 2012 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021512\72903.000 HJUD1 PsN: DOUGA
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ness that makes those real sessions. That is my problem, is that 

I am just not 100 percent sure what you mean by that. 

Mr. LUNGREN. Well, I am not 100 percent sure what you mean. 

I am sorry. I guess I could just quote Humpty Dumpty. When I use 

a word, Humpty Dumpty said in rather a scornful tone, it means 

just what I choose it to mean, neither more nor less. The question 

is, said Alice, whether you can make works so many different 

things. The question is, said Humpty Dumpty, which is to be master. That is all. 

I would hope that the master in this case is the Constitution. 

And the words of the Constitution are fairly specific. And I think, 

in fact, as Professor Turley has suggested, we understand what the 

context was when this section of the Constitution was placed there. 

If we are going to give up everything to the President of the United 

States, democrat or republican, to say it doesn’t matter what the 

words mean, that Presidents can get around it, frankly, we have 

ceded some of the authority of the legislative branch. 

And I would just say this. It is demonstrable that our Founding 

Fathers created an inefficient governing system precisely to protect 

our liberties. And we can bemoan that fact. But the Senate is an 

absolutely essential mechanism to appointment making, except in 

extraordinary circumstances, which are supposed to be recess appointments, and we are making it ordinary. 

Thank you. 

Mr. SMITH. Thank you, Mr. Lungren. 

The gentleman from Virginia, Mr. Scott, is recognized. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, I just have to comment on all this balance of 

power between the executive and legislative branch from people 

that want to give the President the line item veto. 

One of the problems we have in this discussion is, we have a 

problem, but there is nothing the House can do about it. We can’t 

confirm any of these appointments. And if we were to declare this 

either constitutional or not constitutional by resolution, or however 

we express ourselves, it would have zero legal consequence. 

Just for the record, Mr. Chairman, the records I have point out 

that President Reagan made 240 recess appointments, President 

George H. W. Bush, 74, in just one term. President Clinton, 139. 

President George W. Bush, 171. And President Obama, 28, so far. 

Mr. Turley, I guess the whole discussion is: What is a recess? 

You indicated that President Roosevelt made recess appointments 

in the time between two gavel whacks. What happened to those, 

what, 100-and-some appointments? 

Mr. TURLEY. It was about 160. There was discussion in Congress 

at the time as to whether they should move aggressively against 

them. These were largely military officers, and Congress decided 

that it would not move aggressively against them. 

Mr. SCOTT. Were any of the appointments ever removed, because 

they were inappropriately appointed? 

Mr. TURLEY. No. Indeed, one of the things I have suggested in 

the past to Members of this Committee is that Congress should be 

more aggressive, that they should create bright-line rules as to how 

they will respond, regardless of the merits or individual, to the 

abuse of the recess appointment. 

71 

One of the things I’ve suggested in the past and suggest in this 

testimony is that I think that the Congress should refuse confirmation to any intra-session appointee. 

Mr. SCOTT. You make a distinction between intersession, and I 

guess at the end of the session, you adjourn sine die for the rest 

of the year. What does intersession mean? That is during the year? 

Mr. TURLEY. Yes. What happened here is that the second session 

of Congress had begun. So, it’s an intra-session appointment. 

Mr. SCOTT. Okay. Well, what do you call what happens in August, when we take off for the month? We call it an August recess. 

Mr. TURLEY. Right. In my view, breaks in a session, whether it 

is a first or second session, where Congress is sitting, is not an appropriate basis for an appointment, but the more critical issue 

here, and it sort of goes to the Humpty Dumpty issue. This is the 

first time I have incorporated Humpty Dumpty and Hamilton in 

the same testimony. But there is something valid in the Humpty 

Dumpty reference. And that is, if you read the OLC opinion, they 

state something that I find quite chilling; where they say it is up 

to the President’s satisfaction as to what constitutes a recess. To 

me, that flips the presumption. It also contradicts past court cases 

that defer to this body to define whether it is in recess. I think that 

is an extremely dangerous position to take, as we debate this intrasession versus intersession. 

Mr. SCOTT. But there is no length of time by which you need to 

recess for it to be a recess for the purposes of recess appointments. 

Mr. TURLEY. Well, historically, the OLC has always looked to the 

adjournments clause and said that anything shorter than 3 days, 

although, that is practically 4 days, would clearly not be sufficient 

for a recess. The OLC sort of dances around that. They effectively 

answer the question by changing the question, and saying since we 

don’t believe that this is real, that this pro forma session is a session, we don’t have to get into that. 

Mr. SCOTT. Is there any possibility that the courts might leave 

this up to the idea of a political question, Evans v. Stephens? 

Mr. TURLEY. You are absolutely right. That is a real possibility. 

The courts tend to leave this to the branches to work out. I think 

that is a serious problem. You know, the courts, too often, leave 

this to a political process. We have an extremely dysfunctional situation here. We have an independent judiciary for a reason. 

Mr. SCOTT. What did Evans v. Stephens rule? What did they decide in that case? 

Mr. TURLEY. In Stephens, they did say that the appointment was 

valid. The recess appointment there. Although, there was one dissent. But, also, I should note, Justice John Paul Stevens, when the 

matter came up to the Supreme Court, wrote a very rare statement 

in the denial of cert. He agreed that the case was not appropriate 

for certiorari. But he wrote a written opinion, which is rare, and 

said do not assume that this court accepts, or at least that Justice, 

that an intra-session appointment is valid under the clause. 

Mr. SCOTT. But the majority did not cert. 

Mr. TURLEY. He agreed with the majority, because he did not believe that this was worthy of certiorari. 

Mr. SMITH. All right. Thank you, Mr. Scott. 

The gentleman from Arizona, Mr. Franks, is recognized. 

72 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Mr. Chairman, I think that Mr. Cooper and Mr. Lungren made 

compelling arguments that these pro forma sessions were, indeed, 

substantive. I think that you used the word, Mr. Elwood, that these 

might or might not have been substantive. And the thing that 

made them substantive, of course, is that a law was passed. I mean 

we are lawmakers. I don’t know how to make a session more substantive than if, indeed, a law can be passed during the session. 

So, with that said, it seems to me that to reasonable minds that 

that question has been answered. But the other thoughts that have 

been postulated today about whether or not Congress, or specifically even the House, has any role in responding to it, and I would 

submit that there are some possibilities. And one would be reviving 

the understanding that the President can circumvent the Senate, 

to use a phrase, only when the vacancy first arises during the Senate’s recess. That is essentially trying to revive the original meaning of the clause itself. Congress could accomplish this, for example, by amending the Pay Act to prohibit paying a recess appointee’s salary, unless the vacancy actually arose during the recess. 

Mr. Turley, I note in your testimony you advocate for the original 

understanding that I am discussing here, saying it would, ‘‘Avoid 

many of the controversies of modern times.’’ Now that is a professor’s way of saying this would fix their wagon. But would you 

elaborate on that a little bit? 

Mr. TURLEY. Thank you, sir. Yes. I thought it was quite surprising to see the OLC use the decision of this body and the Pay 

Act as evidence against Congress’s authority. That is, the Justice 

Department has argued that because you allowed some of these appointees to be compensated, you were conceding or acquiescing to 

their claims as part of the adverse possession notion that I talked 

about earlier. I do think you should consider amending the Pay 

Act. 

