Top NC court to weigh balance of executive, legislative powers

North Carolina’s previous two governors secured rulings from the state Supreme Court that helped shift the balance of government’s executive and legislative powers.

Now top lawmakers are asking the same court to determine that those previous rulings were wrong.

The high court will hear 2 ½ hours of arguments in November in a pair of lawsuits pitting current Gov. Josh Stein, a Democrat, against Republican legislative leaders.

The cases address new limits on Stein’s ability to fill statewide judicial vacancies, as well as his authority to appoint members to boards and commissions.

Top legislators are also urging justices to reconsider rulings favoring former Republican Gov. Pat McCrory in 2016 and Democrat Roy Cooper in 2018.

“Those decisions were wrongly decided and should be overruled,” legislative lawyers argued on Sept. 2. “McCrory and Cooper I departed from constitutional text, history, and more than a century of precedent to conjure a new gubernatorial power not found anywhere in the Constitution — the power to make ‘executive policy.’”

Lawmakers point to one line in Article III, Section 5 of the North Carolina Constitution: “The Governor shall take care that the laws be faithfully executed.”

The McCrory and Cooper decisions transformed this “Take Care Clause,” legislators argued, “from a duty that requires the Governor to follow the law, into a sweeping grant of power that requires he be given ‘enough control’ over every board and commission to ensure it carries out his ‘policy preferences.’”

“But the Constitution assigns policymaking authority to the General Assembly, not the Governor,” legislative lawyers argued. “And for more than a hundred years, this Court held that appointment is merely ‘a mode of filling the offices created by law’ — not an exercise of the office’s power or control over the appointee.”

“The decision how to allocate appointments to statutory boards and commissions — and what mix of perspectives will best ensure that boards and commissions carry out the policies reflected in the State’s laws — is thus a decision that should be left to the People, acting through their representatives in the General Assembly,” lawmakers added.

Stein’s lawyers asserted in their opening briefs, also dated Sept. 2, that lawmakers are encroaching on the governor’s constitutional authority.

Article IV spells out lawmakers’ role in some judicial appointments. “But for vacancies in other judicial offices, including the Judges and Justices of our Court of Appeals and Supreme Court, the plain text of the Constitution gives the Governor exclusive appointment power and explicitly prohibits the General Assembly from prescribing a different process,” Stein’s lawyers wrote.

The governor cites the “seminal treatise on the North Carolina Constitution,” co-authored by Supreme Court Chief Justice Paul Newby. It says “the Constitution gives the Governor an ‘unfettered power of appointment’ for appellate judicial vacancies.”

Stein also objects to lawmakers’ removal of his appointment powers.

“Legislative Defendants have assigned a near-majority of appointments to themselves and transferred some of the Governor’s appointments to Council of State members aligned politically with the legislative majority,” the governor’s lawyers argued. “This design is plainly intended to ensure that executive branch agencies are controlled by a cumulative majority of legislative appointees and allies.”

“Importantly, the General Assembly claims that nothing in our Constitution limits this tactic,” Stein’s lawyers warned. “The General Assembly, in its view, can at any time — even in the lame duck period after an election — change the makeup of a board or commission implementing the substantive law. This gives the General Assembly control over the law’s execution and the ability to substitute its choice over the people’s choice of executive policymaker.”

The state Appeals Court ruled against Stein and in favor of Republican lawmakers on all but three sets of appointments. Top legislators “have already used the lower court’s rulings as approval to continue their effort to control not only the enactment of laws, but also their execution,” the governor argued.

“This Court should put an end to this unconstitutional escapade,” Stein’s lawyers argued. “Our Constitution’s guarantee of separation of powers prevents the General Assembly from controlling the execution of the laws it enacts.”

Newby is the only justice remaining from the courts that decided the McCrory and Cooper cases. He dissented from both rulings and supported legislators’ arguments.

It’s unclear whether Newby’s views have changed during the past eight years. It’s also uncertain whether the current court, with its 5-2 Republican majority, will seek to overturn precedents favoring the governor’s office.

Court observers can watch for clues when justices listen to arguments on both sides of the dispute on Nov. 10.

Mitch Kokai is senior political analyst for the John Locke Foundation.