[国会记录第158卷第14号（2012年1月30日星期一）][参议院][第149-S151页]休会任命格拉斯利先生。主席女士，一周前的今天，我在参议院就奥巴马总统绕过参议院的决定以及宪法发表了讲话，在总统休会任命权不适用的情况下作出了四次“休会”任命。我详细解释了为什么奥巴马政府试图为奥巴马总统的行为辩护而发布的法律备忘录不具有法律效力。上周四，我陈述了这不是一个孤立的事件，也不是一场技术性的法律纠纷。相反，总统最近的行动是无视制衡宪法体系的一部分。今天，我将谈谈为什么这些批评是合理的，为什么这些批评是必要的。首先，美国参议员批评法律顾问办公室和参议院确认的办公室负责人发表的法律意见是否合法？我毫不怀疑，参议员们可能会批评这些观点，并在事实证明有必要时，询问该办公室及其负责人是否正在行使维护宪法所需的独立性。最近，我们在媒体上看到一些人显然不同意这一点。他们说，参议员批评经参议院确认的官员的独立性和判断是错误的。他们说参议员所能做的就是批评这位官员的实质性论点。我说废话。当媒体发表这些言论时，它只是试图转移人们对舆论的实际结论和推理的弱点的注意力。在我上周的发言中，我阐述了我对法律顾问办公室内容的异议。当然，参议员和政府官员可以在法律上得出不同的结论；每个人都可以有一个合理的观点；但事实并非如此。如果法律顾问办公室要成为一些媒体所称的“政府的宪法良知”，它必须行使一定程度的独立性，正如我在发言中提到的那样。当一位对自己的权力持有广泛观点的总统问司法部官员（他们的工作归功于他）他是否有宪法或法律权力采取此类行动时，总是有可能压力会超过他们的责任，从而提供他们最好的法律判断。这就是为什么在塞茨女士的确认听证会和后续沟通中，我们付出了非常艰苦的努力，让她有机会在记录上表明她承诺提供独立的法律咨询，以确保她将对法律和宪法的忠诚置于对总统的忠诚之上。这就是我们的目的。塞茨女士承诺独立行事。她承诺，如果她认为宪法遭到违反，她不会袖手旁观。判断法律顾问办公室是否提供了独立建议的唯一方法，判断压力是否受到抵制的唯一方法，是审查法律顾问办公室提供的论点和理由。媒体无法回应对该办公室负责人是否独立以及是否在未经审查的情况下做出了良好判断的批评。仅仅媒体同意她的结论是不够的。在本案中，法律顾问办公室的意见分析非常差，以致于提出了有关判决和独立性的合理问题。法律顾问办公室应该在总统采取行动之前向他提供客观的法律意见。它不应该为总统已经做出的行动决定提供一个经过深思熟虑的合理化理由。在这里，意见书中的论点是如此薄弱，以至于一个公正的人可以质疑意见书作者的独立性和判断。例如，该意见在内部是不一致的。它正确地认识到，总统在休会期间作出任命的能力取决于参议院处理事务的能力。但是，在决定备选会议是否构成休会时，该意见根本不考虑参议院进行业务的能力以及它能做什么。相反，它依赖于个别参议员所说的，而不是该机构所说的或能做的，而且它不仅忽视了理论上参议院必须采取行动的能力，甚至忽视了参议院的实际行动。同样，“休会”一词的既定含义在宪法中每次出现时都是相同的。赋予该术语相同的含义意味着总统可以在休会期间任命，但这是一项有限的权力。与明确确立的先例相反，法律顾问办公室在《宪法》不同部分使用“休会”一词时，其定义不一致。但我们不能这样做。唯一一致的观点是，它每次对休会的解释方式都是ds the power of the President to make recess appointments and in such a way as to leave open the question of whether that power is limited in any meaningful way. Former Federal Circuit Judge Michael McConnell, himself a former Justice Department lawyer who has defended Presidential power, found the arguments in the Office of Legal Counsel opinion to be so implausible--those are his words--that ``it is difficult to escape the conclusion that the Office of Legal Counsel is simply fashioning rules to reach the outcome that it wishes.'' Since the outcome that the Office of Legal Counsel wishes is to expand Presidential power contrary to the text of the Constitution, and also many decades of historical practice, it is quite fair to question the independence, the judgment, and the adherence to statements made during the confirmation process by the head of that office. The media again focused more on personalities than on substance, and they will say the Bush administration reached a similar conclusion, so how can Ms. Seitz be criticized. That is where the media is coming from. There are three points to be made that set the record straight for the newspaper. First, President Bush did not make recess appointments when the Senate was in pro forma session. Secondly, President Bush did not even claim he could make such recess appointments while declining to do so. Third, his Office of Legal Counsel did not issue any opinion that would be binding on future Justice Department advice. Unlike the public actions of the Senate-confirmed head of OLC, a lower level official in the previous administration, the Bush administration, apparently wrote a secret memorandum to the file on this subject. The existence of such a memorandum was not known until the Office of Legal Counsel's opinion referred to it and sought to rely on it. It is not possible to evaluate the reasoning of that memorandum because the Department of Justice has not agreed to release it, despite my request that they do release it. If the Office of Legal Counsel is to exercise the independent judgment that is necessary for it to properly perform its functions, it cannot rely on some sort of secret memo or memos from lower level officials. That approach creates incentives for the Office of Legal Counsel heads to avoid accountability. An incentive is created for the preparation of secret memoranda that make outlandish claims of Presidential power if they cannot be reviewed by anybody. No one knows of the memo. So its arguments do not face the transparency of public scrutiny. The President and Office of Legal Counsel take no responsibility for its conclusions. Then the Office of Legal Counsel later issues a public opinion on the subject. To bolster very weak arguments, it cites earlier memos. But it avoids transparency as well by keeping the memoranda secret, so no one can see that the opinion's weak arguments may be supported by only other weak arguments. It avoids accountability by suggesting that this question was already decided by an earlier Office of Legal Counsel memorandum. Instantly, the number of administrations that support expanded Presidential power goes from zero to