Also, I do think that this body’s involved. Of the adjournment’s 

clause, both of the Houses decide whether to adjourn. This body is 

intimately involved in that. And there was a consensus between 

the Houses to take this step. 

I will also note that regardless of your party, this idea that it is 

the President that has to be satisfied that you are in session is a 

very dangerous notion. Thomas Jefferson said in 1790 that each 

house of Congress has the natural right to govern itself. Article I, 

Section 5, Clause 4 says that each house determines its rules. 

Cases like Mester, out of the Ninth Circuit, have said that extreme 

deference is given to the Houses. 

What I thought was really remarkable of the OLC, was not only 

that all presumptions were ruled in favor of the President, but that 

they believed that even the interpretation of whether you are doing 

business or not ultimately will rest with the President. That would 

radically shift the center of gravity under Article I and Article II. 

Mr. FRANKS. Well, of course, it makes all the sense in the world 

to me what you are saying. 

Mr. Cooper, if I could turn to you. First, let me suggest to you 

that this is not just a casual discussion. H.R. 3770, I am one of the 

co-sponsors, and there are many on this Committee who are coVerDate Aug 31 2005 13:06 Apr 13, 2012 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021512\72903.000 HJUD1 PsN: DOUGA
73 

sponsors, does, indeed, do exactly what we are talking about here. 

And so, Mr. Cooper, you testified that there is substantial textual 

and historical support that, as originally understood, the recess appointment power is limited to vacancies that occur while the Senate is in recess. 

Do you think amending the Pay Act would be a good way or a 

way for Congress to require the Executive to respect the Constitution’s dictates, and/or do you think there are other options available to us? 

Mr. COOPER. Congressman Franks, I completely agree with the 

response that Professor Turley has provided just now, and believe 

that the Pay Act would be an entirely apt way in amending it along 

the lines that you are suggesting, an entirely apt way for the Congress to react to what it believes and what I have testified is Presidential overreach in this episode. 

I also want to add that I think that notwithstanding the fact that 

the House of Representatives has no agency in the appointment 

process, only the Senate and the President, doesn’t in any way 

eliminate this body’s quite appropriate interest in what is occurring 

here, when we are talking about the separation of powers between 

the Congress and the President, and the checks and balances that 

are at stake here. 

And keep in mind this, as Professor Turley has suggested, the 

President has, with his lawyers’ blessing, assumed the power to decide for himself when the Senate and when the House is in session, 

and when it is in recess, even when in disagreement with the bodies’ own determinations on that score. I just don’t believe that any 

court is going to defer to the President’s judgment about that, rather than the Senate’s, with respect to its determination, or the 

House of Representatives, with respect to its determination. At 

least if there is any factual predicate, whatsoever, for the bodies’ 

determination. 

Mr. FRANKS. Well, Mr. Chairman, I am going to suggest that 

H.R. 3770 might be a good way for us to respond to this, because 

it is still a thought in my mind that we have the purse strings 

given to us by the Constitution, of course, unless the President 

would somehow say that we no longer have that. And then we 

would, of course, have to defer to him. 

Mr. SMITH. Thank you, Mr. Franks. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized. 

Ms. JACKSON LEE. Thank you very much to the witnesses. 

And I guess my first rhetorical question is: What are the American people to do when we are sitting here collectively, the three 

branches of government, to work on their behalf? 

I just have a very brief question. Professor Turley, thank you for 

your work. And I just have this quick question. I am just holding 

this up. Have you just constitutionally, and as a professor who 

watches the political scene, as it relates to our constitutional duties, seen a letter, written by 44 Senators, that indicates, I think 

the opening lines, that they will not confirm any nominee, regardless of party affiliation, to be the director of a particular agency? 

Have you ever seen this kind of action? 

Mr. TURLEY. Honestly, no. 

74 

Ms. JACKSON LEE. And I appreciate that. And I appreciate your 

perspective. And if I could just move to Mr. Elwood to raise a question with you. 

The Chairman made a good point that this will ultimately wind 

up in the courts. But let me reemphasize constitutionally, because 

I think we have gotten muddied, and put recess over to the side. 

The Constitution establishes, actually, two methods, by which a 

President can have a person appointed to a position. And that is 

by the advice and consent of the Senate. I just want you to say yes. 

And it does establish recess appointments. Is that not correct? 

Mr. ELWOOD. That is correct. 

Ms. JACKSON LEE. So we are not talking about an unconstitutional act. It is in the Constitution, defined recess, and then advice 

and consent. Is that correct? 

Mr. ELWOOD. That is correct, Congresswoman. And one thing to 

emphasize. 

Ms. JACKSON LEE. And talk fast. 

Mr. ELWOOD. Okay. Is that even though people say it is like a 

monarchical power, that the people who have been recess appointed 

are a tiny number compared to the number who go through the 

Senate. 

Ms. JACKSON LEE. And let me just say this. I am not afraid of 

what may potentially happen with my inclination to think that this 

was legitimate. I know my friends have a real challenge with the 

present Administration. But I think it was important that my colleague indicated Ronald Reagan used it. George Bush used it. Bill 

Clinton used. George H.W. Bush. George W. And then it seems, at 

the end of his career, or his tenure for the first term, President 

Obama used it, actually, the least. 

But what I want us to frame, because there is an issue as to who 

has standing. My understanding is, and then you can respond to 

this, that with respect to Mr. Cordray, that the standing will come 

from individuals expressing a harm, whether it is the NLRB, or 

whether it is the Consumer Protection. And if you would make that 

point. Let me just raise this other question, if you would make that 

point of doing so. 

Then I want to just refer you to your own words of the President 

should call the Senate’s bluff by exercising its recess appointment 

power to challenge the use of a pro forma session. The alternative 

will likely be greater gridlock, which, for me, is an abdication of the 

duty we have to the American people. 

If you would just do the standing question and the question of 

how is the President to do his work for the American people, protected by the Constitution, if we have letters like this and gridlock. 

Mr. Elwood. 

Mr. ELWOOD. It is true that unlike a lot of recess appointments, 

the people who were subject to recess appointments in early January this year are going to do things that affect people. And as a 

consequence, there will be people who have the ability to challenge 

whether they were validly installed in office. 

Ms. JACKSON LEE. And that will be your standing basis. 

Mr. ELWOOD. Yes. Exactly. 

Ms. JACKSON LEE. That is how you would determine who has 

standing. 

75 

*The information referred to was not received by the Committee at the time of the printing 

of this hearing. 

Mr. ELWOOD. Yes. Exactly. 

Ms. JACKSON LEE. All right. Go ahead. 

Mr. ELWOOD. And as to the point about gridlock, it is true that 

even though recess appointments can sort of poison relations between the branches, it can also sort of dislodge things. It can sort 

of encourage the parties to work together more, because the realization of the President will just go unilaterally if the Senate does 

not move, can cause them to sort of limit their objections to a 

smaller body that they really care about, and let the other ones go 

by. 

Ms. JACKSON LEE. In your constitutional review, have you seen 

any harm being done by recess appointments egregious? Let’s look 

at the last Presidents that we just spoke about. Except political disagreements. But Reagan. George H.W. Bill Clinton. George W. 

