Q:        What is the False Claims Act?

A:        The False Claims Act is an important tool for combating fraud against the U.S. government or, in effect, the taxpayers.  It's sometimes called Lincoln's Law because it was first passed in 1863, in response to unscrupulous contractors who sold the Union Army things like faulty rifles, decrepit horses, and ammunition boxes filled with nothing but sawdust.  When enacted, the law offered a reward that let private citizens sue on behalf of the government and receive a percentage of the recovery.  This provision is known as qui tam, an abbreviation of a Latin phrase that basically means "on behalf of the King as well as for himself."  In 1943, the qui tam provisions were curtailed by Congress based on the argument that they rewarded the unworthy and got in the way of other law enforcement efforts.  Forty years later, in the mid-1980s, there was growing concern about extensive fraud by defense contractors.  I was involved in exposing wasteful spending by the Defense Department at that time, and part of my response was working with Representative Howard Berman, of California, and others to reinvigorate the qui tam provisions of the False Claims Act.  In 1986, we won passage of a major update to the law, restoring and updating qui tam.  Our goal was to empower private citizens who had information about fraudulent activity by government contractors to bring wrongdoing forward and sue in the name of the government.  We knew these kinds of courageous whistleblowers were in positions to identify fraud that would otherwise go completely undetected by federal law enforcement.

Q:        Does qui tam work?

A:        This year marks the 25th anniversary of the Grassley-Berman update of the False Claims Act.  All together, since 1986, the qui tam provisions have recovered more than $30 billion that otherwise would be lost to fraud.  Experts believe the deterrent effect of the law has saved taxpayers many additional billions of dollars.  While qui tam actions during the late 1980s and early 1990s involved mostly defense contracts, in recent years, most qui tam actions have fought fraudulent Medicare billing and fraud against other federal health care programs.  In fact, the law has become the government's most effective tool for fighting health care fraud.  In 2011, the False Claims Act recovered $3 billion to the U.S. Treasury, and $2.8 billion of that total resulted from qui tam.  Most of the $2.8 billion in recoveries were in Medicare, Medicaid, TRICARE, the Federal Employees Health Benefits program, and the Veterans Administration health care programs.

Q:        Is there current legislation impacting this law?

A:        There are constant threats to the strength of the False Claims Act and its qui tam provisions.  These threats have arisen in Congress and the courts.  I've led efforts to defend the law and keep it from being weakened legislatively, but over time federal courts have diminished the strength of the law.  In 2009, I sought and won passage of the Fraud Enforcement and Recovery Act to restore the scope and applicability of the law where it had been limited by court decisions.  I will stay vigilant in working to protect this proven anti-fraud law from efforts to weaken or even gut it.  In addition, I regularly give strong support to individual whistleblowers outside and inside government.  Our system is better off when government and all those who spend taxpayer dollars are held accountable, and whistleblowers play a major role in making certain that happens.  They do so at great personal sacrifice, often losing their jobs and livelihoods and living in a state of limbo for as many as 10 years, sometimes more, while fraud cases work their way through the legal system.  Qui tam is structured to compensate, based on the fact that without the whistleblower information, it's likely that the fraud would have continued undetected and no taxpayer money at all would be recovered.  Separately, I've worked to encourage states to adopt state-level versions of the qui tam provisions of the False Claims Act with legislation establishing incentives for states to fight Medicaid fraud, as Medicaid is a program funding by both state and federal funds.  Looking ahead, the broad scope of government programs where the False Claims Act has helped recover taxpayer dollars is a testament to its flexibility and value.

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member of the Senate Judiciary Committee

The Erosion of Checks and Balances

Monday, January 30, 2011

One week ago today, I addressed the Senate on President Obama's decision to bypass the Senate and the Constitution by making four "recess" appointments at a time when the President's recess appointment power did not apply.  I explained in detail why the legal memo released by the Obama Administration attempting to justify President Obama's actions did not hold legal water.  Last Thursday, I laid out the case that this is not an isolated incident or a technical legal squabble.  Rather, the President's recent actions are part of a pattern of disregard for the constitutional system of checks and balances.  Today I would like to address why such criticisms are justified and why they are necessary.

