Spate of bills the latest volleys in longtime power struggle between NC legislature and governor

On its face, the proposed legislation, which has already passed a key committee on Tuesday, might appear to be a simple effort to give North Carolinians more power to choose who oversees the state’s public schools.

But the measure is more than that: It’s the latest skirmish in the decade-long battle between North Carolina’s state lawmakers and its governors over who should run the state.

In the current legislative session alone, Republican lawmakers have also introduced other bills that, if passed, would limit a governor’s ability to make appointments to fill vacancies on the Council of State or state courts.

And over the past decade, at least six lawsuits have been filed by governors challenging legislation they claimed would infringe on their constitutional executive powers. More often than not, the courts have sided with the governors. But political changes within the judiciary could soon swing the pendulum the other way.

The most recent example of attempts to curb executive power came as the 2023 New Year began, when Gov. Roy Cooper lost some of his executive power to respond to emergencies. That provision, housed in the 2021 budget, stemmed from Republican state lawmakers’ frustration over Cooper’s unprecedented emergency orders during the COVID-19 pandemic.

On March 10, 2020, following the national declaration of a state of emergency, Cooper declared one at the state level, followed by orders closing schools, restaurants, bars, gyms, churches and nonessential businesses, banning mass gatherings, requiring masks, and ordering all but essential personnel to stay home.

“There was a recognition at the time that these were necessary, but tough, actions to take place. And they were done in a thoughtful way,” said Wiliam McKinney, Cooper’s general counsel at the time.

Cooper issued dozens of COVID-related emergency orders in 2020 and 2021. As the pandemic waned, so did public support for COVID restrictions, and they were eventually eased.

But the state of emergency itself wasn’t terminated until late last year. Cooper had said that leaving the extended state of emergency provided regulatory flexibility to healthcare facilities dealing with the pandemic. At his request, lawmakers changed healthcare regulations to allow for the same flexibility once the order was terminated.

Still, GOP lawmakers chafed over what they saw as abuse of the governor’s emergency powers.

“What we saw in COVID was a significant accumulation of power in the hands of one individual, which I think, long-term, is inconsistent with our history and not consistent with our form of government,” Senate Leader Phil Berger, R-Rockingham, said last week.

Under the new law, the governor may issue a statewide emergency order for up to 30 days. It cannot be extended without the concurrence of a majority of the Council of State, whose votes must be recorded and made public. If the Council of State consents to extend the state of emergency, it can last another 30 days for a total of 60 days from issuance. Any further extension would require permission from the state legislature.

Although Cooper vetoed an earlier bill, House Bill 264, that would have limited his emergency powers to an even greater extent, he signed the 2021 budget even though it included the provision that’s now law.

At that point, Cooper had plenty of experience with lawmakers’ attempts to strip away the power of the governor’s office.

In late 2016, after he defeated incumbent Republican Gov. Pat McCrory but before he was sworn into office, Republican state lawmakers hurriedly convened a lame-duck extra session to pass two bills stripping the governor’s office of several key powers.

House Bill 17, which passed largely on party lines in December 2016, gave lawmakers the governor’s appointments to boards of trustees in the UNC system and the state charter school advisory board. It also cut the number of political patronage appointments the governor can make by 80%, while increasing the number for other members of the Council of State and the state Superintendent of Public Instruction, incoming Republican Mark Johnson. It also required Senate confirmation of the governor’s cabinet appointments.

Senate Bill 4, passed the same day, restructured the state board of elections, previously appointed solely by the governor, to give lawmakers and the governor equal control over who serves on it. It also combined the elections board with the state ethics commission and the lobbying regulation housed under the secretary of state’s office.

Both bills were unveiled, debated and enacted within 72 hours, leaving little time for public notice or comment. McCrory, on his way out of office, quickly signed both into law.

GOP lawmakers “thought they'd send a message,” McKinney said. “And they thought they would try to run elections and take away any sort of ethics investigation authority. And we took 'em to court, and we won.”

After a lawsuit, the state courts undid the changes to the state elections board and returned the power to appoint its members to the governor’s office. But the UNC system appointments stayed with lawmakers, and the political patronage jobs were never restored.