Bush. Have there been a crisis in government by those appointments, or have Presidents used them to move the government process along, from your review? 

Mr. ELWOOD. I do not view them to have caused a crisis. 

Ms. JACKSON LEE. And do you think we are in a crisis right now, 

with the President’s utilization of appointing these individuals, 

NLRB and the individual from the consumer agency? 

Mr. ELWOOD. I don’t view it as a crisis. I agree that this is kind 

of a sticky situation, and it is a novel use of the power, because 

of the novel situation that the President found himself in. But I 

wouldn’t term it a crisis. 

Ms. JACKSON LEE. You think he is within his constitutional authority. 

Mr. ELWOOD. Yes, I do. 

Ms. JACKSON LEE. I have a letter that I would like to submit to 

the record, Mr. Chairman. On December 9, I wrote a letter, as the 

then chairwoman of the Transportation and Security Committee, 

after the Transportation and Security Administration appointee 

had been vacant for a year, after the Christmas Day alleged bombing, to ask for a recess appointment, because we could not seemingly move on that position. And for reasons of transparency, I am 

going to ask to submit that letter into the record. 

Mr. SMITH. Without objection. That letter will be made a part of 

the record.* 

Ms. JACKSON LEE. And I would thank the gentlemen for their answers. Yield back. 

Mr. SMITH. Thank you, Ms. Jackson Lee. 

The gentleman from South Carolina, Mr. Gowdy, is recognized. 

Mr. GOWDY. Thank you, Mr. Chairman. I will thank all the panelists. 

Mr. Elwood, what is stare decisis? 

Mr. ELWOOD. Stare decisis, I don’t remember what it means in 

Latin. But it just means that you comply with decisions once made, 

unless there is a very good reason for overruling it. 

Mr. GOWDY. Right. And it is important that we have consistency 

and predictability in the law. That is why most of us chose to go 

76 

into the law, because of the order, and the predictability, and the 

reliability of it. 

Mr. ELWOOD. There is a lot to that. Yes. 

Mr. GOWDY. So I guess what I am saying to the former attorney 

general from California’s point, when Harry Reid uses pro forma 

sessions to thwart a Republican President from making appointments, it is really tough to explain to the public how that same 

analysis shouldn’t be used when there is a democrat in the White 

House. 

Mr. ELWOOD. There is a certain appeal to that idea. Yes. 

Mr. GOWDY. In other words, the definition of recess, or pro forma, 

or functionality shouldn’t ebb and flow with the vagaries of political 

cycles. 

Mr. ELWOOD. No objection here. 

Mr. GOWDY. Do you agree the Senate can’t adjourn without the 

consent of the House for more than 3 days? 

Mr. ELWOOD. No. 

Mr. GOWDY. You do not. Does your version of the Constitution 

read differently than mine? 

Mr. ELWOOD. Wait. I may have misunderstood the question. 

Mr. GOWDY. The Senate cannot adjourn without the consent of 

the House. 

Mr. ELWOOD. Yes. 

Mr. GOWDY. All right. And the House never gave its consent. 

Mr. ELWOOD. That is also correct. 

Mr. GOWDY. All right. Do you agree that there is a difference between being unavailable and being unwilling? 

Mr. ELWOOD. I agree. 

Mr. GOWDY. All right. I want to ask specifically about Terence 

Flynn. Not that I am not interested in Mr. Cordray, but I think 

that NLRB appointments, or punitive appointments, are even more 

egregious in many regards. That vacancy occurred in August of 

2010. And his name was set forth in January of 2011. Now forgive 

my South Carolina math, but that is 4 months, thereabouts. So, 

the President waited 4 months, this position that is so vital to the 

fabric of our republic being wound together, he waited 4 months to 

even put a name forward. Do you disagree with my chronology? 

Mr. ELWOOD. Absolutely not. 

Mr. GOWDY. All right. So, January 2011, his name is sent forth. 

And he is not recess appointed for another year. Now who controls 

the Senate? Which party? 

Mr. ELWOOD. The Democrats do. 

Mr. GOWDY. Which means who controls the calendar in the Senate? 

Mr. ELWOOD. The Democrats do. 

Mr. GOWDY. Are you aware of Senator Reid’s scheduling any 

hearings on Mr. Flynn? 

Mr. ELWOOD. I am not aware one way or the other. 

Mr. GOWDY. So, you would not disagree if I told you he didn’t. 

Mr. ELWOOD. No. 

Mr. GOWDY. So, you would agree that for a full year the Senate 

was available to take up this nomination. 

Mr. ELWOOD. Yes. 

Mr. GOWDY. And yet, they did not. 

77 

Mr. ELWOOD. I understand that to be the case. 

Mr. GOWDY. Let me ask you about the other two. Those vacancies occurred in August of 2011. And those names were set forth 

in December of 2012. Again, 4 months. He waited 4 months to even 

name someone to fill the vacancies, but yet, the fabric of our republic will unravel if he doesn’t make a recess appointment within 3 

days. 

Mr. ELWOOD. I agree with your chronology. As I noted in both 

my written testimony and my oral testimony, I was just here to 

talk about the constitutionality of all of it. Not whether it was good 

intra-branch etiquette. 

Mr. GOWDY. Well, the Senate doesn’t ever have to adjourn, do 

they? 

Mr. ELWOOD. No. They do not. 

Mr. GOWDY. So they have the power to thwart all recess appointments, if they want to. 

Mr. ELWOOD. By staying in session. Yes. 

Mr. GOWDY. Can you understand how people would be vexed at 

how you can never adjourn, but yet you can’t define the terms of 

your own adjournment? 

Mr. ELWOOD. I don’t think so. 

Mr. GOWDY. You don’t find that vexing. 

Mr. ELWOOD. No. Because if you mean to stay in session, stay 

in session. But you can’t just say, I am in session now. 

Mr. GOWDY. But that gets to my other point of this desire, on the 

behalf of our fellow citizens, to have some consistency without the 

vicissitudes of political cycles. When Harry Reid says he is going 

to stay in pro forma session to thwart President Bush, how is a pro 

forma session any different when he does it when there is a democrat in the White House? 

Mr. ELWOOD. Well, I thought he was wrong the last time. 

Mr. GOWDY. Well, I could care less about the politics of it. What 

I am interested in, I would like to think the Constitution kind of 

transcends politics. And I don’t like games being played with it. 

And as I interpret it now, a nap can constitute a recess, which has 

been known to happen from time to time in the other body. A nap. 

[Laughter.] 

Mr. LUNGREN. More often than not. 

Mr. GOWDY. I defer to the gentleman from California. Whatever 

the definition of recess is has to be good for both parties. Whatever 

the definition of pro forma is has to be good enough for both parties. And whatever this newfound analysis called functionality is, 

has to be good enough for both parties. 

And with that, I am out of time, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Gowdy. 

The gentleman from Arizona, Mr. Quayle, is recognized. 

Mr. QUAYLE. Thank you, Mr. Chairman. And I want to thank all 

the panelists for being here. 

Professor Turley, we have heard that recess appointments were 

done under President Reagan, President Bush, 41, President Clinton, President Bush, 43, and also President Obama. Were any of 

those recess appointments done during a pro forma session that 

was being put forth by the Senate? 

78 

Mr. TURLEY. Nothing quite like this. In fact, when the line was 

drawn in the Bush administration, with regard to pro forma sessions, President Bush did respect that line, did not do further appointments. 

