i'm del walters in new york. check us out 24 hours aday just by going to aljazeera.com. >> 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 jacin ta 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 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. >> journalist glenn greenwald joins "the stream" >> the us government uses terrorism as it's excuse to do almost everything... they're collecting emails and telephone calls every single day >> glenn greenwald on "the stream" on al jazeera america al jazeera america gives you the total news experience anytime, anywhere. more on every screen. digital, mobile, social. visit aljazeera.com.

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ability to make appointments when the senate is in recess. the case argued today before the supreme court involved appointments the president made to the national labor relations board when the senate was in pro forma session. some of these nominees were of long-standing, but unable to either get a hearing or unable to pass the relevant committee. the question is, have the advise and consent power been used to make the nlrb non-functioning as an agency of government did you think? >> i think that that was the plan? the nlrb, the supreme court previously held unless the agency has a quorum, they were not able to function, and they dipped below that, so they were not able to decide matters

before them, and knot it with standing that the senate was refusing to take a case forward, so this was very much by design, intended to slow or halt the functioning of the agency. >> and i think it was defeated because ultimately the president did nominate, and the senate did confirm the roster, and if the supreme court says these particular rulings with two only members are invalid, though new board is already in place, and can just ratify what has already been done, so i think it shows the futility of trying to obstruct this process. >> so john, i guess the important question to ask is whether the senate's majority's decision about changing the rules for confirmation that happened late last year made this case in effect a more abstract argument about the power of the executive rather than one that has every day applicability? >> i think it did, yeah.

and before the senate rules changed in november and even before these nlrb members were confirmed, this case would have had a lot more significance, but now we have a full roster and as he mentioned they can ratify this earlier nlrb's decision even if the obama administration loses in this case, but the senate rules change in november, and there essentially is no filibuster anymore, and the president can get his nominees confirmed on a simple up or down vote, and this case is not as significant at least for president obama anymore. >> we're going to have a good rigorous debate about what the senate can and can't do, and what the president should and should don't. the president shall have power to fill up all vacancies that

may happen during the recess of the senate. 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. and the idea is that the president could have nominated somebody to that position because it didn't -- because it was already available before the recess. that wasn't a vacancy that didn't occur during the recess. and if you have a situation have a vacancy occurred not in the recess, the president can't get it ratified, then the vacancy continues in the recess, that's contrary to the constitution. >> the challengers argue that happen means to occur to begin, so the positionment becomes vacant during a recess.

the administration argued that happening with also be a state of being, and not just a state of becoming, so if the actual vacancy began before the recess and continued into the recess, then that would provide the justification. and if you think about it, does it really make sense to say on the day before the senate went into recess, a position became vacant? on the day after they went into recess it became vacant and now you can. so one could ultimately come out and i think the court will come out and say yeah, that is what we're saying, and that's totally reasonable, but it's also not crazy to think the opposite. >> but go back again to the baseline, i think everyone agrees the preferable way is a nomination that the senate has

hearings on and there's an up ardown vote. and the recess is the exception, and the president ought to act in an ambiguous manner, and give the american people an opportunity to learn that candidate. >> briefly, john did they spend a lot of time on the language of the constitution? >> they did. it felt like a dictionary class at time over what the word recess means and happen means. on the happen question i think they are less inclined to go as far as the dc circuit did. so they seemed a little bit less open to that approach. but i also think that even if they were to take that approach, the obama administration, and

future presidents could find a way around it, so even if you are only talking about filling vacancies that happen during this very brief period between sessions, you can talk to appointees and say if you are thinking about stepping down, why don't you do it during this time period. >> i take a brood view of the word, and this show is a happening. [ laughter ] >> we're going to take a break, and when we come back we'll talk more about the separation of powers, what the intent of the people who wrote the constitution was, and what we're supposed to do with it now in 2014. innovation changes our lives. opening doors ... opening possibilities. taking the impossible from lab ... to life. on techknow, our scientists bring you a sneak-peak of the

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i say clearly it's productivity. we need to produce more, better. so we -- we are talking about real reporting that brings you the world. giving you a real global perspective like no other can. real reporting from around the world. this is what we do. al jazeera america. >> 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 practice creates 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 seeing on 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.

welcome to al jazeera america. i'm del walters. these are the stories we are following for you. in the wake of a scandal, new jersey governor chris christie preparing to make his state of the state address. reviewing the nsa, a senate committee set to review the recommendations by the presidential panel. and egyptian voters go to the polls deciding on a new constitution. updating our breaking news coming out of roswell, new mexico police confirming there has been a shooting at a middle school there.