Cooper expands suit vs. GOP leadership, says parts of budget unconstitutional

Posted August 8, 2017 2:18 p.m. EDT
Updated August 8, 2017 4:27 p.m. EDT

NC Flag, Legislative Building, Raleigh

— Gov. Roy Cooper has added again to his ongoing legal fight with Republican General Assembly leaders, saying several portions of the budget the legislature passed over his veto in June are unconstitutional.

In a court brief filed Tuesday, Cooper added three complaints to his list of grievances, all tied to GOP efforts to rein in gubernatorial powers after Republican Gov. Pat McCrory lost to Cooper, a Democrat, in last year's general election.

The filing targets budget language that lays out repeated increases of at least $10 million a year, for 10 years, for the Opportunity Scholarships private school voucher program. The budget orders the administration's budget director to include this money in future budget proposals, eventually building the program to $134.8 million a year.

"By dictating what the governor must include in his proposed budget, the General Assembly is exercising core executive power in violation of separation of powers," Cooper's filing states.

The suit also notes budget language that tinkers with federal block grant spending, arguing that the General Assembly "has no authority to appropriate these federal funds because they were provided to the state pursuant to federal law and congressional policy." Once grants are accepted, it's the governor's duty to spend them as required, the filing states.

The final new argument deals with the $87 million North Carolina expects to receive from Volkswagen as part of a national settlement reached after the car company fudged vehicle emission figures. Under that settlement, the governor is empowered to pick the state agency that administers these funds, and Cooper argues that the General Assembly usurped executive branch authority when it decreed in the budget that none of this money can be spent without General Assembly approval.

Senate President Pro Tem Phil Berger, a named defendant in the suit, dismissed the governor's filing as another attempt to have the courts block the legislature from exercising its own power.

“Today Gov. Cooper asked our court system to anoint him as both the governor and the legislature at the same time." Berger, R-Rockingham, said in a statement. "We expect the judiciary will see through his thinly-veiled power grab, follow the constitution and dismiss this frivolous lawsuit."

The speaker's office said it was reviewing the filing and had no immediate comment.

Cooper's latest brief builds on an already voluminous case over constitutional powers. Shortly before he took office, legislators met in special session to limit his appointment powers in several ways. During the recent regular session, lawmakers voted to shrink the Court of Appeals from 15 judges to 12, which Cooper's lawsuit considers a blatant attempt to keep him from filling vacancies on the court as judges hit the state's mandatory retirement age.

"The General Assembly's appetite for reducing the authority exercised by the governor and interfering with the constitutional duties of the executive did not diminish with the governors swearing in," Cooper argues in his suit.

This post will be updated with comment from GOP leadership when it is received.