What you really have here is a sort of strata graphic record, 

where you started out with the plain meaning of the clause. And 

people like Hamilton and Randolph, very significant figures, reinforced the plain meaning of the path. 

What happened, in terms of decoupling, actually occurred under 

Attorney General Wirt 4 decades later, and it was Wirt who decoupled it. But the interesting thing, if you go back and look at Wirt’s 

opinion, he actually says the plain meaning of the clause contradicts my interpretation. He says that I recognize that the clause 

does read so that it only applies to vacancies during a recess, that 

occur in the recess. But he said I am going to read it according to 

what I think is the spirit. That was the critical point, where we became untethered. 

Mr. QUAYLE. And if this is allowed to stand, I mean we have 

heard that there are court cases going to challenge this, but if this 

is allowed to stand, and the reasoning that the OLC has given, saying that the President basically has the ability to define when the 

Senate is in session or when it is not in session, and set the precedent where the President can make a recess appointment at night, 

when the Senate gavels out for the day. 

Mr. TURLEY. Yes. That is quite striking because this is not a 

term that only occurs in this clause. Recess has been defined by 

Congress and there has been deference to that definition under the 

20th Amendment, under the adjournments clause. What the OLC 

is trying to say, in threading that needle, is that those didn’t affect 

another branch. 

One of the things I point out is that this is probably sort of a 

one-sided analysis out of the OLC. I didn’t think it was very fair, 

in that, basically, what they are saying is it is what we say it is. 

As I point out, I have represented Members of Congress most recently in the Libyan challenge, including Members of this Committee. In that case, the executive branch had a very similar situation, where we were challenging the right of the President to commit forces to war, with shared authority, belonging to Congress, to 

make a declaration. What the White House said is, war is what we 

define it to be. 

Now, that is obviously a definition that affects another branch. 

But it did not stop the Administration from saying we can define 

war, and we just simply define something as not a war. Well, that 

leaves very little room for the legislative branch, when you are defining all the key terms, and saying it unilaterally belongs to us. 

Mr. QUAYLE. So it says that basically the precedent would be set 

that the President, if you follow this reasoning, could make recess 

appointments when the Senate gavels out. 

Mr. TURLEY. Yes. If you look closely, the OLC said the only way 

that you could totally protect yourself is just stay in session all the 

time. 

Mr. QUAYLE. Back in 1987, there was an interesting maneuver 

that occurred, where there was actually two legislative days that 

were put forth, and one calendar day, so that the majority in the 

79 

House could be able to pass a rule that was running into some 

issues. Could the President, under the reasoning of the OLC, actually be able to make an appointment in between those two legislative days, and not a calendar day? Could they make a recess appointment, following this reasoning, in just a few hours, in between 

those two gavels? 

Mr. TURLEY. Well, following the OLC’s analysis, they say that it 

is up to the President, if he decides that you are not functionally 

ready to give advice and consent, that in that gap, no matter how 

short it might be, theoretically, he could act. 

Now, they say we don’t address the 3-day question, because we 

don’t think that this is really a session. But they also say the only 

way that you could entirely protect yourself is for you never to stop 

doing business. 

One of the things I just wanted to add is, we are blessed with 

Framers who were brilliant and also practical people. It borders on 

defamation to suggest that Framers would create such an absurd 

and ridiculous situation. What we are detaching here is the artificiality that we have all talked about. This artificiality of saying, I 

had to act, because I couldn’t wait for the advice and consent of the 

Senate, which might be minutes or seconds away. That, obviously, 

is not the spirit of the clause. But ever since we decoupled this 

issue from the language of the clause, we have gotten into this theater of the absurd. And I think it is a cautionary tale that sometimes it is better to stick with the plain meaning of the clause. 

Mr. QUAYLE. Thank you, Professor. Yield back. 

Mr. SMITH. Thank you, Mr. Quayle. 

The gentlewoman from Texas, Ms. Jackson Lee, is recognized out 

of order, to ask one question, to which she says there is a yes or 

no answer. 

Ms. JACKSON LEE. Yes. 

Mr. SMITH. The gentlewoman from Texas is recognized. 

Ms. JACKSON LEE. Thank you. I read in some of your testimony. 

In any event, does a Congressperson, or Congress, or the House 

have any standing to pursue this in a court of law? 

Mr. Elwood? 

Mr. ELWOOD. The courts have always been pretty skeptical of 

saying legislators have standing as legislators. 

Mr. SMITH. Is your mike on, Mr. Elwood? Thank you. 

Mr. ELWOOD. You would think I could figure the button out by 

this point. 

But I think that the most obvious person to have standing would 

be someone injured by their regulations or actions of someone on 

the NLRB or the CPFB. 

Ms. JACKSON LEE. Mr. Cooper? 

Mr. COOPER. Thank you. Actually having represented Members 

of this body and the Senate in the reigns against Byrd and the 

challenge to the old Line Item Veto Act, and having lost the question of representational standing, I would say that I doubt it very 

seriously. 

Ms. JACKSON LEE. Professor? 

Mr. TURLEY. I was the last to represent Members of this Committee in the Libyan challenge. We did argue there. I strongly believe that Members of Congress should have standing. But as 

80 

Chuck points out, the Supreme Court has taken a negative view of 

that. 

It is not entirely closed off, but they are very hostile to it. I believe they are dead wrong. That Members of Congress have standing. 

Ms. JACKSON LEE. But they are hostile to it. 

Mr. TURLEY. Yes. 

Ms. JACKSON LEE. Thank you. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Ms. Jackson Lee. The gentleman from 

Iowa, Mr. King, is recognized. 

Mr. KING. Thank you, Mr. Chairman. I was going to ask the 

gentle lady from Texas if she would allow me the courtesy to listen 

to my questions now. But just a little facetious thought that went 

through my mind. There is no such thing as a yes or no answer 

in this town. We know that. 

I thank the witnesses for their testimony, and confess that it is 

harder for me to dig down into the nuances of this when I read the 

Constitution. I think I understand the intent of the Constitution. 

I think we have been fairly unanimous in our understanding of 

what the Constitution says, what it was understood to mean at the 

time of its ratification, what we understand it to mean today. And 

the question then comes back to: Why would there be any question 

that the House decides when they are in session, the Senate decides they are in session, or the legislature of the Congress decides 

when they are in session? And I think the points that were made, 

that if we allow the President, as Mr. Cooper pointed out, to assume the authority, to declare when the Congress is and isn’t in 

session, that is an extra constitutional assumption, we should be 

very offended by that assumption. 

The only thing that I would come back to is, is if there is a misunderstanding on this, and to me, it is very, very clear, and it has 

been very well reiterated, but if there is a misunderstanding here, 

it is back to the letter of the Constitution then. And so, if that is 

the case, and we think about how it might potentially be litigated 

with the Supreme Court, if the Supreme Court should find perhaps 

with the opinion of Mr. Elwood, then I would find myself facing the 

question of how do I draft an amendment to the Constitution that 

could be more clear. 

And I pose that question to Mr. Elwood. How would you phrase 

the Constitution to end up with a result the rest of us believe in 

a fashion clear enough that you would concede the point? 

