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Post Event Summary
Tuesday at AEI, four distinguished lawyers aggressively debated the constitutionality of the president’s recent "recess" appointments during the Senate's 2011-2012 pro forma sessions. First, Morton Rosenberg asserted that the president was explicitly violating the Constitution by making recess appointments when the Senate was in pro forma sessions, thereby avoiding recess by its own constitutional authority to develop its own rules. Douglas Kmiec countered that the Senate's creation of pro forma sessions simply to inhibit the executive branch violated the honest interface that the framers intended between the branches of government. David Rivkin Jr. concurred with Rosenberg's conclusion about the unconstitutionality of the appointments, also noting that the session could not have been pro forma at all, since the Congress did perform legislative tasks during the recess period, including passage of the payroll tax cut extension. Peter Wallison (AEI), who moderated the event, questioned whether the Senate could possibly protect itself from the president's appointing officials without its consent, but the debate over the recess period continued to dominate the discussion among the panel members. Panelist Walter Dellinger said that from December 17, 2011, to January 23, 2012, the Senate was in session only when it met every third day for pro forma sessions; consequently, he sided with Kmiec in advocating that the administration was not wrong in its recess appointment.
In early January, President Obama issued recess appointments for the director of the Consumer Financial Protection Bureau and three members of the National Labor Relations Board. The Senate had agreed to adjourn and convene only pro forma sessions with no business conducted, but had not formally voted to recess. The president and those who support the constitutionality of these appointments argue that the Senate's inability to act on his nominations was impairing his ability to carry out his responsibilities as president; as a result, the president was justified in interpreting the absence of virtually all senators from regular attendance as the "recess" contemplated by the Constitution's framers. Opponents argue that the Senate is the only authority that can determine whether it is in constitutional recess, and if the president is empowered to make that determination for himself, this would vitiate the Senate's constitutional authority to confirm presidential appointments.
At this event, four distinguished lawyers who have significant experience both in government and constitutional law will discuss the key constitutional issues that are essential to understand in this controversy, the precedents from similar disputes in the past, and the implications for the future if either the president’s position or the opponents' position is ultimately upheld by the courts.
If you cannot attend, we welcome you to watch the event live on this page. Full video will be posted within 24 hours.
WALTER DELLINGER, O'Melveny & Myers
DOUGLAS KMIEC, Pepperdine University School of Law
DAVID RIVKIN, Baker & Hostettler
MORTON ROSENBERG, The Constitution Project
PETER J. WALLISON, AEI
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Walter Dellinger is a member of the Appellate Practice at O’Melveny, heads the Harvard/O’Melveny Supreme Court and Appellate Practice Clinic and is a visiting professor of law at Harvard University. Over the past four years, he has argued Alabama v. North Carolina, Exxon Shipping Co. v. Baker, Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County and Heller v. District of Columbia before the U.S. Supreme Court. After serving in early 1993 as an adviser to the president on constitutional issues, Mr. Dellinger was nominated by the president to be assistant attorney general. He was confirmed by the Senate in October 1993 and served for three years, during which time he was also head of the Office of Legal Counsel. Mr. Dellinger was then acting solicitor general for the 1996 to 1997 term of the U.S. Supreme Court. He has published articles on constitutional issues for scholarly journals including The Harvard Law Review, The Yale Law Journal and the Duke Law Journal, and has written for The New York Times, The Washington Post, Newsweek, The New Republic and The London Times.
Douglas W. Kmiec is Caruso Family Chair and professor of constitutional and human rights law at Pepperdine University. He was previously U.S. ambassador to the Republic of Malta, where he completed the construction of a $125.5 million embassy compound and upgraded the security and economic ties between the Mediterranean and the United States. Mr. Kmiec had previously served as head of the Office of Legal Counsel (U.S. assistant attorney general) for Presidents Ronald Reagan and George H. W. Bush, where his opinion writing led to the nondiscriminatory application of federal law to those handicapped by AIDS. Mr. Kmiec’s academic career includes serving as dean and St. Thomas More Professor of The Catholic University of America in Washington, D.C., and professor and director of the Center on Law and Government at the University of Notre Dame, where Mr. Kmiec taught for close to two decades. He has likewise served as a White House fellow and a Distinguished Fulbright Scholar on the United States Constitution in Asia.
David B. Rivkin Jr. is a member of Baker Hostetler’s litigation, international and environmental groups and co-chairs the firm’s appellate and major motions team. He has extensive experience in constitutional, administrative and international law litigation. From 1993 to 1999, Mr. Rivkin was a member of the Hunton and Williams law firm. Before returning to private practice, he served from 1987 to1993 in various capacities in the federal government. From 1992 to1993, he was associate executive director and general counsel of the president’s Council on Competitiveness. While at the White House, he was responsible for the review and analysis of legal issues related to the regulatory review conducted by the council. He handled the development and implementation of President George H.W. Bush’s deregulatory initiatives, which entailed review of all existing federal regulatory strictures and the application of a more rigorous and cost-effective standard to new regulations. Mr. Rivkin also served as the associate general counsel at the U.S. Department of Energy from 1990 to 1991. Mr. Rivkin played a significant role in developing the Reagan and Bush administrations’ regulatory and legislative proposals affecting natural gas and electric utility industries. He is a prolific writer and has published numerous papers, articles, book reviews and book chapters on a variety of international, legal, constitutional, defense, arms control, foreign policy, environmental and energy issues
Morton Rosenberg is a fellow at the Constitution Project, where he wrote a monograph on congressional investigative oversight entitled “When Congress Comes Calling: A Primer on the Principles, Practices and Pragmatics of Legislative Inquiry,” which was published in July 2009. He also served as a consultant to the general counsel of the Public Company Accounting Oversight Board (PCAOB) and its private counsel in preparing briefs and presenting oral arguments before the Supreme Court in the 2009 case Free Enterprise Fund v. PCAOB, which challenged the constitutionality of the appointment and removal provisions of PCAOB’s enabling legislation. Before that, he was a specialist in American public law with the American Law Division of the Congressional Research Service, Library of Congress. Mr. Rosenberg specialized in the areas of constitutional law, administrative law and process, congressional practice and procedure, and labor law, and in the problems raised by the interface of Congress and the executive branch. Mr. Rosenberg was named the recipient of the 2004-2005 Mary C. Lawton Award for Outstanding Public Service by the American Bar Association’s Section of Administrative Law and Regulatory Practice in November 2005.