First, is it legitimate for a U.S. Senator to criticize a legal opinion issued by the Office of Legal Counsel and the Senate confirmed head of that office?  I have no doubt that senators may criticize such opinions and, when the facts warrant, ask whether that office and its head are exercising the independence that is required for the Constitution to be upheld.  Some in the media apparently disagree.  They say that it is wrong for a senator to ever criticize a Senate confirmed official's independence and judgment.  They say that all a senator can do is criticize the official's substantive arguments.  Nonsense.  When the media makes these claims, it merely  seeks to divert attention from the weakness of the opinion's actual conclusions and reasoning.

In my statement last week, I laid out my disagreements with the content of the Office of Legal Counsel opinion.  Of course, senators and administration officials can reach different conclusions on the law.  Each can have a reasonable point of view.  But that is not the case here.

If the Office of Legal Counsel is to be the "constitutional conscience of the administration" that some in the media characterize it to be, it must exercise a certain level of independence.  As I mentioned in my statement, when a President who takes an expansive view of his power asks Justice Department officials who  owe their job to him whether he has the constitutional or legal authority to take action, there is always the chance that pressure will overtake their responsibilities to provide their best legal judgment.  That is why at Ms. Seitz confirmation hearing and in follow up communications, we took such painstaking effort to give her the opportunity to state on the record her commitment to providing independent legal advice.  To make sure that she would place loyalty to the law and the Constitution above her loyalty to the President.

Ms. Seitz promised to act independently.  She promised not to stand idly by if she thought the Constitution was being violated.

The only way to tell whether the office has given independent advice - the only way to tell whether pressure has been resisted - is to review the arguments and reasoning that OLC provides.  The media cannot address whether criticism of the head of that office is independent and has used good judgment without such a review.  It is not enough that the media might agree with her conclusion.

In this case, the analysis in the Office of Legal Counsel opinion was so poor as to raise legitimate questions concerning judgment and independence.  The Office of Legal Counsel is supposed to give the President objective legal advice before he acts.  It is not supposed to provide a weakly thought out rationalization for a presidential decision to act that has already been made.  Here, the arguments in the opinion are so weak that a fair-minded person can question the independence and judgment of the opinion's author.

For instance, the opinion is internally inconsistent.  It correctly recognizes that a president's ability to make recess appointments turns on the capacity of the Senate to conduct business.  But in determining whether the pro forma sessions constitute a recess, the opinion does not consider at all the capacity of the Senate to conduct business and on what it could do.  Rather, it relies on what individual senators said.  And it ignores not only what theoretically the capacity the Senate had to act, but even its actual actions.

Similarly, the established meaning of "recess" is the same each time it appears in the Constitution.  Giving the term the same meaning means that the President can make recess appointments, but that this is a limited power.  The Office of Legal Counsel opinion, contrary to clearly established precedent, inconsistently defines the term "recess" differently when it is used in different parts of the Constitution.  The only thing consistent in the opinion is that it interprets "recess" each time in a way that expands the power of the President to make recess appointments, and in such a way as to leave open the question 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" that "[i]t is difficult to escape the conclusion that OLC is simply fashioning rules to reach the outcome it wishes."  Since the outcome 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, judgment, and adherence to statements made during the confirmation process by the head of that office.

The media, again focused more on personalities than on substance, will say that the Bush Administration reached a similar conclusion, so how could Ms. Seitz be criticized?  First, President Bush did not make recess appointments when the Senate was in pro forma session.  Second, President Bush did not even claim that 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 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 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 it do so.

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 secret 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.  No one knows of the memo, so its arguments do not face the transparency of public scrutiny.  The President and the 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 the earlier memo.  It avoids transparency as well, by keeping the memorandum secret, so no one can see that the opinion's weak arguments may be supported by only other weak arguments.  And it avoids accountability by suggesting that this question was already decided, by an earlier Office of Legal Counsel.  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 Office of Legal Counsel that Ms. Seitz promised the Senate that she would provide.

The media has also made the strange argument that Ms. Seitz's opinion must be professional and her judgment and independence cannot be questioned because of her high professional reputation.  This is backward.  The legitimacy of the arguments contained in a legal opinion is not established by the reputation of the person who wrote them.  Reputations are not static.   They are established by the quality of the professional work, not the other way around.

In the past, a Democratic prominent 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 American democracy."  If the Post truly believes that criticizing Office of Legal Counsel lawyers beyond the pale, they should retract their earlier opinion and condemn the far harsher rhetoric that was hurled against Bush Office of Legal Counsel lawyers.