Mr. ELWOOD. It depends on which portion of it you wish to address. Because it definitely has been the case that you could just, 

to address what I think Professor Turley and I agree is one of the 

biggest issues of longstanding for these kinds of appointments is, 

that it only applies to vacancies that arise during the recess of the 

Senate. I think you could just say virtually the same thing that you 

did the first time, except you just say it only applies to vacancies 

that arise during the recess of the Senate, as opposed to happen 

to exist, I think. 

Mr. KING. Does the Constitution say that today? That it applies 

to vacancies that arise during recess, and gives the President the 

authority to make recess appointments. So, how is that a distinction? 

81 

Mr. ELWOOD. Well, it at least means that you couldn’t use it to 

fill offices with the people that you have had sitting around for 

months waiting to fill those offices. It would only be if the vacancy 

arose during that time. 

Mr. KING. So you are speaking in a means of addressing the unsuccessfully challenged practice of declaring vacancies to be vacancies created during recess. And I am fine with reverting back to the 

letter and the intent of the Constitution and its origins. I would 

like to stay with it. If the American people decided to reinforce this 

in the aftermath of all the litigation we might be faced with here, 

how would we define a constitutional prohibition to the President 

making recess appointments? How would we actually say that in 

the English language in a way that might stick? 

Mr. ELWOOD. As I sit here, I think there are several ways to skin 

the cat. And I don’t know if that would be whether to say that each 

House will have conclusive authority to define whether it is in recess or not, you know, for purposes of the recess appointments 

clause, or some other way of addressing it. Or stating it as a prohibition on use of recess appointments during certain circumstances. 

Mr. KING. Would you speculate as to whether you think the 

President believes he had declared the Senate not to be in session? 

Did he contemplate that? 

Mr. ELWOOD. No. Looking at it from his point of view, I think 

that he would say he is not looking behind the Senate’s own orders, 

that the Senate’s own orders say, oh, we are not going to do any 

work at that time. We are just going to come in and bang the gavel. 

And I think that, you know, looking at what the Senators themselves said at the time, as they went out, they thought they were 

going out for recess. They didn’t view the pro forma sessions as 

having substance either. 

Mr. KING. Then why were they having pro forma sessions? Do 

you know? 

Mr. ELWOOD. I think that if you ask them why are they having 

pro forma sessions, they would say to prevent the President from 

having a recess appointment power. 

Mr. KING. Exercising their constitutional authority to have pro 

forma sessions to prevent the President from having recess appointment power. 

Mr. ELWOOD. That is the question, I think. Yes. But technically, 

and this is correct, they were doing it because the House didn’t consent to adjourn for more than 3 days. 

Mr. KING. Mr. Cooper? 

Mr. COOPER. Thank you, Congressman King. 

Let us focus for just a second on January 3, 2012. The reason the 

Senate came into session on that day satisfied three constitutional 

requirements. Number one, the 20th Amendment demanded it on 

that day. So, the Senate had to come into session. Number two, the 

Senate did it because the House refused to consent to a recess of 

more than 3 days. And so, the Senate had no choice, in light of 

that, but to come into session. 

Finally, I would argue that the Senate came into session not to 

prevent the President from exercising his recess appointment 

power, but to make itself available to exercise its advice and consent authority for the President, in such event as some exigency or 

82 

some emergency along the scale of the necessity of passing the 2- 

month extension of the payroll tax cut presented. 

So there were three reasons on January 3 that the Senate came 

into session. And those reasons, every one, were constitutionally 

driven. And it seems to me to be really quite fanciful to say that 

the Senate was in recess on January 3, 2012. But that is the necessary result of the OLC analysis. 

Mr. KING. Thank you, Mr. Cooper. And if I could just quickly follow-up the question with this. Would you concede then, Mr. Cooper, 

that the Senate went into pro forma sessions to make themselves 

available for recess appointments, or appointments the President 

might make during that period of time, or if they were there to prevent the President from making recess appointments? In either 

case, would you agree that that would be a constitutional position 

of the Senate? 

Mr. COOPER. No question. I do believe that would be a constitutional motivation for the Senate to come into session. 

Mr. KING. Thank you. I thank all the witnesses. Thank you, Mr. 

Chairman. Yield back. 

Mr. SMITH. Thank you, Mr. King. 

The gentleman from Texas, Mr. Poe, is recognized. 

Mr. POE. Thank you, Mr. Chairman. 

I know the ultimate question is: Was the Senate in recess or not? 

But before we get there, a question is: Who determines whether the 

Senate was in recess or in session? It seems to me the Senate determines if they were in recess or in session. Not the President. Of 

course, the President thinks they were. He defines recess to mean 

whatever he wants it to be. And his lawyers, who are his lawyers, 

take his position. It means what he says it means. 

And I guess the next question is: What do we define recess as? 

It is back to the old, what does ‘‘is’’ mean? We have heard that one 

a long time ago. I would ask this question, under the philosophy, 

it is the President determines the recess between gavels. The 

House and the Senate normally recess to hear from the President 

on the state of the union. The Senate recesses. We recess. And we 

all wait for the President to show up, and then it is gaveled. 

Under the argument of Mr. Elwood, you would think that the 

President in between those gavels, he could appoint anybody to 

anything he wanted to, because we are in recess, but we are all 

here, ready to hear from him. I think that is a little absurd. 

Whether it is a 3-day rule, or it is just seconds, the President 

doesn’t determine the definition of recess or in session for the body. 

We do. Any more than we determine whether he is in recess or not. 

I think that is his obligation, to determine whether he is available, 

or whether he is in recess, or whether he is in session, or able to 

work. 

So, it is ironic, to me, that we are having this debate over what 

the word ‘‘recess’’ means. The Senate says they were not. They 

were in session. I mean I am one that does not necessarily think 

that the Senate works as much as they should. I refer to them as 

the siesta Senate on occasions. But the Senate makes the determination, it would seem to me. 

I think the Constitution says the House has to agree when the 

Senate goes in recess. My question is a yes or no question. Did the 

83 

House agree for the Senate to go in recess, if they went into recess? 

Professor Turley? 

Mr. TURLEY. No. They withheld their approval. It requires bicameral approval. They withheld it. 

Mr. POE. Mr. Elwood? 

Mr. ELWOOD. That is correct. They withheld their consent to go 

into adjournment. 

Mr. POE. Mr. Cooper? 

Mr. COOPER. I agree. The House withheld its consent. And presumably, and the reason that power resides in both houses, was so 

that the House could insist that the Senate be available to do its 

part in the legislative process, just as surely as the Senate could 

remain in session, pro forma session, to make itself available to the 

President for some kind of exigent action, such as confirming a particularly important Federal officer. 

Mr. POE. And the House can’t go into recess without the consent 

of the Senate. It works both ways. Isn’t that correct? 

Mr. COOPER. That is right. That is right. 

Mr. POE. All right. And then my final comment, and really question is, and I agree with you Professor, I think probably the smartest people that ever existed, to determine a government, our 

Founders, were those people. I really do believe that. Contrary to 

what Justice Ginsburg says about our Constitution, I think it is the 

finest document ever written for a government. 

What was their intent for even putting this in the Constitution? 

Mr. TURLEY. Well, this is one of those situations where there is 

such a significant disconnect between the language and the history. 

