Injunction of Legislature Advice and Consent Process Dissolved
Posted on February 14, 2017
North Carolina Superior Court Judge, Jesse Caldwell, dissolved the temporary restraining order prohibiting the North Carolina General Assembly (NCGA) from exercising “Advice and Consent” authority over Governor Roy Cooper’s cabinet appointments. You can read the six-page order here.
This order turns on understanding how injunctions work under the North Carolina Rules of Civil Procedure. In order to warrant an injunction to maintain the status quo during litigation while the case proceeds on the merits, the party seeking the injunction must demonstrate to the court that it will suffer irreparable harm if the injunction is not issued.
In plain English, this means that Cooper had to prove that if the court did not stop the NCGA Advice and Consent process, he would be harmed in some way that the court cannot fix down the road in the litigation. Cooper argued that without the injunction, he would not be able to run the executive branch of the North Carolina government because he wouldn’t have agency heads.
The court, correctly in my opinion, held that because Cooper’s appointments are free to serve under existing North Carolina statutes during the interim period between their nomination and confirmation. This means unless and until the Senate rejects them formally, Cooper’s irreparable harm argument is premature. There is no harm, really, unless and until the Senate rejects once of Cooper’s appointments.
That said, the legal case regarding whether the NCGA’s action is an unconstitutional violation of separation of powers will continue in the courts. The court specifically declined to rule on whether Cooper is likely to succeed on the merits. Because Cooper did not meet the irreparable harm burden, it was not necessary to decide whether success is likely on the merits.