Now I would like to explain why my criticisms were not just legitimate, but necessary.  Last Thursday, I laid out in great detail a long series of abuses of executive authority, and usurpations of legislative authority, by President Obama and his Administration.  In fact, he's made his willingness to bypass Congress a campaign issue with slogans like "We can't wait for Congress" splashed across the White House website.  President Obama has made the decision to run for re-election not on his record, for obvious reasons, but against Congress.  In doing so, he's daring Congress to defend its role as the representative of Americans from each of the 50 states in the face of his unilateral agenda.

Some have suggested that 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.  That 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 U.S. Constitution foresaw the temptation by one branch of government to try to usurp the powers of others.  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-

"But the great security against a gradual concentration of the 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 their 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.  All members of Congress swore an oath to support and defend the Constitution of the United States.  That is our first obligation.

I would like to be clear that this is not an argument about constitutional semantics, but one of fundamental principle.  As Madison explains in Federalist 51, the "separate and distinct exercise 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 has claimed.  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 will not easily be rebuilt.

The most eloquent expression of the philosophy on which our nation was founded is in the Declaration of Independence.  "We hold these truths to be self-evident, that all men are created equal, that they are 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 an important role in preventing one faction of Americans from dominating another.

I am sure that President Obama is convinced that his agenda is what's best for the country and that the ends justify the means in pursing that agenda.  Naturally, he doesn't see any danger in concentrating power in the Presidency, because he believes he will use that power 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 on the Progressive Party ticket.

In the 1910 speech, which President Obama paid tribute to, Roosevelt described his New Nationalism as "...impatient of the impotence which springs from overdivision of governmental powers."  He explained that his philosophy, "...regards the executive power as the steward of the public welfare."  The progressive view of the separation of powers was described at length in Woodrow Wilson's Constitutional Government in which he writes, "The makers of the Constitution constructed the federal government upon a theory of checks and balances which was meant to limit the operation of each part and allow to no single part of organ of it a dominating force; but no government can be successfully conducted upon so mechanical a theory.  Leadership and control must be lodged somewhere..."  Of course, he determines that President is where this "leadership and control" should be lodged.

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.  This may start out with 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 a 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 diverse as ours, no one 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 the society against the injustice of the other part."  The voices of all Americans deserve to be heard through their elected representatives in Congress.  That is what is at stake here.  Those of us who were elected to represent the people of our state should do just that or we don't deserve to be here.

-30-

During his weekly video address, Senator Chuck Grassley discusses the need for job-generating tax policy, spending reductions, regulatory relief, trade agreements, and energy development, as well as respect for the checks and balances that have helped to define America's system of government for 235 years.

Click here for audio.

Here is the text of the address:

I held meeting with Iowans in 36 counties this month.  People at the grass roots are looking for leadership.  13 million unemployed workers need to know that Washington can take action to help get people back to work and move the country in the right direction.

Workers, employers and entrepreneurs need an environment where the economy can improve and jobs can be created.

Taxes, especially tax certainty, are a major factor.  One of the biggest tax increases in history will happen at the end of this year if Congress and the President don't stop it.  Small businesses, where most new jobs are created, would be hit hard

Government spending needs to be reduced.  The problem isn't that taxes are too low, it's that Washington spends too much.  Massive federal debt gets in the way of economic growth.  So does the heavy hand of government regulation, and it must be lifted.

American workers also need new export markets for the goods and services they manufacture.  They need an energetic and enthusiastic effort to establish new international trade relationships for the United States.

The economy benefits from affordable energy, so domestic production has got to be a priority and a reality.  Even so, President Obama is denying the Keystone XL pipeline project.  This infrastructure project would create as many as 20,000 jobs.  The President's position works against creating jobs and getting people back to work.

Since 2009, President Obama's big spending stimulus and government intervention has failed in terms of job creation, economic growth and fiscal responsibility. We need a new direction.

On top of that, President Obama seems determined to test and even exceed the powers of his office.  America has a system of checks and balances that's generally worked for more than two centuries.  The President's interest in putting the executive branch above the other branches of government is unconstitutional and counter-productive.  It's something Americans rejected 235 years ago.

Today, finding common ground with the elected representatives of Congress would be more productive than trying to govern by edict from the Oval Office.

