On the recordJanuary 30, 2013
I rise to talk about a piece of legislation I intend to introduce on behalf of Senator Cruz and myself, The Advice and Consent Restoration Act, which responds to last week's decision announced on Friday by a three-judge panel on the DC Circuit Court of Appeals, where they unanimously ruled that President Obama violated the Constitution when he made so-called recess appointments to the National Labor Relations Board. They are so-called recess appointments because the Senate was still in session. The fundamental question is does the President get to decide whether the Senate is in session or does the Senate get to decide whether the Senate is in session. If that question had been debated when the Constitution was being debated, I am sure they would have said: That will never come up; there is no way we are going to develop a system with this separation of powers and the President will decide whether the Senate is in session. This President did decide that, and the court agreed with the argument that a number of Senators, Senator McConnell and I, along with 40 of our colleagues, filed in an amicus brief that clearly made the point the Senate gets to decide when the Senate is in session. We argued that the Constitution does not empower the President to make this decision. The court agreed with that argument, stating that any other interpretation of the Constitution would give the President free rein to appoint his desired nominees anytime he pleases.…
