through is keeping us mild across the board but temperatures are going oslowly cool again as we get in the next few days. yeah more cold air on the way and while we're warm in the northeast we're still concerned about a little bit of freezing rain creating icing in parts of northern maine. >> and rebecca thank you. this is al jazeera america live from new york city, with a look at today's top stories. west virginia ask lifting water restrictions for communities affected by last week's chemical spill. investigators are looking at the potential long term impacts resulting from the spill. foreign dignitaries including vice president joe biden paid their final respects today to former israeli prime minister airial sharon. he was honored earlier today in jerusalem with a state ceremony. lawyers for alex rodriguez are heading to court to overturn

his season-long suspension. biojen cyst tony bosch has refuted his innocence. the pilots of a southwest airlines plane that landed at the wrong missouri airport have been grounded. their plane took off a little while ago bound for tulsa. the original plane was supposed to touchdown in branson but landed at a runway half a length necessary. inside story is next on al jazeera america. >> the plain language of the constitution seems pretty clear. it's the wrestling match between the president and a divided senate is a little muddy.

the supreme court is the referee on this "inside story." >> hello, i'm ray suarez. you can find it right there in the institution, which is the handbook for running the country, article 2, section 2, the president shall have power to fill vacancy that is accept during the breaking of the senate. what did those framers mean? at a time of horsepower transportation that the president could fill a job without waiting for everyone to get back to washington, or the president could not be held hostage by the senate's advise and consent role. it's an interesting clash of executive power, legislative mechanics, and the ups and downs between the president and the

congress. the supreme court has been asked to make a precedence-setting decision. in 2012 president obama named three people to the national labor relations board or nlrb while the senate was not working but instead was in per form ma session. the three seats had been vacant for a long time because the senate had not approved the nominations while in session. >> this was a clear attempt not to put into place officials that the senate couldn't confirm but in place officials that the senate wouldn't confirm. >> reporter: with the super majority in place senate republicans had blocked the previous nominees leaving the labor board unable to do business. but after the president filled the positions the nlrb acted on a court ruling from washington state that the noel canning company had violated a contract with its employees. they took

the case to the dc court of appeals stating that the nomin nominees were unconstitution an therefore the board had no room to react. the senate either agree with the administration that the president can make appointment at any break, or the senate could continue to block appointments, and literally presidential appointments should only fill vacancies at that time. >> what the president has done here when the senate is

convening sessions every three days. these appointments were particularly unprecedented. >> historically presidents were both parties have made recess appointments. sometimes to install officials who would otherwise have a difficult time in the senate confirmation process. the supreme court case of the national labor relations board has given a lengthy 90-minute oral argument. the court will hear from lawyers respecting from both sides and 45 senators concerned about overreach. how did the framers of the constitution except the recession provision to work when they wrote it? what does it mean for the senate to be present in the capitol and in session. for that and more we're joined by john, who covers the high court for cq roll call, bruce,

author of "constitutional peril." and jacinta singh. john, let me start with you. it sounds like the man who organizes cases had a rough day in the saddle. >> i would agree with that. they appeared today and tried to convince the court and convinc e president did was not a big deal. he was requested from justices on the left and the right who want to it question that assertion. one particular moment that stood out to me was elena kagan, who was once holding that same job was up to the session to decide when they are in session or not in session. that is not a good sign for the

obama administration. >> going back to the first days of the republic a common happenstance in washington. >> this is something that the general so solicitor tried. from making these appointments. so the senate is on the record of saying it is in session even if it is every three days and if it is not conducting business, that seems to me to persuade a majority of the justice that is the obama administration appointments in this case were not constitutional. >> jacinta singh, do you think when the framers wrote "in session," that they were in chambers, not conducting business but gaveling in and gaveling out. >> i don't think that's necessarily what they meant. but what is interesting about this case because there is not a lot of judicial precedent on the

question that winds up being the question that we ask. there is no question that the senate operates fundamentally differently from then where they now have a hundred members and then they had 26. they could travel much faster, there are reasons the way practice has evolved the way they have. but we ask and quoting dictionaries and what the process is like whatter and what these words meant in the 1700's and that was borne out in the briefs that were submitted. but if you read the text for the first time it's a more restrictive view than what practice has been for the past 100 years. >> it is remarkable that they've never been asked to rule on this in 225 years. >> i think that's testimony of the fact that politics

ordinarily sorts itself out here. that congress and the president have ways to work around issues of recess appointments. you can make acting appointments, special assistance one way or another. and i think it's also true the issue is exaggerated in terms of its importance. we have a leviathon government. i want to go back to the baseline understanding of the constitution which is ordinarily. it was understood that the