Prepared Floor Statement of Senator Chuck Grassley

Ranking Member, Senate Committee on the Judiciary

On The Nomination of John Gerrard and

President Obama's Four Recent "Recess" Appointments

Monday, January 23, 2012

Mr. President,

Just over a month ago, on December 17, the Senate entered into a unanimous consent agreement to consider the nomination of John M. Gerrard, of Nebraska, to be United States District Judge for the District of Nebraska.

We are proceeding with this nomination, which I will support, despite the President's actions on his so-called recess appointments.  I note that during the last session we acted responsibly in considering the President's nominees.  Even the Majority Leader acknowledged this.  He stated, "We have done a good job on nominations the last couple of months. Actually, in the last 3 months, we have accomplished quite a bit."

I will have more to say about the recess appointments.

But with regard to this nomination I hope my colleagues understand that even though we are proceeding under regular order today, it is only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those appointments.  I am not going to hold this nominee accountable for the outrageous actions of the President.

However, as this is a matter of concern to my Republican colleagues, as it should be for all Senators, we must consider how we will respond to the President and restore a constitutional balance.

As I stated, since the adoption of the unanimous consent agreement governing the nomination before us, President Obama has upset the nominations process.   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 and consent 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, the President made four appointments.  They were purportedly based on the Recess Appointments Clause.  He took this action even though the Senate was not in recess.  This action is of the utmost seriousness to all Americans.

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."

Between the end of December and today, the Senate has been holding sessions every three days.  It did so precisely to prevent the President from making recess appointments.  It followed the same procedure as it had during the term of President Bush.  President Bush declined to make recess appointments during these periods.

But President Obama chose to attempt to make recess appointments despite the existence of these Senate sessions.

In addition to being unconstitutional, these so-called recess appointments break a longstanding tradition.  They represent an attempted presidential power grab against this body.

A President has not attempted to make a recess appointment when Congress has not been in recess for more than three days in many decades.  In fact, for decades, the Senate has been in recess at least 10 days before the President has invoked this power.

Other parts of the Constitution beyond Article II, Section 2 show that these purported appointments are invalid.  Article I, Section 5 provides, "Each House may determine the Rules of its Proceedings...."

In December and January, we provided that we would be in session every three days.  The Senate was open and provided the opportunity to conduct business.

That business included passing legislation and confirming nominations.  In fact, the Senate did pass legislation, which the President signed.  According to the Constitution - each House - not the President determines whether that House is in session.  The Senate said we were in session.  The President recognized that fact by signing legislation passed during the session.

Article I, Section 5 also states, "Neither House, shall, during the session of Congress, without the consent of the other, adjourn for more than three days...."

The other body did not consent to our recess for more than three days.  No concurrent resolution authorizing an adjournment was passed by both chambers.  Under the Constitution, we could not recess for more than three days.  We did not do so.  The President's erroneous belief that he can determine whether the Senate was in session would place us in the position of acting unconstitutionally.

If he is right, we recessed for more than three days without the consent of the other body.  By claiming we were in recess, the President effectively dares us to say that we failed to comply with our oath to adhere to the Constitution.  Yet, it is the President who made appointments without the advice and consent of the Senate while the Senate was in session.  It is the President who has violated the Constitution.

Of course, the President does not admit that he violated the Constitution.  He has obtained a legal opinion from the Office of Legal Counsel at his own Department of Justice.

That opinion reached the incredible conclusion that the President could make these appointments, notwithstanding our December and January sessions.

That opinion is entirely unconvincing.  For instance, to reach its conclusion that the Senate was not available as a practical matter to give advice and consent, it relies on such unpersuasive material as statements from individual senators.

The text of the Constitution is clear.

It allows no room for the department to interpret it in any so-called "practical" way that departs from its terms.

The Justice Department also misapplied a Judiciary Committee report from 1905 on the subject of recess appointments.  That report said that a Senate "recess" occurs when "the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments."  Obviously, that report does not support the Department of Justice.  During these days, the Senate was sitting in session.  It could discharge executive functions.  The chamber was not empty.  It could receive communications.  It could participate as a body in making appointments.  In fact, it sat in regular session and passed legislation.

There is nothing in the 1905 report that justifies the President substituting his judgment for the Senate's regarding whether the Senate is in session.  In any event, a Senate Judiciary Committee report from 1905 does not govern the United States Senate in 2012.  The Senate as constituted today decides its Rules and Proceedings.

