Explained: Why the confirmation hearings scheme for Cooper’s cabinet is unconstitutional

As was detailed in Tuesday’s edition of the Weekly Briefing, there are a number of compelling and obvious practical reasons why it’s a lousy idea for the North Carolina Senate to presume to conduct confirmation hearings for Gov. Cooper’s department heads. Add to this the simple statutory argument that the law the General Assembly passed on the subject doesn’t even contemplate such hearings taking place until the Governor sends over his appointees’ names (something that even the law doesn’t require until May 15 and that Cooper has not yet done) and the recent effort Senators made to hold such hearings is rendered all the more ridiculous.

Unfortunately, there’s also a powerful constitutional argument against the idea that seems to be escaping a lot of folks — especially those in the right-wing echo chamber.

Here therefore, for those who may have not yet gotten the chance to read Governor Cooper’s brief in support of his motion for a Temporary Restraining Order (or the order itself that the three-judge panel issued) is a bare bones summary:

Legislators argue that the authority to hold these hearings — something not exercised in the past — derives from Article III, Section 5(8) of the North Carolina Constitution (the so-called Appointments Clause). That section reads as follows:

“Appointments. The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”

What the proponents of the confirmation hearings fail to note, however, is that the state Supreme Court ruled just last year on what that section actually means in the case of McCrory v. Berger. As the Cooper brief explains:

“While acknowledging that the language of that clause had changed over the past 150 years, the Court ‘conclude[d] that this clause gives the Governor the exclusive authority to appoint constitutional officers whose appointments are not otherwise provided for by the constitution….’
The Governor’s appointed principal department heads are not constitutional officers. The eleven principal administrative departments that they head are created by statute, not the North Carolina Constitution….
Consequently, because they are statutory officers, the North Carolina Constitution does not allow the North Carolina Senate to exercise the power of advice and consent over the Governor’s appointed principal department heads.
Without constitutional authority, the Advice and Consent Amendment violates the separation of powers by assigning core executive functions to a portion of the legislative branch, thus encroaching upon the Governor’s constitutional authority to control the executive branch of state government and to carry out his constitutional duty to ‘take care that the laws be faithfully
This may seem like a narrow point, but it’s vitally important. As the brief goes on to explain:
“The Advice and Consent Amendment purports to insinuate the legislative branch into an activity which is at the core of the executive’s power and authority. By its terms, the Advice and Consent Amendment would allow the Senate to veto the Governor’s choices of the individuals to run the principal departments of state government.”

In other words, such a scheme would represent an enormous shift in the state’s constitutional balance of power. Defenders of the idea allege that the hearings would be minimally intrusive and only seek answers to a handful of basic questions designed to test the nominees’ honesty and competence, but of course, such determinations are all in the eye of the beholder. As a legal matter, senators would be free to ask whatever they wanted and vote against a nominee for any reason at all. Indeed, they would be free to tell the Governor that they would not approve any nominee other than, say, a Republican or someone one who fully supports conservative views on abortion or Medicaid expansion or climate change.

Surely, the framers of the state constitution did not contemplate that it would be possible to effect such a massive shift in how North Carolina government runs in just a few hours during a rump special session of the General Assembly. Let’s hope the judges charged with reviewing this matter continue to see things the Governor’s way and that, at some point soon, legislative leaders see the folly of their latest power grab.

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