When historians and political scientists discuss the powers and authority of each state’s various branches, the consensus has been that North Carolina’s governor is among the weakest. However, this long-held view will need to be reevaluated after yesterday’s superior court ruling.
The majority of the Wake County Superior Court three-judge panel overseeing the Stein v. Hall case agreed with Stein’s argument that North Carolina’s constitution establishes a “unitary executive,” , despite there being nine other members on the Council of State, I previously broke down the errors in the governor’s argument of quilting together the “Vesting” and “Take Case” clauses to say that “the executive power is solely vested in the governor” (page 18).
This argument of a unitary executive has been made before under Gov. Roy Cooper, who claimed these constitutional provisions gave him power over federal block grants. That notion was rejected 6-1 by a Democratic-majority State Supreme Court, with Justice Anita Earls’s sole dissent.
Still, the majority of the court argues that Cooper 1 (also referred to as Cooper v. Berger, 2018) is controlling, and the board of elections must be under the Governor.
Because the State Board and county boards exercise executive functions, the question becomes whether the Governor, under Senate Bill 382, has sufficient control over those entities. Again, Cooper I is controlling. Our Supreme Court has held that ‘Article III, Section 5(4) of the North Carolina Constitution requires “the Governor [to] have enough control over” commissions or boards that “are primarily administrative or executive in character” to perform his [or her] constitutional duty,’
While Cooper 1 states that the Board of Elections must be constructed to institute the “Governor’s policy preferences,” the court ignores McCrory v. Berger, which is foundational to Cooper 1. In footnote 5 of McCrory, the court makes clear they are not weighing into how the Governor’s “Take Care” nor the separation of powers clause interacts with independently elected members of the Council of State.
Cooper 1 explicitly states it is an application of McCrory v. Berger, a case that deals with the separation of powers between the legislative and executive branches. Though the three-judge panel cites both cases in their ruling, they expand this to now apply to the other members of the Council of State. In doing so, they completely write out Article III section 7(1), effectively moving all executive powers under the Governor.
The constitution clearly outlines the legislature’s authority to distribute power to the executive offices that comprise the Council of State (article III Section 7 (2) of the North Carolina Constitution) and to modify and change the authority and powers of various agencies (article III Section 5(10) of the North Carolina Constitution), even those under the governor. The idea that the governor has broad authority over all appointments and holds sole executive authority in the state runs counter to the state constitution and the understanding that each Council of State member has autonomy as part of the executive branch.
The dispute about the governor’s ability to interfere with the autonomy of different executive members can be seen even in the 1990s, when the North Carolina Department of Justice found that the governor usurped the authority of other statewide executives attempting to mandate the filing of financial disclosure for appointments assigned to other members of the Council of State.
This case is unlikely to survive an appeal to higher state courts. Not only does it greatly exceed the scope of both McCrory v. Berger and Cooper 1, but also invalidates other parts of the North Carolina Constitution.
I have previously written about how the court was mistaken in its ruling in Cooper 1, and this case will likely be a vehicle in addressing that precedent.