New efforts along the same lines persist today. Bills to change who makes key appointments are underway in the current legislative session, with Republican lawmakers targeting the governor’s power to fill vacancies on the Council of State and in the courts — in addition to the bill on the education board, which cleared a House judiciary committee on Tuesday.

History shows the fight between the legislative and executive branches isn’t strictly limited to governors of the opposing party.

During his tenure from 2013 to 2017, McCrory, a Republican, also went to court to fend off legislative moves to co-opt some of his powers.

Most notably, McCrory and lawmakers battled in court over appointments to the state’s Mining Commission, the Oil and Gas Commission and Coal Ash Commission. Those commissions were in the spotlight due to the legislature’s legalization of fracking in North Carolina and the 2013 Duke Energy coal ash spill into the Dan River.

When lawmakers voted to allow fracking, they also gave themselves appointing authority over half the regulatory commission tasked with overseeing it. And when they created the state Coal Ash Commission, they gave themselves appointment powers to that, too.

McCrory was joined in the lawsuit by former governors Jim Hunt, a Democrat, and Jim Martin, a Republican. They argued that the legislature’s taking of appointments violated the state constitution’s Appointments Clause and Separation of Powers Clause.

In McCrory v. Berger, filed in 2014 and resolved two years later, the Republican-majority state Supreme Court ruled that the state constitution gives lawmakers some rights to appoint members to executive boards if the legislation creating the boards provides for that. But they can’t give themselves the power to appoint more members than the governor, or members that the governor cannot remove for cause.

“Legislators make laws. Executives administer the laws,” McKinney said. “The more that those lines of authority get crossed, the more confusing it can be for everyone.”

Jeanette Doran leads the conservative N.C. Institute for Constitutional Law. She says the state constitution gives lawmakers greater authority than the governor.

“Our state constitution provides that we've got three separate and distinct branches of government, the executive, legislative and the judicial. But that provision of the constitution doesn't specify that they're equal, and that's not been our standard throughout North Carolina history,” Doran told WRAL News. “North Carolina has historically had a much stronger legislative branch than we've had an executive branch.”

“During most of the 20th century, we had a legislature that really was principally responsible for government and governance in North Carolina,” Doran explained. “It really hadn't been until, frankly, the McCrory administration when we saw a push by the executive branch for more authority, more power, more control.”

Doran views legislative moves to limit gubernatorial powers as “pushback” on the McCrory ruling. “What we're seeing is the legislature saying, ‘That was a mistake. We had some not great court precedents. Let's go back to the way the state had functioned for almost 200 years.’”

Doran also anticipates that a Republican majority on the state Supreme Court — elected last November — could rule differently on future questions of executive power.

“I think they're going to take a closer read of the actual text of the Constitution, and I think they're going to use history to inform their decisions,” Doran said. “And I think that's going to be useful for the public to understand how we got to where we are.”

Berger, whose son serves on the state Supreme Court, agreed.

“As a result of court decisions that have taken place over the past five years or so, you've seen a shift in the understanding of the various powers and the balance of powers among the branches,” Berger told reporters. “I think that shift is, in my opinion, inconsistent with the constitution as drafted.”

Berger said he had not yet spoken with his caucus about the House’s proposal to remove the governor’s power to appoint the State Board of Education, or about any other specific legislation to further curb executive power, but said he would be personally interested in proposals “to rebalance in a way that's consistent with the historical understanding.”

“Historically, North Carolinians have had a healthy concern about the accumulation of power in the hands of one person,” Berger said. “That, in my opinion, is at the core of the rebalancing that needs to take place.”

McKinney, the former Cooper counsel, disagreed with the contention that North Carolina’s governorship is historically weak, pointing out that state courts have also historically recognized the importance of the separation of powers.

“The courts have been astute observers of how the branches of government interact and recognize that separation of powers is important,” he said. “I think that it's less about whether all the power between the three branches is precisely equal, and more about whether each of the branches is honoring what their authority is.

