Locke, NCICL support lawmakers in Cooper v. Berger appointments fight

The John Locke Foundation and North Carolina Institute for Constitutional Law are supporting state legislative leaders in their legal battle with Gov. Roy Cooper over appointments to seven state boards and commissions.

Cooper filed suit in 2023 to challenge Senate Bill 512 and House Bill 488. The laws changed appointment structures for seven state boards. Cooper objected to changes that took appointments away from the governor’s office.

A three-judge panel upheld the changes to five boards but struck changes to the state Board of Transportation and Economic Investment Committee.

The Democratic governor and Republican legislative leaders filed competing appeals. The case sits now with North Carolina’s second-highest court.

Locke and NCiCL filed an amicus, or friend-of-the-court, brief in the case Thursday

“The crux of the controversy is whether the North Carolina Constitution gives a governor the power to control a majority of appointments to every board and commission, so that he may implement ‘executive policy’ consistent with ‘his views and priorities,’” wrote NCICL’s Jeanette Doran. “A three-judge panel of Superior Court judges decided below to consider the issue on a board by board (or commission by commission) basis, ultimately enjoining the challenged laws with respect to only two of the entities. Amici agree with the decision of the Superior Court panel and file this brief in support of Legislative Defendants-Appellees.”

“Article I, § 2 is the starting point for any analysis of our state Constitution: ‘All political power is vested in and derived from the people.’ … This provision has been appropriately read to mean that the North Carolina Constitution ‘is a restriction of powers and those powers not surrendered are reserved to the people to be exercised through their representatives in the General Assembly; therefore, so long as an act is not forbidden, the wisdom and expediency of the enactment is a legislative, not a judicial, decision,’” Doran explained.

“As North Carolina courts repeatedly recognized, courts should not lightly overturn the General Assembly’s long-standing interpretation of a provision of the North Carolina Constitution,” she wrote. “Here, the General Assembly has, for many years, construed the state constitution as authorizing legislative appointments to countless boards, authorities, and commissions.”

The state constitution’s Separation of Powers clause calls for state legislative, executive, and judicial powers to be “separate and distinct.” “It does not mandate such powers shall be equal,” Doran wrote.

Unlike the “overwhelming majority” of state constitutions, North Carolina’s governing document does not prohibit one branch from exercising the power of another branch, Doran added. “Many powers of the state government are shared by more than one branch.”

“There is no violation of the separation of powers when the Governor approves a piece of legislation even though his approval is as integral a part of the law-making process for most laws,” Doran wrote. “Conversely, the General Assembly is vested with powers that appear inherently executive.”

Legislators assign roles to the lieutenant governor, attorney general, secretary of state, and other members of the Council of State. “There is no violation of the separation of powers when the General Assembly prescribes the duties of these officers who are undoubtedly members of the executive branch.”

Separation-of-powers violations occur “only when one branch exercises a power that the Constitution has allocated to another,” according to the brief.

“Given the language and history of the North Carolina Constitution, the people of North Carolina clearly intended for the General Assembly to have the authority to make appointments to boards or to assign the appointment authority to members of the Council of State,” Doran wrote. “Consequently, the exercise of that power to appoint does not infringe on a power reserved to another branch of state government.”

“The powers of government are separate in so far as the Constitution makes them separate, and no further,” she added.

NCICL and Locke rebutted Cooper’s reliance on two clauses of the state constitution — the Vesting Clause and the Faithful Executive clause — to support the governor’s continued control of state board appointments. “[T]he constitutional clauses that he cites cannot be quilted together to create a unitary executive,” Doran wrote.

“The Governor’s across-the-board challenge to SB 512 and HB 488 hinges on a theory that the General Assembly may not deprive a governor of any power or jurisdiction of the executive branch. Not only is that notion inconsistent with the General Assembly’s power to assign the duties of most executive branch constitutional officers, but it is also unsupported by the language of the Executive Vesting Clause which … contains no express restriction on the General Assembly,” Doran explained.

“If drafters had intended to stop the General Assembly from legislating on the assignments of authority within the executive branch merely because executive power is ‘vested’ in the Governor, then the drafters would have included some language stating the General Assembly had no power to deprive the Governor of any power or jurisdiction that belongs to the entirety of the executive branch. But they didn’t,” she added.

“In fact, the constitution assumes the General Assembly has the power to make appointments,” Doran wrote.

Cooper cannot veto legislative appointments, for example. “The appointments exception to the Governor’s veto power is strong evidence that the Constitution authorizes the General Assembly to make appointments,” Doran explained.

“The Faithful Execution Clause requires that a governor ‘take care that the laws be faithfully executed,’” the brief continued. “That language does not bestow upon a governor the right to enforce his policy preferences as he goes about executing the laws enacted by the General Assembly, nor does it not imbue in the office of the governor supervisory responsibility over the whole executive branch.”

Doran spelled out potential consequences of Cooper’s legal argument. “The Governor’s arguments, if adopted by this Court, would cast doubt on the validity of past actions of every single board and commission in which a member (especially a majority) has been appointed by the General Assembly,” she wrote.

The Appeals Court has not yet scheduled arguments in this case, titled Cooper v. Berger, or in another case with the same name challenging legislative plans to restructure the State Board of Elections.

The post Locke, NCICL support lawmakers in Cooper v. Berger appointments fight first appeared on Carolina Journal.