>> so it could bear on, we witnessed that with the nomination of john brennan to be director of the c.i.a. it brought out worrisome issues whether the president power to use predator drones if thought to be a threat to the national security. and holding up critical documents after years o, we'll justify this presidential power. the baseline the recess appointment power ought to be interpreted proudly because it goes against the baseline. it should be narrowly construed because the negatives that checks and balances bring. >> how the senate uses it's

power to call candidates onto the carpet, and uses it's leverage, and examples of leverage quite apart whether or not mr. cordrai should get his job. >> this case is very political at its fundamental base. this as justice kagan pointed out, she said the recess appointments clause has shifted from being about whether the senate is there and available to confirm the president's nominees to it being--it's being used to avoid the senate and go around the senate. president obama did that in this case. he knew he would get approval in this nominee and all sides this is a political case. >> has the confirmation process come to mean something, act in a

way that we can't imagine the framers really intended? >> yes, i think that's a good point. the way that this confirmation process works today, and you've heard the benefits of advice and consent. the administration overwhelmingly use it is. most of the people, the obama operations and every other operation, they have gone through the confirmation process and they have good reasons to use it in many cases. the nlrb was a particular target for obstructionalism because the entire agency was overly sympathetic. they were not giving business as fair hearing and conservatives in the senate took it upon themselves to block nominees consistently. this is an example of its true. appointments used to avoid the senate but that was a response to a very obstructionist

approach on behalf of the senate. >> that's a self-inflicted wound. remember the president's political party controls the senate, and then they changed the rules in regard to these nominations you can't use a filibuster to block a vote whatsoever. that's politics at work. and you talk about obstructionism. that's what checks and balances are about. now it may cause people frustration that all the moving parts ought to work together, but that's the theory of our constitution. >> in the federalists, alexander hamilton wrote approval process provided in excellent check upon the spirit of favoritism of the president. when i come back i want to talk about what this really means about presidential power, to have a case like this, and also to have the president's nominations held up in the way they have been. time for us to take a short beak. this is inside story.

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i'm ray suarez. we're talking about the president's ability to make nominations when the senate is at recess. in the nlrb and many other departments were of longstanding but unable to either get a hearing or unable to pass the relevant committee. the question is had the advice and consent power been used to make the nlrb non-functioning as an agency of government? >> i think that was the plan. there was, the nlrb, the supreme court previously held unless the agency has a quorum, three members, they're not able to junction, and they dip below that. they are not able to decide matters properly before them. and notwithstanding that the

senate was refusing to take nominees before them. this was a case of holding up nominees was very much by design, intended to slow or halt functioning of the agency. >> and it was defeated because ultimately the president did nominate and the senate confirmed the full roster of nlrb commissioners and they're moving on. if these particular rulings were invalley, the new board that is in place can just ratify what's already been done. this shows the futility of trying to use this method to obstruct the process that the president ordinarily uses. >> does the senate majority issues make this case a more abstract argument about the power of the executive rather than one that has every-day

applicability. >> i think it did, yes. i think before these nlrb nominees were confirmed, as bruce said, this case would have had more significance. but now we have a fuel roster of constitutionally appointed members, and now they can ratify the earlier nlrb decision even if the obama administration loses in this case. the senate rules change in november, and essentially there is no filibuster any more. the president doesn't need to resort to recess appointments any more. he won't have to require any republicans to support him. because of that this case at least for president obama is not a significant any more. >> if we're going to have a go good, abstract rigorous debate of what the senate can and can't do and what the president should and shouldn't do, the president shall have fill all vacancies that may happen during the

recess of the senate. now if you want to take a really fine-tooth comb to that phrase, it sounds like it's only vacancies that occur while the senate is not in session that the president can fill this way. correct. >> that's what the court of appeals below concluded even though broader than what was needed to decide the case. the idea is the president could have nominated someone to that position, because it was available to the recess, that occurred in the recess. the president has an opportunity to present it to the senate. he can't get it ratified, then the vacancy continues into the recess. >> yes, congress had a free-spirited debate about what the word "happened" means. it means to occur to begin. the position becomes vacant during the recess.

