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Arguments far apart

The oral arguments at the North Carolina Supreme Court on Tuesday make clear that North Carolina’s governors and the highest ranking members of the General Assembly could not be farther apart on the issue of the Governor’s authority.

The issue is narrowly the constitutional authority to appoint statutory officers, including members of commissions. It more broadly raises the authority of the Governor to execute laws.

In a spirited exchange with the Justices, the stark differences in the positions became clear.

Here is the exchange with one of the lawyers representing Senate Pro Tempore Burger and Speaker Moore and other named defendants:

Justice Ervin: “As a matter of constitutional law, is there any limit on the General Assembly to appoint to the Governor’s cabinet?”

John Culver: “No.”

Here is the exchange with one of the lawyer representing Governors McCrory, Hunt, and Martin

Justice Newby: “Any appointment by the General Assembly of an individual that serves on a commission housed in an executive branch is a violation [of separation of powers]?”

John Wester: “Yes.”

At the heart of this debate are three provisions in the North Carolina Constitution: separation of powers1, the duty of the governor to execute laws2, and the authority to appoint 3.

The appointment clause grants authority to the Governor to appoint with a confirmation process through the Senate, except there is a phrase at the end of the clause that reads “officers whose appointments are not otherwise provided for.” The General Assembly argues based on prior case law and its reading of the appointment clause that this means that the General Assembly may provide for the appointment of any statutory officer and that the Governor’s power is at issue only if the General Assembly has not provided for the appointments. Thus, in response to Justice Ervin’s question aimed at testing the reach of this position, the General Assembly’s attorney says that this means that even the officials that would work most closely with the governor in executing laws — officers in charge of principal agencies that are a part of the Governor’s cabinet — could be appointed by the General Assembly.

The Governors, through their attorneys, say absolutely not. They argue that the appointments clause must be read in conjunction with the separation of powers clause. John Wester framed his arguments that this case is about the execution of laws and which branch gets to choose the individuals responsible for executing the laws. He argued that “once [the General Assembly] passed law — their work is complete. They cannot appoint anyone.” In response to a question by Chief Justice Martin, Mr. Webster replied “when any board or commission is acting to carry out the laws, the General Assembly cannot participate in the carryout out of laws.” He said further, “if the principal thrust is to carry out the laws, the executive branch is the only one to make the appointments.”

How could such a fundamental issue to the operation of government have not already been resolved?

The issue of appointment authority has been raised for years. For decades, Governors have complained and challenged actions by the General Assembly4. More broadly, executive authority and separation of powers have been a part a much larger debate on creating a balanced and effective government. James Madison criticized North Carolina and other states for “a powerful tendency in the legislature to absorb all power into its vortex.”5 This opinion will be crucial on whether it creates any breaks to this kind of power in regard to commissions and all appointments.

To resolve these stark differences, Justices will consider the language of the constitution and the Court’s prior opinions. The history of the appointments clause follows a familiar story. In 1868, the framers of the constitution sought greater balance of powers and an opportunity to reform governance. This was a coalition that included newly enfranchised blacks along with native and out-of-state whites. They also saw opportunities for them to lead the state by moving their agenda through the executive branch. This is part of the basis for our long ballot of state elected officers. As a part of this, the framers gave appointment authority to the Governor. In 1875 when a constitutional convention was held, the power no longer rested with this coalition. It had returned essentially to those who had been in charge before the Civil War through a turbulent and sometimes violent process. In a recalibration, constitutional amendments shifted power back to the legislature, including by rendering the appointments clause meaningless. While there were many efforts to rewrite the constitution in the 1900s, it was not until the adoption of the 1971 Constitution that provisions like the appointments clause were revisited. The wording was changed again but not in a way that makes it perfectly clear how it should be implemented in light of other constitutional provisions such as the separation of powers clause.

While the Court may look at many opinions, there are two, Wallace v. Bone and State ex. Rel. Martin v. Melott, that will take center stage. Wallace narrowly stands for the proposition that legislators cannot appoint themselves to state positions. John Wester argued on behalf of the Governors that this is a “distinction without a difference” and that the prohibition should be the same whether it is the legislator or a legislative appointee. Melott is a messy opinion with a three-justice plurality opinion, a two-justice concurrence and a one-justice dissent. The attorneys for the General Assembly argue that this decision compels finding that the General Assembly has the power to appoint. The Governors’ lawyers argue essentially for corrective action where the power to appoint is squared with separation of powers.

The balance of power is fundamental to the operation of the state.

It also has a direct impact on public schools. Commissions like the charter school commission that has appointments from the Governor and the House and Senate may be affected. Appointments are only one piece of effectively executing laws. But it matters greatly. Not just to those struggling for the power but by all of us affected by the power.

Show 5 footnotes

  1. Art. I, Sec. 6.  Separation of powers.

    The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

  2. Art. III, Sec. 5.  Duties of Governor.

    (4)        Execution of laws.  The Governor shall take care that the laws be faithfully executed.

  3. Art. III, Sec. 5.  Duties of Governor.

    (8)        Appointments.  The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.

  4. For an extensive review, see: “A Study in Separation of Powers: Executive Power in North Carolina” by Arch T. Allen, III.
  5. A Study in Separation of Powers: Executive Power in North Carolina” by Arch T. Allen, III. Footnote 21.
Ann McColl

Ann McColl is an attorney practicing in the field of education law since 1991. She currently serves as co-founder and president of the Innovation Project.