First of all, the language. When it says, ‘‘Happen to occur,’’ it 

seems to me it could not be more clear. It was basically agreed by 

Wirt, when he decoupled the language, that he was adding ‘‘happen 

to exist.’’ He essentially put in ‘‘to exist’’ in the language, which is 

manifestly different. What happens to exist could happen for any 

number of reasons, but virtually all of them are political. 

The Framers were facing a new government, where Congress 

would be gone for as much as 9 months at a time. They created 

a very logical and very clear clause that said during that period we 

accept that the President can make these appointments. The irony 

is that if you look back at the references that were made in the 

ratification debates, they all express this as a matter of fairness to 

Congress, because they said we don’t want to force Congress to be 

in session all the time. 

So because you are going to be gone for this length of time, because you had to, it took a lot of time to go to Ohio or Kentucky 

by horseback, they said we are going to give the President this authority. Randolph does a wonderful job with this, and lays out why 

you would do such violence to the balance of the power, if you were 

to read that out. 

What is interesting is that the other guy on the committee of detail that served with Randolph was John Rutledge. Rutledge was 

given a recess appointment. And it met Randolph’s test. I will note, 

there is a reason why we want Congress involved, because Rutledge was found to be perfectly insane. He suffered from what were 

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self in the river. That probably would have come out in a confirmation hearing. [Laughter.] 

Tthat is probably the reason why the Framers wanted to keep 

this narrow. 

Mr. POE. If I may have one additional minute, with unanimous 

consent. 

Didn’t the Framers want the Senate involved on appointments? 

The President appoints them. The Senate, Congress, the people approve it. Who rules over us? I mean that is the original intent. And 

that is the rule, not the exception, where the President sneaks in 

and appoints them in between gavels. That is not the purpose. The 

purpose is, generally, let the Senate confirm these people. 

Mr. TURLEY. Absolutely. The center of gravity here is the preceding clause. The appointments clause. That is what defines the 

issue. What is happening is, this is the example of the exception 

swallowing the rule, because the appointments recess clause is a 

mere supplement, as Hamilton said, to the appointments clause. It 

is being used today to essentially devour the appointments clause. 

It is also very important, when you read the OLC’s opinion, they 

missed the point that you just made. This is a shared power. The 

President does not have the authority, is not supposed to have the 

authority to place high-level officials into offices. They didn’t want 

that, and so power is shared with the Senate. That is what does 

such great violence, as Randolph would say, if you allow the recess 

appointments clause to be torn from its constitutional moorings. 

Mr. POE. I yield back. Thank you, Mr. Chairman. 

Mr. SMITH. Thank you, Mr. Poe. 

The gentleman from Texas, Mr. Gohmert, is recognized. 

Mr. GOHMERT. Thank you, Mr. Chairman. And we do appreciate 

all the witnesses. I had a chance to review materials that you had 

submitted before. And I apologize for not being here for the entire 

hearing. 

But as my former judge colleague here expressed concern, if the 

President can take this interpretation of a recess to make an appointment, then it certainly begs the question as to, is there any 

time that he can make a recess appointment. 

And Professor Turley, we don’t always end up on the same side, 

but I always have great respect for your intellectual approach to 

issues. And if you have been asked this, and I ask your indulgence, 

but has there ever been a President who has asserted that recess 

appointments could be made during less than a 3-day recess, when 

there has been no need to ask the House for authority under the 

Constitution for a formal recess? 

Mr. TURLEY. Thank you, Congressman. I am happy to say we do 

sometimes agree. We certainly have had many—— 

Mr. GOHMERT. Yes, we do. 

Mr. TURLEY [continuing]. Conversations over the years about the 

Constitution. 

Mr. GOHMERT. I hope that doesn’t scare you when we do. 

Mr. TURLEY. The answer is no. Once we tore ourselves away 

from the text, and to Wirt’s credit, he said that is exactly what I 

am doing. That is, Wirt said I acknowledge that the text says this, 

and I am going to do that. 

85 

Once we cross that Rubicon, we found ourselves floating, as to, 

it put all the pressure on what would constitute a recess. Then 

there were a lot of opportunistic interpretations given throughout 

the years. The one line that was drawn was the 3-day recess, because it would make sense. You look at the adjournment’s clause. 

Clearly, 3 days does not constitute a recess under that clause. It 

was a very logical connection. So the OLC said we have to accept 

that certainly if it is less than 3 days, it can’t be a recess. 

They say that they are not getting rid of that line in the current 

OLC opinion. They do. That is, they make it perfectly clear that it 

is what the President says it is. They also omit some critical details. They rely on a thing called the Dougherty opinion, which is 

out of the OLC. A Dougherty in the opinion says that an adjournment of, quote, 5 or even 10 days could not constitute a recess. 

So, even the opinion they rely upon returned to that touchstone 

of you can’t take such a brief period, a blink, and say they are not 

available for advice and consent. 

Mr. GOHMERT. Anyone else aware of any President who has ever 

taken this position since we had a constitution ratified in 1789? 

Mr. COOPER. I would only add that there has been an episode, 

which has been referred to here previously today a couple of times. 

In the early 1900’s, when Theodore Roosevelt made some 160 recess appointments to the military offices, literally between two 

whacks of the gavel, as one of the Congressmen put it. And this 

was in a constructive recess, according to Theodore Roosevelt. It 

was a shameful abuse of Presidential power and a plain violation, 

I think, of the intendment of the recess appointment clause. 

Mr. GOHMERT. So this President, this White House is wanting to 

identify with that shameful abuse of the recess appointments, apparently. 

Mr. COOPER. Well, I have been chagrined that that episode has 

been called upon by the President and by his lawyers as authority. 

The Senate report that that episode yielded did say, as has been 

quoted here today, that the recess of the Senate cannot be imaginary, it must be real. It has to be a time when the Senate’s chamber is empty. But when you understand what they were reacting 

to, what they were saying made perfect sense, with a President declaring the instant of time between two whacks of the gavel being 

a recess, a constructive recess. 

Mr. GOHMERT. But since the recess normally has to be 3 days, 

of course, the recess clause says if it is more than that, the House 

has to concur in it. But let me ask one quick question, if I have 

the indulgence and unanimous consent to ask this question. 

But in each of your opinions, who would be required to have 

standing to raise this issue? I realize the Supreme Court wants to 

make sure there is a justiceable issue. And then I have heard some 

of the Supreme Court Justice talk about standing is one of their 

favorite tools in order to prevent from having to make a decision. 

But surely, a U.S. Senator would have standing to raise this 

issue, would they not? 

Mr. TURLEY. It is actually a tough call. Both Chuck and I have 

been in this situation in court. And I believe that they should have 

standing. And I think a credible claim could be made. But whenever you have Members standing claims, you start out with a 

86 

heavy presumption that they don’t have standing. That does not 

mean that other people would not have clear standing. Those people affected by the judgments of the agency, or individuals, would 

have a clear issue. And, in fact, a good challenge might combine 

all of the above. That is, they may make a combination of people 

to make sure you have standing to bring this forward. 

To me, I would be appalled for a court to, if it has legitimate 

standing, not to rule on this. I know they prefer the political 

branches to hash it out, but this is becoming cert. 

Mr. COOPER. Can I only add this? I rather doubt that a Member 

of the Senate will be held, anyway, to have standing, having lost 

that argument in a previous litigation. But someone with standing 

will come forward. 