that's the only time a recess appointment is okay. the administration argued it could be a state of being, not becoming. so if the actual vacancy began before the recess and continued, that provides equal justification. if you think about the recess clause does it make sense to say on the day before the senate went into recess the position became vacant. you can't use it. now if it became vacant the day after session, then you can. there is a line. one day is on the right side and one day is on the wrong side. it's reasonable but not crazy to think thes. >> if you go back again to the baseline i think everyone agrees there is a preferable way that there is a nomination that the senate has hearings on and there is an up and down vote.

that's how the system works. if there are ambiguities, it should happen in favor of giving the senate to scrutinize credentials and let the people learn about that particular officer and the senate to obtain other redresses of grievances especially the secrecy that pervades modern practice. >> did they spend a lot of time on the constitution and what different phrases and words meant. >> they did spent a lot of time on it. it spent like a spelling class on what phrases and happened means. they're less inclined to go as far as the d.c. circuit did as they are to rule against the obama administration in a narrow way. they seemed a little less open to that approach. i think even if they were to take that approach, the obama

administration and future approaches could find a way around it. filling vacancies that happen during this brief period at the end of one session and the beginning of another session of congress you can talk to appoi appointies and say if you're thinking about stepping down, why don't you do it during this time period and then you see a lot of appointments during the christmas season and appointments happening then. >> we'll talk more about the separation of powers and what the intent of people who wrote the constitution, and what we're supposed to do about it now in 2014. stay with us.

>> welcome back to inside story. i'm ray suarez. we're talking about the supreme court recovering the power struggle between the obama administration and the senate over presidential nominees. still with us, john, who covers the high court procedural roll call, and to bruce and jacnta singh. looking back over the 225 years since the writing of the constitution, if you concede the government is a breathing creature of the constitution, does practice create precedence, even if there hasn't been judicial decisions in this kind of thing, does the fact that we've. going on and doing this over time create the kind of precedence? >> the answer is both yes and no. if we take the most comparable battle of constitutional power,

it enables congress to block executive action. it's existed some 60 years back to hoover, and invalidated hundreds of laws and encroaches on executive authority. on the other hand if you look at practice under taken from executive privilege we don't want to share information to congress. this happened in the nixon case, and the supreme court for the first time in 1974 addressed this question of executive privilege and really it doesn't protect you from a subpoena addressed to you from court. and it relied exclusively on george washington. it has adopted long-standing practice on the gloss of the actual words. >> i ask because presidents from both parties have been doing this for a long time. appointing people while senate

is in session. >> you can find these appointments going back to george washington. that's how far back we're talking, and consistently both parties for a very long time. now as i mentioned before, both parties overwhelmingly resort to advice and consent most of the time. these recess appointments have been exceptional but they've also always been used. with regard to a bigger question of whether practicecrac practics precedence, the supreme court will decide when it decides yes and when it decides no on these sorts of questions. but the almost near anonymity that it's know. if the text is with you but historical practice is against you, well practice wins and the court took a gasp to that. i think in this case the answer is going to be no. >> so john, what happens?

if as it sounds like the supreme court rules against the obama administration, what will change about the way government has been working up until now? >> i think you're going to see a completely new meaning of recess appointments clause. it's going to be narrowed substantially to the point that it's effectively not useable any more. where only in these narrow circumstances. really what matters more is how the senate will proceed and how the house will proceed. the consequences of elections will be bigger and the rules of the senate will be bigger. the one really discussion is whether whatever party is in power of the senate next january, whether they will continue to abide by the current rules by the filibuster or it will revert back. i don't think any party will go back. >> if it narrows after the supreme court rules will the senate have to go through this

pantomime of bringing it to order? >> probably so. one chamber can adjourn only by the permission of the other chamber. you may get used to sittin seein cpan one center sitting there at all hours day and night for the per form ma. >> now we have year round congress. there won't be a time when the president can't get a nominee voted on. >> thanks a lot. that brings us to the end of this edition of inside stor "in" thanks for being with us. in washington, i'm ray suarez.

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