Recess Appointments

Floor Speech

Mr. GRASSLEY. Mr. President, I rise today to praise the Supreme Court's decision to strike down President Obama's illegal recess appointments. Article II, section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers:

First, it provides that the President nominates and, by and with the advice of the Senate, appoints various officers.

Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess.

On January 4, 2012, the President made four appointments. They were purportedly based on the recess appointments clause. He took this action even though they were not made, in the words of the Constitution, ``during the recess of the Senate.'' These appointments were blatantly unconstitutional. They were not made with the advice and consent of the Senate, and they were not made ``during the recess of the Senate.'' In December and January of 2011 and 2012, the Senate held sessions every 3 days. It did so precisely to prevent the President from making recess appointments. It followed the very same procedure as it had during the term of President Bush, and that was done at the insistence of Majority Leader Reid. President Bush then declined to make recess appointments during these periods, thus respecting the desire of the Senate and the Constitution that we were in session. But President Obama chose to attempt to make recess appointments despite the existence of the Senate being in session.

The Supreme Court said today:

[F]or purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.

That is a quote from the decision.

No President in history had ever attempted to make recess appointments when the Senate said it was in session. And I am a little surprised, since President Obama had served in the Senate, that he would not know how this had been respected in the past by Presidents.

President Obama failed to act ``consistent with the Constitution's broad delegation of authority to the Senate to `determine the Rules of its Proceedings,' '' as the Constitution states.

These illegal appointments represent just one of the many important areas where President Obama has disregarded the laws with his philosophy of the ends justify the means.

We should all be thankful the Supreme Court has reined in this kind of lawlessness on the part of this administration, and it should also bring some confidence that at least from time to time--maybe not as often as our constituents think--the checks and balances of government do work.

The Supreme Court was called upon to decide whether President Obama could make recess appointments even when the Senate was in pro forma session. Fortunately for the sake of the Constitution and the protection of individual liberty, the Supreme Court said he could not. This is a very significant decision. It is the Supreme Court's biggest rebuke of any President--because this was a unanimous decision--since 1974 when it ordered President Nixon to produce the Watergate tapes. The unanimous decision included both Justices whom even this President appointed to the Supreme Court.

That shows the disregard in which the President held this body and the Constitution when he made these appointments. Remember, as I just said, I am a little surprised because at one time he was Senator Barack Obama.

Thanks to the Supreme Court, the use of recess appointments will now be made only in accordance with the views of the writers of the Constitution, our Founding Fathers.

It is worth keeping in mind what the President, the Justice Department, and the Senate said at the time of these appointments. The President said his nominees were pending and he would not wait for the Senate to take action if that meant important business would be done. So the President stated in another way that ``I have a pen and a phone, and if Congress won't, I will.'' But the Supreme Court has made clear that failure to confirm does not create Presidential appointment power.

The appointments were so blatantly unconstitutional that originally there was speculation that the Justice Department had not approved their legality. But, in fact, the Department's Office of Legal Counsel had provided a legal opinion that claimed to justify the appointments--in other words, justify the unconstitutional action of the President. The Department's Office of Legal Counsel's reasoning was preposterous, and this unanimous decision backs that up. That office defined the same word--``recess''--that appears in the Constitution in two different places differently and without justification. It claimed that the Senate was not available to do business, so that it was in recess when the President signed legislation that the Congress passed during those pro forma sessions. The Department allowed the President, rather than the Congress, to decide whether the Senate was in session.

As today's Supreme Court unanimous decision makes clear, the Office of Legal Counsel opinion was an embarrassment, reflecting very poorly on its author. She had told us in her confirmation hearing that she would not let her loyalty to the President overcome her loyalty to the law. This Office of Legal Counsel opinion proved otherwise. It said the President had a power he did not have. He did not have that power, as expressed today by that unanimous decision of the Supreme Court.

Those partisans in that office who defended that opinion and its author should be humbled and should take back their misplaced praise--not that I expect them to do so.

The Office of Legal Counsel opinion furthered a trend for that office from one which gave the President objective advice about his authority to one which provided legal justification for whatever action he had already decided he wanted to take. Perhaps now that the office has been so thoroughly humiliated, it will hopefully conclude that the Department and the President will be better served by returning to the former role of that office as a servant of the law and not a servant of the President.

The other statements to keep in mind were from Senators. No Senator of the President's party criticized President Obama for making these clearly unconstitutional appointments, even though they felt we ought to protect against President Bush doing that. Rather than protect the constitutional powers of the Senate and the separation of powers, they protected their party's President.

Those were not the Senate's best moments. This underscores again the need to change the operation of the Senate. Appointment powers and the separation of powers are not simply constitutional concepts, they are the rule for how the American people are protected from abuse by government officials. They exist not so much to protect the branches of government but to safeguard individual liberty.

I often quote from Federalist Papers, this time from 51. Madison wrote that the ``separate and distinct exercise of different powers of government'' is ``essential to the preservation of liberty.''

President Obama's unconstitutional recess appointments are part of a pattern in which he thinks that if he cannot otherwise advance his agenda, he can unilaterally thwart the law. That is a pretty authoritarian approach to governing. Whether it is with respect to drugs, immigration, recess appointments, health care, and a number of other areas, President Obama has concluded he can take unilateral action regardless of the law. And, of course, as we see in the case of these appointments, the Justice Department has aided and abetted him.

Praise today to the Supreme Court for forcing the President to confront the errors of his ways, for enforcing the constitutional structure that protects our freedom, and maybe cause him to modify that statement he made earlier this year that:

``When Congress won't, I will, because I've got a pen ..... and I've got a telephone ..... ''

I yield the floor.

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