Mr. GOHMERT. Well, who would that be? 

Mr. COOPER. Well, it will be an individual or an entity that has 

been adversely affected by a ruling by Mr. Cordray’s agency or by 

the NRLB. They will have standing and they will definitely bring 

forward. 

And the one thing that really the President has done here is that 

when that litigation comes forward, all the recess appointment 

chips will be pushed in the middle of the table. That is what the 

President has done. Not just whether or not this was a recess, 

these pro forma sessions, or whether they were true sessions of 

Congress, but whether or not a recess is possible under the plain 

language of the clause, when the vacancy that is being filled did 

not actually happen during the recess. That is going to be on the 

table. Any litigator zealously advancing his client’s interests is definitely going to litigate that issue. And so, the President, in taking 

this act, has pushed all the recess appointment chips in the middle 

of the table. 

Mr. GOHMERT. Do you all agree on that? 

Mr. ELWOOD. Absolutely. 

Mr. GOHMERT. If someone is harmed by a decision by an act by 

one of these appointees, then they should have standing. Then all 

decisions by the appointees and all the appointments made during 

the recess would be an issue. 

Mr. ELWOOD. That is right. As Professor Turley said, he described it as a perfect storm of recess appointment controversies. 

Another way is this is kind of one-stop shopping for addressing virtually every issue that is raised in recess appointments litigation, 

if it is true. It is an intra-session recess. It didn’t arise during the 

recess. So not to mix metaphors, but it is absolutely true. All the 

chips are on the table. 

Mr. GOHMERT. And I appreciate the Chairman’s indulgence, and 

really appreciate you all’s insights. Thank you. 

Mr. SMITH. Thank you, Mr. Gohmert. 

The gentleman from Georgia, Mr. Johnson, is recognized. 

Mr. JOHNSON. Thank you, Mr. Chairman. Good morning to the 

witnesses. 

We are all aware that this hearing is entitled ‘‘Executive Overreach: The President’s Unprecedented Recess Appointments.’’ I 

would suggest, however, that we have a hearing to examine the unprecedented obstruction of the Senate republicans of the confirmation process, and how it is hurting our economic recovery, our efVerDate Aug 31 2005 13:06 Apr 13, 2012 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6601 H:\WORK\FULL\021512\72903.000 HJUD1 PsN: DOUGA
87 

forts at law enforcement, and also the ensuring of liberty and justice for all Americans. 

For example, we do not have a permanent director for the ATF, 

haven’t had one since 2003. Based on this kind of refusal to confirm agency leaders, and Federal judges, and others, some would 

say that this Senate confirmation process is flawed and plain old 

dysfunctional. 

Senate republicans have not been shy about their goal, which is 

to defeat President Obama, make him a one-term President. I 

think that is pretty well known and accepted, due to the public utterances of various republican leaders, particularly, Mitch 

O’Connell, of the Senate. 

Mr. Cooper, Mr. Elwood, and Mr. Turley, I would like for you to 

comment on the unprecedented delays and refusals to confirm 

Presidential appointees during President Obama’s administration, 

and whether or not this delaying tactic is hurting America. 

Mr. Cooper, you first. And be as succinct as you can, please. 

Mr. COOPER. Well, I would only say I don’t think that the delays 

that we are seeing now in the confirmation process are unprecedented. I think this is a problem. And I agree with you, Congressman Johnson, it is a very serious problem. The dysfunctionality of 

the appointment process. But it is not one that is, you know, just 

now coming. It is one that we have unfortunately, I believe, witnessed growing worse and worse over the course of the last few 

decades. 

Mr. JOHNSON. And I could not disagree with you on that. I believe that you are correct. But at this time, you know, we are either 

looking at this problem or we are looking past the problem for partisan reasons. 

Mr. Elwood, what do you say about it? 

Mr. ELWOOD. I agree with what Mr. Cooper said, that it has been 

a problem for decades. The one thing I will point out is that the 

founding generation viewed, apparently, even in a space of a couple 

weeks, with an office being not filled, as too much, just based on 

the recess appointment practices of the early Presidents, who 

would recess appoint people when the Senate was coming back in 

a couple of weeks. And this was when confirmations didn’t take a 

long time. People were typically confirmed after 2 days, literally. 

Mr. JOHNSON. So this is really an affront to the Framers of our 

Constitution, in terms of the delay in confirming Presidential appointees. 

Professor Turley, what would you have to say about it, sir? 

Mr. TURLEY. Congressman Johnson, it is good to see you. The 

last time we saw each other, you were my opposing counsel in the 

Porteous impeachment trial in the Senate. 

Mr. JOHNSON. You did a fantastic job. 

Mr. TURLEY. Well, I much prefer this relationship. But I would 

certainly echo what was said before, that it is not unprecedented. 

Although, I will add, it was Mr. Elwood, who I think has done a 

terrific job and a well-balanced job in presenting the facts and the 

history, but I will note that even though a matter of 2 weeks was 

viewed as sufficient for an appointment, back then there were 

fewer Federal offices. So a vacancy had a much more pronounced 

88 

effect upon the Federal Government than it does today. But I certainly agree with him that that period existed. 

And I will also add that the Framers anticipated that there 

would be these moments. They lived in rather rabid political moments. They make the current Congress look like the very model 

of efficiency, compared when you look back at where they were. 

The President’s option is to do what he did in the Cordray case. 

He went to Ohio. He rallied people in a speech. He said, you know, 

this is wrong. We have an election, and you have to vote to change 

it. I think the Framers viewed that as the course, as opposed to the 

President saying, so, I am just going to define this as not being a 

session. I’m going to go ahead and circumvent Congress, because 

I can’t get their advice and consent on a nomination that I previously gave them, and they said no. 

Mr. JOHNSON. Well, I will tell you, even though the Framers, 

during that era of governance, may have been in practice worse 

than we are today, they still set forth aspirational goals for us to 

aspire to. 

And Mr. Elwood, if you would, how do you respond to those who 

argue that these recent recess appointments to the NLRB and the 

CFPB do us more harm than good? 

Mr. ELWOOD. Well, I am not sure what all harms they are saying 

will arise. I have testified earlier that I don’t view these recess appointments—although, I concede that they are unprecedented, because the situation is unprecedented—I don’t consider this to be a 

crisis. 

And even though it certainly, I think, sours the relationship between the branches, recess appointments, they can cause the 

branches to work more closely, because they understand that the 

President, you know, may just recess appoint people if they don’t 

cooperate. 

So I think it is not something I understand, the relationship between the branches, as a practical matter, but I certainly know 

that it can actually, in a strange way, and in some circumstances, 

not all, actually promote closer cooperation on appointments. 

Mr. COOPER. Mr. Johnson and Mr. Chairman, may I have just a 

moment to footnote a point that was previously made? 

Mr. SMITH. Yes. Of course. 

Mr. COOPER. In the early days of the Republic, I think we have 

to keep in mind, when an office became vacant, the job literally 

didn’t get done, because it was only one person. We did not have 

a bureaucracy like we have today. And we didn’t have a vacancy 

act, which, by operation of law, basically renders a subordinate officer acting as the acting officer to do the functions of the now vacant office. 