two, neither one of which is said to be responsible for that expansion. That bootstrapping can never lead to a reasoned, objective analysis of Presidential power. It cannot produce the independent OLC that Ms. Seitz promised the Senate she would provide at her confirmation. The media has also made the strange argument that Ms. Seitz' opinion must be professional and her judgment and independence cannot be questioned because of her high professional reputation. Is that not a little bit backward? The legitimacy of the argument contained in a legal opinion is not established by the reputation of the person who wrote it. Reputations are not steady. They are established by the quality of the professional work, not the other way around. In the past, a prominent Democratic Senator called for a judge to resign because of his legal work as Office of Legal Counsel head. The Washington Post, in an earlier editorial, criticized the opinions of other Bush administration OLC lawyers as displaying ``the logic of criminal regimes'' and ``bringing shame to the American democracy.'' If the Post truly believes that criticizing Office of Legal Counsel lawyers is beyond the pale, they should retract their earlier opinions and condemn the far harsher rhetoric that was hurled against Bush OLC lawyers. While explaining what is wrong with the newspapers, I now go to explain why my criticisms were not just legitimate but they were absolutely necessary. Last Thursday, I laid out in great detail a long series of abuses of executive authority and usurpation of legislative authority by President Obama and his administration. In fact, he made his willingness to bypass Congress a campaign issue with slogans such as ``We can't wait for Congress,'' and those headlines and slogans were splashed all across the White House website. President Obama has made the decision to run for reelection not on his record, for obvious reasons, but against Congress. In doing so, he is daring Congress to defend its role as representatives of Americans from each of the 50 States in the face of his unilateral agenda. Some have suggested this is a clever political trap laid by President Obama; that if Congress resists the President's power grabs, it will validate his slogans and play into his electoral strategy. This may or may not be true. However, the stakes are greater than the next Presidential election, and the implications of the President's actions will be felt well beyond any short-term political gain. The Framers of the Constitution foresaw the temptation by one branch of government to try to usurp the powers of the other branches. In Federalist 51, James Madison explained how the Constitution was designed to prevent power grabs through an ingenious system of checks and balances. He wrote this long quote: But the great security against a gradual concentration of several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. Of course, this assumes a desire on the part of each branch to guard its constitutionally granted powers. If some Members of Congress are not willing to resist an encroachment because they place party loyalty above constitutional responsibilities or if members are reluctant to push back for fear of political consequences, then the system of checks and balances will not work as intended by our Constitution writers. All Members of Congress swore an oath to support and defend the Constitution. That is our first obligation. I want to be clear that this is not an argument about constitutional semantics; it is one of fundamental principle. As Madison explains in Federalist 51: The ``separate and distinct exercises of the different powers of government'' is ``essential to the preservation of liberty.'' This also goes beyond an argument about the ends to which President Obama has used the new powers he now claims. His agenda is controversial, to be sure, or he would not have had to bypass Congress. Still, even those who support this President's policies should not be so quick to look the other way. Once the walls separating the powers allotted to each branch of government are eroded, they are very difficult walls to rebuild. The most eloquent expression of the philosophy on which our Nation was founded is, of course, the Declaration of Independence. I quote the all familiar: We hold these truths to be self-evident, that all men are created equal, that they are [[Page S151]] endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . . . Based on these fundamental principles, the Constitution laid out a form of government designed to