by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The N.C. Supreme Court has ruled, 6-1, in favor of Gov. Pat McCrory in his fight with the General Assembly over appointments to state boards.
Only Justice Paul Newby dissented from the majority opinion that legislative appointments of the majority of members of boards operating in the executive branch represents a violation of the separation of powers.
While the ruling backs McCrory, the full Supreme Court rejected the governor’s argument that the state Constitution’s appointments clause blocks lawmakers from making appointments to administrative commissions.
Writing for the majority, Chief Justice Mark Martin said:
In this case, plaintiffs challenge legislation that authorizes the General Assembly to appoint a majority of the voting members of three administrative commissions. Plaintiffs contend that, by giving itself the power to appoint commission members, the General Assembly has usurped Governor McCrory’s constitutional appointment power and interfered with his ability to take care that the laws are faithfully executed. Plaintiffs’ contentions raise two important questions about the function and structure of state government: (1) Does the appointments clause in Article III, Section 5(8) of the state constitution prohibit the General Assembly from appointing statutory officers to administrative commissions? (2) If not, do the specific appointment provisions challenged in this case violate the separation of powers clause in Article I, Section 6?
We hold that, while the appointments clause itself places no restrictions on the General Assembly’s ability to appoint statutory officers, the challenged provisions violate the separation of powers clause. In short, the legislative branch has exerted too much control over commissions that have final executive authority. By doing so, it has prevented the Governor from performing his express constitutional duty to take care that the laws are faithfully executed. [Emphasis added.]
The ruling applies specifically to three boards: the Oil and Gas Commission, Mining Commission, and Coal Ash Management Commission. But the ruling could have a long-term impact on any board with an executive-branch function.
Returning to Martin’s majority opinion:
In light of the final executive authority that these three commissions possess, the Governor must have enough control over them to perform his constitutional duty.
The degree of control that the Governor has over the three commissions depends on his ability to appoint the commissioners, to supervise their day-to-day activities, and to remove them from office. The legislation that plaintiffs challenge here limits each of these methods of control. It gives the General Assembly the power to appoint a majority of each commission’s voting members and gives the Governor only two or three appointees per commission.
In dissenting, Newby offered the following argument:
Unlike the Federal Constitution, the state constitution is not an express grant of power but a limitation on power. All power not expressly granted to the federal government or limited by the constitution resides in the people and is exercised through the General Assembly. Since our original Constitution of 1776, except for a short time by explicit limitation, the General Assembly has had the constitutional authority to provide for the filling of statutory executive positions it creates. As an exercise of the General Assembly’s lawmaking power, this appointment authority, both constitutionally prescribed and jurisprudentially recognized, does not implicate separation of powers because under our jurisprudence the authority to appoint the official has never been deemed the power to control the appointee. Our state’s constitutional text and history and this Court’s precedent demonstrate that when the legislature statutorily enables itself to select the official, it is simply filling the position and not controlling the appointee.8 Because the statutes at issue here are constitutional, I must respectfully dissent in part.