So it is a much different situation today than it was. Not to say 

that it isn’t dysfunctional, and that it is definitely an unfortunate 

and sometimes costly thing for these positions to go unfilled for 

prolonged periods of time. But it is rarely the case that the function itself is not being done. 

Mr. JOHNSON. Well, but isn’t it a fact, though, that a leaderless 

bureaucracy, you have a bureaucracy that is going to do something, 

without leadership, can’t that state of being do more harm than 

good, as opposed to not having any leadership, whatsoever? It is 

89 

the same thing. But no leadership and no bureaucracy is a little 

better than a big bureaucracy and no leadership. 

Mr. COOPER. I don’t know how I would try to quantify those 

harms, but I would concede to you that leaderless bureaucracy for 

a prolonged period, with a confirmed officer, is a bad thing for the 

agency, and a bad thing for the people’s business. 

Mr. JOHNSON. Okay. 

Mr. SMITH. Thank you, Mr. Johnson. The gentleman’s time has 

expired. 

I want to thank the panelists for their comments today. This was 

excellent testimony and very helpful to all of us. I also want to single out the gentleman from California, Mr. Lungren, for staying the 

entire period of the hearing. He gets the best attendance award of 

the day. 

And with that, without objection, Members will have 5 additional 

days to submit questions, or additional materials for the record. 

And we stand adjourned. 

[Whereupon, at 12:33 p.m., the Committee was adjourned.] 

(91) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable Lamar Smith, a Representative in 

Congress from the State of Texas, and Chairman, Committee on the Judiciary 

On January 4, the President announced his unprecedented appointments of three 

individuals to the National Labor Relations Board and Richard Cordray as Director 

of the Consumer Financial Protection Bureau. These appointments go well beyond 

past presidential practice and raise serious constitutional concerns. 

The Constitution provides the President with the authority to ‘‘fill up all vacancies 

that may happen during the recess of the Senate.’’ However, the President’s recent 

appointments were made at a time at which the Senate was demonstrably not in 

recess. 

During this supposed recess the Senate passed one of the President’s leading legislative priorities, a temporary extension of the payroll tax cut. It also discharged 

its constitutional obligation to come into session beginning on January 3 of every 

year. 

Moreover, the Senate itself, which has the power under Article I, Section 5 of the 

Constitution to determine ‘‘the rules of its proceedings,’’ did not believe it was in 

recess when these appointments were made. As Senate Majority Leader Reid stated 

on the Senate floor regarding a similar period in 2007, ‘‘the Senate will be coming 

in for pro forma sessions . . . to prevent recess appointments.’’ What was acceptable 

for the Constitution in 2007 should be equally acceptable today. 

In fact, not only was the Senate not in recess when the President made these appointments, but it appears that under the Constitution it legally could not have 

been. 

The Constitution provides that neither house of Congress may adjourn for more 

than three consecutive days without the consent of the other house. Accordingly, the 

Senate could not have adjourned its session and gone into recess without the consent of the House, which the House did not give. 

Despite these facts, the President has claimed the unilateral authority to declare 

that the Senate is in recess for purposes of the recess appointments clause. 

Such an astounding assertion of power raises serious constitutional concerns and 

has the potential to adversely affect the balance of power between the President and 

the Congress. 

Regrettably, these appointments are part of a pattern of the President bypassing 

Congress and exerting executive power past constitutional and customary limits. 

For example, when the President’s cap-and-trade legislation failed to pass Congress, he had the Environmental Protection Agency issue regulations instead. 

92 

When Congress refused to enact the President’s ‘‘card check’’ legislation doing 

away with secret ballots in union elections, the President’s National Labor Relations 

board imposed the change by administrative decree. 

And, when Congress defeated the DREAM Act, the President’s illegal immigration 

amnesty proposal, the Administration instructed immigration officials to adopt enforcement measures that often bring about the same ends as the DREAM Act. 

In addition to disrespecting Congress’s constitutional authority when Congress 

has refused to enact his policy preferences, the President has also ignored laws 

passed by Congress. 

For instance, rather than seeking legislative repeal of the Defense of Marriage 

Act, the President simply instructed his Justice Department to stop defending its 

constitutionality. And the President ignored the Religious Freedom Restoration Act 

by failing to give religious organizations an exemption from the Health and Human 

Services’ contraceptive mandate. 

One of the fundamental principles of American democracy is that we are a nation 

of laws. America’s elected leaders swear to follow our Constitution and our statutes 

even when they do not agree with them. 

With these recess appointments, the President may have violated the constitution 

by disregarding the rule of law. 

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Prepared Statement of the Honorable Trent Franks, a Representative in 

Congress from the State of Arizona, and Member, Committee on the Judiciary 

No one questions that when the Senate is in recess the President has the authority to make recess appointments. That power is clearly set forth in the Constitution. 

Further, no one questions that recess appointments have always been controversial. 

Presidents of both political parties have made politically unpopular recess appointments. And, no one questions whether it can be frustrating to try to get nominees 

through the Senate. Senate delaying tactics have stalled nominees on both sides of 

the aisle. 

But never before in this country’s history has a President made a recess appointment during a time when the Senate was not actually in recess. Because that—to 

quote former Attorney General Meese—‘‘is a constitutional abuse of high order.’’ 

In 2007, Senate Majority Leader Reid and Senate Democrats, which at the time 

included then-Senator Obama, adopted the practice of holding pro forma sessions, 

rather than adjourning, to block President Bush’s ability to make recess appointments. The President must think that the rules he and his Senate Democratic colleagues developed to hamstring President Bush do not apply to him. But it is an 

axiom of democratic government that the same rules apply no matter who holds office. 

Thus, although the President may object to the Senate’s practice of holding pro 

forma session instead of recessing, he may not simply ignore the factual realities 

and make recess appointments when the Senate is not in recess. Even President 

Bush, who my friends on the other side of the aisle assailed for taking unilateral 

executive action, refused to provoke a constitutional crisis by making recess appointments while the Senate was meeting regularly in pro forma session. 

The President’s supporters may argue that the President sought the Justice Department’s advice before making these appointments and that the Department advised him that the appointments were permissible. Leaving aside the fact that the 

legal memo supporting the President’s appointments was belatedly issued two days 

after the appointments were announced, the President by his own words has acknowledged that the reason he appointed these individuals had nothing to do with 

the only justification the Justice Department offered in support of his exercise of 

power. 

The Justice Department asserted that the President has the authority to determine that the Senate is ‘‘unavailable to perform its advise-and-consent function and 

to exercise his power to make recess appointments.’’ Yet, in making these appointments, the President did not determine that the Senate was unavailable to confirm 

his nominees; he determined the Senate was unwilling to confirm them. In fact, in 

appointing Mr. Cordrary the President declared, ‘‘I refuse to take no for an answer.’’ 

Mr. Chairman, just as the President has refused to take no for an answer, Congress should refuse to accept the legality of these appointments. If these appointments are allowed to stand unchallenged, they will threaten the bedrock principle 

of separation of powers that lies at the base of our constitutional republic. 

By circumventing the Senate’s advice and consent role, the President is concentrating the power of appointment in the Executive Branch alone. However, as James 

Madison recognized, ‘‘[t]he accumulation of all powers legislative, executive and judiciary, in the same hands, whether of one, a few or many, . . . may justly be pronounced the very definition of tyranny.’’ 

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