protect individual rights by resisting the concentration of power. This can be frustrating to those who would like a more activist government. Still, these features of our Constitution perform a very important role in preventing one faction of Americans from dominating another faction of Americans. I am sure President Obama is convinced his agenda is what is best for the country and that the ends justify the means in pursuing that agenda. But that is not the Machiavellian ideas that any of our Constitution writers had. Naturally, he doesn't see any danger in concentrating power in the Presidency because he believes he will use that power very wisely. Moreover, he has gone out of his way to identify himself with the school of thought that the constitutional separation of powers is an outdated barrier to change. Last month, President Obama gave a speech in Kansas in which he sought to link his agenda to Teddy Roosevelt's famous ``New Nationalism'' speech at the same place in 1910. The original speech marked the beginning of Roosevelt's break with many of his past policies and with the incumbent Republican President, William Howard Taft. Roosevelt then went on to challenge Taft in the 1912 election, heading up the Progressive Party ticket. You know that both Roosevelt and Taft lost. In that 1910 speech to which President Obama paid tribute, Roosevelt described his new nationalism as ``impatient of the impotence which springs from overdivision of governmental power.'' This philosophy seeks to fundamentally transform the United States from a nation founded on the principle that protecting the unalienable natural rights of each citizen is the paramount goal of government to one that empowers an enlightened elite to take whatever actions they deem necessary to correct perceived wrongs in society. In other words, throw the Constitution out the door. This may start out with very good intentions, but there is no guarantee that once our constitutional protections are gone, future leaders will always act in the most enlightened way. In fact, the single-minded pursuit of a better society at the expense of individual rights has led to some of history's worst tyrannies. Moreover, not only is the concentration of power in the executive branch contrary to the founding principles of our Nation, it is foreign to the realities of American civic life. With a country as large and as diverse as ours, no individual can claim to speak on behalf of all Americans. Our constitutional system, based on federalism, separation of powers, and checks and balances helps ensure that each American has the opportunity to live their life as they see fit. I return to the words of James Madison: It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of society against the injustice of the other part. The voices of all Americans deserve to be heard through the elected representatives of the people. That is what is at stake. Those of us who were elected to represent the people of our States should do just that or we deserve not to be here. I yield the floor. The PRESIDING OFFICER. The Senator from Ohio is recognized. Mr. BROWN of Ohio. Mr. President, I want to take 60 or 90 seconds to discuss the subject that the Senator from Iowa discussed; that is, the appointment of Richard Cordray to the Consumer Protection Bureau. I checked with the Senator's story earlier during this move through the Banking Committee on which the Presiding Officer sits. Never in history has anybody in one party blocked even a vote of a Presidential nominee who is admittedly qualified only because they don't like the agency. That would be a little like, as Senator Reed from Rhode Island said, refusing to confirm an appointee to run the FDA until the Congress weakens food safety laws. It runs counter to everything we believe. I wasn't insisting that my Senate colleagues all support Richard Cordray, former attorney general from Ohio, who is eminently qualified for this job. We were saying to just let it come to an up-or-down vote. Instead, the minority party filibustered, stopped that, and the President had no choice but to act because the agency simply could not do its job. Only 2 years ago, this agency was created, this consumer bureau, to have a consumer cop on the beat to keep Wall Street banks and payday lenders and everybody in between honest. It took 60 votes in the Senate, including the Presiding Officer and me, and 58 others, to say this agency should be created and the consumer bureau should be in effect. That is the history of that. ____________________