Executive Session

Floor Speech

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Mr. LEE. Mr. President, I rise in opposition to this nomination. I do so not because of the qualifications of this particular nominee, but instead I do so in defense of the U.S. Constitution.

In opposing President Obama's appointments, I have repeatedly made clear this is a constitutional issue. Each time I have spoken--and I have done so on numerous occasions--I have set forth in detail the reasons why I believe on a legal basis, on a constitutional basis, why President Obama's recent purported recess appointments are unprecedented and unconstitutional. I have also made absolutely clear that my opposition to President Obama's appointments is not partisan and that I will hold a Republican President equally accountable whenever any Republican President makes a similarly unconstitutional claim of power.

This President has enjoyed my cooperation up to this point. I voted for many, if not most, of his nominees. That cooperation cannot continue--not in the same way he has enjoyed it up to this point. In light of the fact he has disrespected our authority within this body, he has disrespected the Constitution.

Unfortunately, many of my colleagues have refused to engage on the real substance of this issue. Instead, they have repeatedly changed the subject to partisan politics, the nominations process, and Richard Cordray's qualifications to head the CFPB. Even worse, and despite my repeatedly making clear I intend to hold any Republican President to the same standard to protect the institutional and constitutional prerogatives of the Senate rather than the interests of any political party--given those are at stake--the Democrats, including the President himself, have accused me of playing politics. I wish to be clear again: This is not the case. I am here to defend the constitutional prerogatives of the Senate and the separation of powers and the system of checks and balances that are at the heart of our constitutional system.

The Senate's advice-and-consent role is grounded in the Constitution's system of checks and balances. In Federalist 51, James Madison wrote:

..... the great security against a gradual concentration of the several powers in the same [branch of government], consists in giving to those who administer each [branch] the necessary constitutional means and personal motives to resist encroachments of the others.

Among those constitutional means is the Senate's ability to withhold its consent for a nominee, forcing the President to work with Congress to address that body's concerns.

The key conclusion of the Department of Justice's Office of Legal Counsel memorandum, on which President Obama relied

in making these recess appointments, is that the President may unilaterally decide and conclude that the Senate's pro forma sessions somehow do not constitute sessions of the Senate for purposes relevant to the recess appointments clause, in clause 3 of article II, section 2. If allowed to stand, this deeply flawed assertion would upend an important element of the Constitution's separation of powers. Under the procedures set forth by the Constitution, it is for the Senate, not for the President, to determine when the Senate is in session. Indeed, the Constitution expressly grants the Senate that prerogative, the power to ``determine the Rules of its Proceedings.''

Commenting on this very provision in his authoritative constitutional treatise, Joseph Story noted:

[t]he humblest assembly of men is understood to possess [the power to make its own rules,] and it would be absurd to deprive the councils of the nation of a like authority.

Yet this is precisely the result of President Obama's attempt to tell the Senate when it is or is not in recess.

I am saddened some of my colleagues in the Senate are not more jealous of this body's rightful constitutional, institutional prerogatives. As they well know, the Constitution's protections do not belong to any one party, and its structural separation of powers is meant to protect against the abuses of present and future Presidents of both parties. Acquiescing to the President in the moment may result in temporary political gain for the President's party, but relinquishing this important piece of the Senate's constitutional role has lasting consequences for Republicans and Democrats alike.

It is on this basis, and because of the oath I have taken to uphold the Constitution of the United States, that I find myself dutybound to oppose this nomination. I strongly urge my colleagues on both sides of the aisle to take seriously their obligation both to the Constitution and to the institutional prerogatives of the Senate and to do the same.

I yield the floor

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