Raleigh, N.C. — After a pause of several months, Gov. Roy Cooper's challenge to Senate confirmation of his cabinet resurfaced Wednesday at the state Court of Appeals.
Cooper's attorney, Eric David, told the three-judge panel that the 2016 law requiring confirmation of the governor's cabinet secretaries is unconstitutional. He argued the requirement violates the separation of powers and infringes on Cooper's ability to carry out his executive duty.
But attorneys for Senate President Pro Tem Phil Berger and House Speaker Tim Moore, both Republican, argued for a different reading of the state constitution, saying it clearly allows the Senate to exercise its right to "advise and consent" over the governor's nominees.
Cooper first challenged the process in January, arguing that the "advise and consent" provision applies only to the appointment of "constitutional officers," such as the secretary of state and the treasurer. Cabinet secretaries are statutory officers – that is, their positions were created by statute.
A panel of three Superior Court judges ruled against him in March, however.
Because the constitution explicitly gives lawmakers the authority to confirm some appointments but not statutory appointments, David told the appeals court judges on Wednesday, the court must interpret the constitution as denying lawmakers the latter authority.
"The legislature gets to build the ship," David said. "It doesn’t get to tell the captain how to steer it."
Judges John Tyson and Rick Elmore pointed out on several occasions that none of Cooper's nominees had been rejected and noted that the provision doesn't tell the governor whom to appoint or how.
"How is it so egregious? How does that negatively affect separation of powers?" asked Elmore.
"[The governor] can only put forward people he knows would be approved by the Senate," David responded. "Knowing that you have to run the gauntlet of Senate confirmation affects your choices. It limits your discretion."
David added that the way the law is written, lawmakers don't have a timeframe in which they're required to take up a confirmation vote, and if they adjourn for more than 30 days without voting on a nominee, the nominee is considered rejected.
That means, he said, lawmakers could keep a cabinet secretary on hold for months, "Hanging the Sword of Damocles over their head until they do something [lawmakers] don't like. Then they can remove them by not confirming them."
"There’s no question that these are political footballs," he added.
Attorneys for Berger and Moore argued for a permissive interpretation of the constitution.
"All power in government which is not expressly given to either the judicial or the executive branch remains with the people of North Carolina, and that power is to be exercised through their elected representatives in the General Assembly," said attorney Noah Huffstetler.
"You don’t look to [the constitution] to see where 'advice and consent' is allowed. You look to it to see if it’s prohibited anywhere," said attorney Martin Warf.
Warf also argued that the constitution does not specifically give the governor the power to appoint any statutory officer. That authority, he said, comes from state law. He noted that a constitutional amendment commission in 1968 recommended a proposal to add that power to the constitution, but lawmakers chose not to put the amendment before the voters.
Huffstetler accused Cooper of seeking to avoid Senate confirmation in order to choose administration leaders who would "subvert" and "undermine" the intent of the General Assembly. He also reiterated that all of Cooper's current appointees had been confirmed.
"This speculation that in the future there might be an impasse is simply not sufficient to invalidate the law," Huffstetler said.
There's no word yet when the appeals panel will rule, but any decision is all but certain to be appealed to the state Supreme Court.
"Did you all consider just taking this across the street?" Elmore asked the attorneys, referring to the high court.