The Department is on shaky legal ground when it claims that "whether the House has consented to the Senate's adjournment of more than three days does not determine the Senate's practical availability during a period of pro forma sessions and thus does not determine the existence of a 'Recess' under the Recess Appointments Clause."  There is no basis - none -- for treating the same pro forma sessions differently for the purposes of the two clauses.  The department simply cannot have it both ways.

And the Justice Department's opinion contains other equally preposterous arguments.  For instance, the opinion claims that the Administration's prior statements to the Supreme Court -- through former Solicitor General Elena Kagan -- that recess appointments can be made only if the Senate is in recess for more than three days are somehow distinguishable from its current opinion.  Or that the pocket veto cases do not apply.

Or even if they did, the "fundamental rights" of individuals that the courts described in those cases include the right of the President to make recess appointments.

There was a time when Presidents believed that they could take action only when the law gave them the power to do so.  They obtained advice from the Justice Department on the question whether there was legal authority to justify the action they wished to take.  But Theodore Roosevelt started to change the way Presidents viewed power.

He believed that the President could do anything so long as the Constitution did not explicitly preclude him from acting.  When he used that theory to create wildlife refuges against a rapidly expanding industrial base, there was no objection.  But a dangerous precedent was set.  When he claimed that he could make recess appointments during a "constructive recess" of the Senate, the Senate rejected this view in that 1905 report.

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way.

At that point, a President is no longer a constitutional figure with limited powers as the founders intended.  Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace.

This OLC opinion reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power.  Formerly, the Justice Department gave legal advice to the President based on an objective reading of texts and judicial opinions.  It was not an offshoot of the White House Counsel's office.  This more objective view of the limits of presidential power also provided a level of protection for individual liberty, the principle at the core of our constitutional separation of powers.  The President might refuse to accept the advice.

He might choose to fire the officer who gave him advice with which he disagreed.  He could seek to appoint a new officer who would provide the advice he preferred.  But he risked paying a political price for doing so.   An official who thought that loyalty to the Constitution exceeded his loyalty to the President could refuse to comply, at great personal risk.  That is what Elliot Richardson did during the Saturday Night Massacre of the Watergate era.

During the Reagan Administration, OLC issued opinions that concluded that the President lacked the power to undertake certain acts to implement some of his preferred policies.   The President did not undertake those unilateral actions.

President Obama originally submitted a nominee for OLC that was wholly objectionable.  The Senate had good reason to believe that she would not interpret the law without regard to ideology.  We refused to confirm her.

The President ultimately withdrew her nomination and nominated instead Virginia Seitz.   We asked important questions at her confirmation hearing and through questions for the record.  Ms. Seitz responded that OLC should adhere to its prior decisions in accordance with the doctrine of stare decisis.  And she stated that if the Administration contemplated taking action that she believed was unconstitutional, she would not stand idly by.  Relying on those assurances, the Senate confirmed Ms. Seitz.

Mr. President, Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of the Recess Appointments Clause.  And I suppose it is literally true that Ms. Seitz did not stand idly by when the Administration took unconstitutional action:  rather, she actively became a lackey for the Administration.  She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law.

That opinion, and her total deviation from the statements she made during her confirmation process, show extreme disrespect for the institution of the Senate and the constitutional separation of powers.  I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination.  However, after reading this misguided and dangerous legal opinion, I'm sorry the Senate confirmed her.  It's likely to be the last confirmation she ever experiences.

Mr. President, the Constitution outlines various powers that are divided among the different branches of our federal government.  Some of these powers are vested in only one branch, such as granting pardons or conducting impeachment proceedings.  Other powers are shared, such as passing and signing or vetoing bills.  The appointment power is a shared power between the President and the Congress.  When one party turns a shared power into a unilateral power, the fabric of the Constitution is itself violated.  And a response is called for.

In Federalist 51, Madison wrote that the separation of powers is more than a philosophical construct.  He wrote that the "separate and distinct exercise of the different powers of government" is "essential to the preservation of liberty."  The Framers of the Constitution wrote a document that originally contained no Bill of Rights.  They believed that liberty would best be protected by preventing government from harming liberty in the first place.  That was the reason for the separation of powers.

