Capitol Words a project of the Sunlight Foundation

Sen. Mike Lee

Mr. President, on January 4, 2012, President Obama bypassed the Senate's constitutional right to advise and consent to nominees and, instead, unilaterally made appointments to the Consumer Financial Protection Bureau and to the National Labor Relations Board. He purported to do so under the Constitution's recess appointments clause, even though at the time of the appointments the Senate was holding pro forma sessions roughly every 72 hours.

If allowed to stand, President Obama's unprecedented and unconstitutional recess appointments could result in Presidents of both parties routinely circumventing the Senate's advice-and-consent function and thus depriving the people and the people's representatives of an essential check on the executive branch.

President Obama's actions also violate the Constitution's fundamental system of separation of powers. He has asserted the unilateral power to override Congress's own determination of when it is in session and when it is in recess. At an absolute minimum, the Senate's institutional prerogatives demand that we be allowed to make our own rules. Yet President Obama's actions would deprive our body of even that basic right.

In the past, I have given pretty broad deference to the President's judicial nominees. Both in the Judiciary Committee and on the floor of the Senate, I have voted in favor of the vast majority of President Obama's nominees, including many with whom I have fundamental disagreements on various points.

But I can do so no more. The Founders expected that each branch of the Federal Government would exercise the necessary constitutional means to resist any encroachments by the other branches. Among those constitutional means is the Senate's advice-and-consent function, which I exercised today by voting against a nominee who otherwise might have received my support. Thirty-three other Senators did exactly the same.

The President cannot expect the Senate's full cooperation at the same time he does violence to this body's constitutional prerogatives. The threshold for confirming President Obama's nominees must change accordingly. Simply put, there is a new standard for confirmations as a result of the President's own actions. I find this unfortunate but ultimately necessary.

Both today and in the coming days, I will join with other Senators to act as a check and a balance on the President's unconstitutional conduct by voting against some nominees. I expect that many of my Republican colleagues, and in time some of our Democratic counterparts, will rise in defense of the Constitution and vote against President Obama's nominees until such time as he takes actions to restore the Senate's full constitutional right to advise and consent to his nominations.