@NCCapitol

@NCCapitol

Power struggle between Cooper, lawmakers in hands of judges

Posted March 7

— Lawyers for Gov. Roy Cooper argued Tuesday that state lawmakers illegally undercut his authority before he even took office in January, while lawyers for legislative leaders maintained that the General Assembly has the power to give certain powers to the governor or take them away.

A continuing power struggle between the two branches of government has enveloped the third, with a panel of three Superior Court judges tasked with deciding the constitutionality of two laws the Republican-controlled legislature passed shortly after Cooper, a Democrat, unseated Republican Gov. Pat McCrory. There was no word on when the panel might rule on the case.

"Does the separation of powers clause mean what it says?" said Jim Phillips, a lawyer for Cooper. "They say it doesn't mean what it says and that it's OK for the General Assembly to enact laws that encroach upon the authority of the executive."

At issue are laws the General Assembly passed in a special session in mid-December that require Senate confirmation of Cooper's cabinet secretaries, slashed the number of state positions to which the governor can appoint supporters and overhauled the structure of North Carolina's state and county elections boards.

Cabinet secretaries are "the alter egos" of the governor, Phillips said, and requiring Senate confirmation essentially gives lawmakers veto power over the governor's picks to lead major state agencies, such as the Department of Health and Human Services and the Department of Public Safety.

Martin Warf, a lawyer for House Speaker Tim Moore and Senate President Pro Tem Phil Berger, countered that the legislature has granted governors appointment powers over the decades but that such powers aren't constitutionally protected. Reducing those powers violates the separation of powers if it interferes with the governor's ability to carry out state laws, Warf said.

Judge Todd Burke of Forsyth County noted that governors have historically had "unfettered appointment authority" and questioned how the Senate implementing a confirmation process doesn't infringe on that gubernatorial power.

Warf responded that, just because lawmakers haven't amended the laws on cabinet appointments for more than a century doesn't mean they can never do so.

"Advise and consent by its very nature is not a violation" of separation of powers, he said.

But Phillips insisted that determining who becomes a cabinet secretary – "officials at the top of the food chain" of state government – goes beyond the authority of the General Assembly, which is empowered only to create state agencies and delineate their duties.

"Once that's done, it becomes the governor's job to carry out those functions," he argued.

Cooper given fewer at-will employees

Lawmakers similarly cannot dictate who serves in other managerial and policy-making decisions in the administration, said Eric David, another Cooper attorney.

When McCrory took office in 2013, the General Assembly more than tripled the number of positions in state government that were exempt from State Personnel Act protections, allowing him to remove what he called "seat warmers" and put his own supporters in their place.

Lawmakers slashed the number of exempt positions from 1,500 to 425 before Cooper was inaugurated and made scores of McCrory appointees "career-status" state employees, making it difficult for Cooper to remove them. David said at least 124 McCrory loyalists are now "embedded in the heart" of Cooper's administration.

"The choice of whom to employ in top posts was taken away from Gov. Cooper and given to the General Assembly," David said.

Candace Friel, another attorney for the legislative leaders, said Cooper's side was overstating the argument that all of those previous employees will interfere with the new administration's policies and that they cannot be removed if they try.

"At some point, aren't we getting to the level where people have no influence on policy?" Friel asked.

Judge Jesse Caldwell of Gaston County asked why lawmakers only a few years ago dramatically expanded the number of exempt positions only to reverse course.

Friel said maybe lawmakers realized they had gone too far or that the moves a few years ago didn't accomplish what they were expected to.

Caldwell noted President Donald Trump's administration has been plagued by leaks, insubordination and other problems by holdovers from President Barack Obama's administration, and the same thing could happen in North Carolina's state government.

"Government employees can slow things down, or things falls through the cracks," he said. "In essence, you wind up with a stealth or a shadow government."

The judge repeatedly pressed Warf, Friel and Noah Huffstetler, a third attorney for Moore and Berger, as to the timing of new laws, which were adopted about two weeks before Cooper's inauguration. He appeared irritated when they all responded that that timing was irrelevant in determining the constitutionality of the laws.

"Courts are allowed to look behind the intent to see if it's a pretext," Caldwell said.

Ethics, elections oversight combined

The third argument heard by the three-judge panel involved a law that dissolved the five-member State Board of Elections and shifted its responsibilities to the eight-member State Ethics Commission.

Under the new arrangement, the board would be evenly split between Democrats and Republicans, the governor and the General Assembly would appoint four members each, and Republicans would hold the chairman's seat in even-numbered years – when all major elections are held. The governor previously appointed all five members to the elections board, with his or her party holding a 3-2 majority and the chair.

As with the confirmation process and the at-will employees, Phillips argued, the changes make it more difficult for Cooper to fulfill his duty and enforce state elections laws.

"The defendants say separation of powers is a guidepost, but clearly, they do not believe it is a stop sign or even a yield sign," he said.

The requirement of a six-vote super-majority of the new board to take any action will likely paralyze it more often than not, Phillips said, with legislative appointees frustrating Cooper's ability to ensure fair elections.

Judge Jeffrey Foster of Pitt County asked whether such hypothetical arguments could be used to invalidate the law, noting lawmakers must be given the benefit of the doubt.

While Phillips said a state Supreme Court ruling in a separation-of-powers case McCrory brought against lawmakers dictates that the court must consider what could happen, Huffstetler disagreed.

"It is too soon now for this court to declare that this act is unconstitutional based on conjecture and speculation about what might happen in the future," Huffstetler said, noting that state law would allow the governor to step in and demand changes if the new board repeatedly fails to act.

"There's no reason to think that this board, which has operated for 10 years as the ethics board with the very same makeup, and nobody has said that that board isn't working, won't work in the future," he said.

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