And they designed a working separation of powers through checks and balances to ensure a limited government that protected individual rights.  Madison wrote, "Ambition must be made to counteract ambition.  The interest of the man must be connected with the constitutional rights of the place."

That is what the Framers intended in a case such as this.  When the President unconstitutionally usurped the power of the Senate, the Senate's ambition would check the President's.  In this way, the Constitution is preserved.  The power of the government is limited. And the liberties of the people are protected.

But the Framers did not anticipate the modern Presidency.  It took Justice Jackson's famous concurrence in the Youngstown case to address presidential powers in today's world.    When the Judiciary Committee held its confirmation hearings on President Bush's Supreme Court nominations, my friends on the other side of the aisle posed many questions about the Jackson concurrence.  That opinion sheds light on these so-called recess appointments.

For instance, President Obama argued in a nationally televised rally that his actions were justified because "[e]very day that Richard [Cordray] waited to be confirmed . . . was another day when millions of Americans were left unprotected. . . . And I refuse to take 'no' for an answer."

Justice Jackson anticipated these hyperbolic statements.  He wrote: "The tendency is strong to emphasize the transient results upon policies....and lose sight of enduring consequences upon the balanced power structure of our Republic."

President Obama has definitely let transient policy goals overtake the Constitution.  His argument is that the end justifies the means.

His argument is that he can say no to the Constitution.  Or, in essence, that the Constitution does not apply to him.  But the Constitution demands that the means justify the ends, and that adherence to established procedure is the best protection for liberty. A monarch or a king could say "no" to the Constitution.  But under our Constitution, the President may not.

It is the Constitution, and not the President, that refuses to take 'no' for an answer.

Justice Jackson was also aware that the modern President's actions "overshadow any others [and] that, almost alone, he fills the public eye and ear."  By virtue of his influence on public opinion, he wrote, the President "exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness."

Some people believe that President Obama challenged the Senate for partisan purposes.  But Justice Jackson understood the true partisan dynamic that is now playing out.  He recognized that the President's powers are political as well as legal.  Many presidential powers derive from his position as head of a political party.  Jackson wrote,

"Party loyalties and interests sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution."  Finally, he concluded, "[O]nly Congress itself can prevent power from slipping through its fingers."

Mr. President, outside these walls, in the reception room, are portraits of great senators of the past.  The original portraits were selected by a committee that was headed by then Senator John F. Kennedy.  They included such figures as Webster, Clay, Calhoun, LaFollette, and Taft.  Yes, these senators were partisans.  But they were selected because of the role they played in maintaining the unique institution that is the Senate in our constitutional system.  In particular, they protected the Senate and the country from the excessive claims of presidential power that were made by the chief executives of their time.  Where are such members today?

Where is a member of the President's party today who is like a more recent Senate institutionalist, Robert C. Byrd?   He defended the powers of the Senate when Presidents overreached, even Presidents of his own party.  Where are the members who recognized that our sessions every three days rightly prevented President Bush from making recess appointments but who stand idly by as President Obama makes recess appointments without a recess?

I remind my colleagues of my experiences as chairman or ranking member of the Finance Committee.  I refused to process nominees to positions that passed through that committee to whom President Bush gave recess appointments.  That is how I used the authority that I had to protect the rights of the Senate.

Mr. President, I do not believe that we should let the powers vested in the elected representatives of the American people slip through our fingers because we place partisan interests above the Constitution.  I have shown how the Framers understood that supposedly expedient departures from the Constitution risked individual liberty.  The constitutional text in this situation is clear.  It must be upheld.  We must take appropriate action to see that it is done.

Nor should we wait for the courts.

Although the NLRB appointments are already the subject of litigation, we should take action ourselves rather than rely on others. The stakes are too high.  On the other hand, even the OLC opinion recognizes, as it must, the litigation risk to the President.

For more than 200 years, Presidents have made very expansive claims of power under the Recess Appointments Clause.  The President and the Senate have worked out differences to form a working government.

Now, the Obama Administration seeks to upend these precedents and that working relationship.  It may well find, as did the Bush Administration, that when overbroad claims of presidential power find their way to court, that not only does the President lose, but that expansive arguments of presidential power that had long been a part of the public discourse can no longer be made.

Although I believe that this ironic result will ultimately occur here as well, the Senate must defend its constitutional role on its own, as intended by the framers of the Constitution that we all swore an oath to uphold.

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