McKinney added: “It's hard to legislate, and it's hard to govern. And it's even harder to do both. And I think the courts have acknowledged that. All power is not vested in one branch. That's tyranny. And that's why we have a constitution, and the framers showed an incredible amount of wisdom in setting out those different lanes.”

The governor’s power to appoint the members of the state board of education is not unchecked. Members serve eight-year terms, so appointees of former governors usually serve alongside the current governor’s picks. Eight regional districts must be represented in the membership. And the legislature has the power to confirm or reject the governor’s appointees.

However, House GOP leaders in the current legislative session say board members would be more directly accountable to the voters if they had to run for office.

House Bill 17 would add three more members to the board. They would be elected from the state’s 14 congressional districts and would serve staggered four-year terms.

The Superintendent of Public Instruction would become the chairperson of the board, resolving a longstanding power struggle between the board, which controls policy, curriculum and purse-strings, and the elected executive of the department.

Rep. John Torbett, one of the bill’s primary sponsors, says it’s not aimed at stripping power from the governor.

“The gubernatorial has the power of appointments in a lot of places,” he said. “That's come over the last couple hundred years. But is that still the best way to go?. We can have that discussion till the cows come home, literally. We feel the best way is to give the people a real honest, elected group of individuals to best perform for the education of their children.”

When asked whether the change would overly politicize education in North Carolina, Torbett countered, “Define ‘overly.’”

“Everything we do up here has a political flavor to it or a political slant or bend to it. That's just the nature of the beast,” Torbett said. “Similar to your local school boards that run for office and are elected and campaign on platforms for local school boards, this would be elevating it to the state level.”

If even one Democrat supports the amendment, it appears likely to have the 72 votes needed to pass the House. If Senate Republicans agree, It would go before voters in fall 2024, and if approved, would take effect in 2026.

Meanwhile, House GOP legislators have also proposed a constitutional amendment limiting the governor’s power to appoint a replacement member of the Council of State. Under current law, should a member leave office, the governor can select a replacement of his or her choice to serve till the next regular election. House Bill 74 would limit the governor’s choice to one of three nominees to be submitted by leaders of the former member’s political party. If it wins approval, it would also go before voters in fall 2024 and would take effect in 2025.

And last week, lawmakers also proposed legislation that could stop Cooper from appointing some trial court judges nearing retirement age in the next few years, and could stop future governors from making higher-profile replacements.

Republican lawmakers have targeted Cooper’s ability to appoint judges in the past, like with a controversial bill several years ago that would have shrunk the size of the Court of Appeals specifically to stop Cooper, during his first term as governor, from being able to replace three Republican judges nearing retirement age.

Here are the six executive power lawsuits of the last decade, as summarized by the office of the governor.

Section 1 of Session Law 2017-7 shortened three elected terms on the North Carolina Court of Appeals to less than eight years and stripped from the Governor the authority to make vacancy appointments of judges to fulfill these terms. The legislature repealed this provision before the case was heard on appeal.

The Governor challenged six other boards and commissions with unconstitutional appointment structures (each of which predated McCrory). The trial court declared them each unconstitutional, and the legislature did not appeal. The Governor now makes a majority of the appointments to these board. The boards at issue were the Clean Water Management Trust Fund, Child Care Commission, State Building Commission, NC Parks and Recreation Authority, Rural Infrastructure Authority, and the Private Protective Services Board

Section 6.6.(b) of Session Law 2017-57, a part of the budget bill dealing with private school vouchers, allowed the General Assembly to exercise core executive power by mandating what the Governor must include in his recommended State budget. The trial court dismissed this claim because it held that “preparing the State budget” was a ministerial task, not one requiring the discretion of the Governor. The Governor did not appeal.

Section 13.2.(b) of Session Law 2017-57 sought to appropriate tens of millions of dollars in Volkswagen settlement funds. The Governor’s challenge was denied by the Supreme Court in 2020.

Sections 11A.14.(a), 11L.1, and 15.1.(a) and (d) of Session Law 2017-57 sought to appropriate tens of millions of dollars in federal block grant funds. The Governor’s challenge was denied by the Supreme Court in 2020.