A Struggle For Political Power In North Carolina

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jan 3, 2017

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North CarolinaEvery state, like the federal government, follows the principle of separation of powers. The power to make the law is vested in the legislative branch, the power to enforce the law exists in the executive branch, and the power to set aside laws that are unconstitutional resides in the judicial branch. The governor, presiding over the executive branch, is typically responsible for the administrative agencies that enforce civil laws.

Political observers warn that partisanship is threatening the delicate balance of executive and legislative power in many states. The struggle for power between executive and legislative leaders, however, is nowhere more apparent than in North Carolina.

North Carolina Election

In a tight race, Roy Cooper defeated incumbent Governor Pat McCrory in North Carolina’s gubernatorial election. Bucking the national trend, voters elected a Democrat to replace a Republican.

Republicans hold a majority in both houses of the state’s General Assembly. After the election, the Assembly passed a bill that limits Cooper’s power to make political appointments. The bill:

  • Makes the governor’s appointment of Cabinet officials subject to approval by the state Senate
  • Removes the governor’s authority to appoint members of the boards of trustees for each campus of the University of North Carolina
  • Reduces the number of appointees who serve at the pleasure of the governor from about 1,800 to about 300.
  • Removes certain authority from the State Board of Education and give it to the Republican state schools superintendent

Another bill replaces the State Board of Elections with an expanded Ethics Commission. Republicans said the change in law would make election oversight bipartisan. However, since the governor has the power to choose a majority of the Board of Elections, some observers are asking why the legislature only discerned a need for bipartisanship after a Democrat was elected as governor.

The legislation was adopted in a special session called to address hurricane disaster relief after McCrory was defeated. Critics refer to the legislation as a “power grab.” Representative Craig Meyer, a Democrat, called the bill “a blatant political move” by a party that was trying to hang onto its power.

Separation of Powers

In the last five years, the North Carolina General Assembly has passed a number of controversial measures, including redistricting legislation that is under review by the Supreme Court, a voter ID law that a federal court of appeals struck down because it “targeted African-Americans with almost surgical precision,” and a controversial law that limits the right of transgender people to choose the public bathroom they will use.

However controversial those measures might be, none of them strike at the heart of government in quite the same way as an attempt to strip a governor of powers that other governors have historically exercised. On the other hand, whether the legislature exceeded its constitutional authority is a matter of divided opinion.

Michael J. Gerhardt, director of the Program in Law and Government at the UNC School of Law, said the new laws are “designed to essentially eviscerate the governorship … and that’s a violation of separation of power.” He suggested it would be just as upsetting if a General Assembly controlled by Democrats stripped an incoming Republican governor of traditional powers.

Defending the legislation, a spokeswoman for Senate leader Phil Berger argued that the bills do not violate the state constitution because senators have the right to give “advice and consent” on many political appointments. Whether that prerogative extends to the governor’s cabinet officials is not clearly specified in the state constitution.

History Lesson

This is not the first time that the separation of powers issue has arisen in North Carolina. Democrats tried to limit Republican Gov. Jim Martin’s appointment powers in 1984. In 1988, when a Republican was elected as lieutenant governor, Democrats stripped that office of many of its powers. According to one observer, the “tug-of-war between the governor and legislature over administrative agencies” has been raging for more than thirty years.

Governor McCrory signed the bill to limit gubernatorial appointment powers while claiming he was “actively working as your governor to protect the separation of powers between the legislative and executive branches of government.” Ironically, when the General Assembly attempted to limit executive power by creating its own “independent” commissions to exercise executive power, McCrory sued the Assembly — and won.

Incoming Gov. Cooper might use the precedent McCrory created to mount his own legal challenge to the new law. He has threatened to do so, but legal analysts are uncertain whether he would prevail. The only clear outcome is that state taxpayers, already burdened with millions of dollars in legal fees that the Assembly has incurred to defend controversial laws, will be asked to pick up the tab for North Carolina’s latest political war.


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