Restoring the Separation of Powers in North Carolina

• A strict separation of legislative, executive, and judicial power is guaranteed by both the North Carolina and the United States constitutions
• With the connivance of progressive jurists, the progressive left circumvented those guarantees in order to create an administrative state in which bureaucrats in the executive branch wield all three types of power
• There is a growing movement to restore the separation of powers, and North Carolina is well situated to join and even lead that movement

A strict separation of powers has always been fundamental to the American system of limited, constitutional government. Under that system, the power to make law is assigned to the legislative branch, the power to enforce the law is assigned to the executive branch, and the power to adjudicate disputes arising under the law is assigned to the judicial branch.

The North Carolina State Constitution, which was originally adopted in 1776, and the United States Constitution, which was ratified in 1788, have always guaranteed the separation of powers. The former declares that “the legislative, executive, and supreme judicial powers of government, ought to be forever separate and distinct from each other,” and the latter explicitly assigns the legislative, executive, and judicial powers to three separate and independent branches of government.

Despite those constitutional protections in North Carolina and throughout the country, most of the legally binding rules that govern Americans’ conduct consist not of statutes enacted by their elected representatives, but of executive orders and regulations written and enforced by administrative agencies.

How did that happen?

The short answer is that it happened because the intellectual, social, and political elite that dominated American politics throughout the 20th century wanted it to happen. Those self-styled “progressives” were determined to transform the American system of limited, constitutional government into a unified regulatory state in which wise and beneficent technocrats in the executive branch could exercise unlimited power over almost every aspect of Americans’ lives. The separation of powers and all the other checks and balances embodied in the state and federal constitutions stood in their way, but by the end of the century they had found a way to circumvent those constitutional provisions and achieve their goal.

The result of this “administrative deference” was that all three powers — legislative, executive, and judicial — were vested in a single branch of government.

Progressive legislators began the process of transformation by enacting laws that delegated their power to make legally enforceable rules to administrative agencies. That strategy would not have succeeded, however, without the connivance of progressive judges. Those judges ought to have carefully reviewed each delegation of legislative power to determine whether it violated any provisions of the relevant state and federal constitutions, including particularly provisions guaranteeing the separation of powers. 

Instead, they abdicated their role as impartial adjudicators and adopted a doctrine known as “legislative deference” under which legislative enactments are presumed to be constitutional unless they are clearly irrational or appear to violate a handful of rights regarded as “fundamental.” By allowing administrative agencies to acquire legislative as well as executive power without judicial review, legislative deference seriously eroded the separation of powers guaranteed by the U.S. Constitution and the constitutions of most states, including North Carolina’s.

Worse was to come, however.

With the rise of the administrative state, disputes inevitably arose over the meaning of the laws that delegated legislative power to administrative agencies. Disputes also arose about the meaning of the rules that the administrative agencies promulgated pursuant to those laws. As independent and equal branches of government, the courts should have evenhandedly adjudicated those disputes. Instead, however, the federal courts and most state courts began to defer to the agencies themselves regarding the meaning of both the delegating statutes and the administratively promulgated rules. The result of this “administrative deference” was that all three powers — legislative, executive, and judicial — were vested in a single branch of government. That clearly violates the separation of powers guaranteed by the relevant constitutional provisions. It also violates the right to a fair trial. A tribunal that defers to one of the parties to a dispute can hardly be said to be impartial.

Fortunately, a movement to reform judicial deference doctrine is gaining momentum at both the state and federal levels:

• Nine state supreme courts have issued opinions restricting or eliminating administrative deference. In the most recent of these, the Ohio Supreme Court held, “It is the role of the judiciary, not administrative agencies to make the ultimate determination about what the law means. Thus, the judicial branch is never required to defer to an agency’s interpretation of the law.”

• In 2018, Florida’s voters ratified a constitutional amendment that states, “In interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency’s interpretation of such statute or rule.”

• Also in 2018, Arizona enacted a statute that states, “In a proceeding brought by or against a regulated party, the court shall decide all questions of law, including the interpretation of a constitutional or statutory provision or a rule adopted by an agency, without deference to any previous determination that may have been made on the question by the agency.”

• Under a Wisconsin statute enacted in 2022, “No agency may seek deference in any proceeding based on the agency’s interpretation of any law.”

• And earlier this year, in Loper Bright v. Raimondo, the United States Supreme Court held that courts must “exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law.”

It is not too late for North Carolina to join or even lead the movement to restore the separation of powers by eliminating or curtailing judicial deference. In Mitchell v. UNC Bd. of Governors, the North Carolina Supreme Court has an opportunity to reform administrative deference doctrine, and it has an opportunity to reform legislative deference doctrine in Singleton v. NC DHHS. And if the court fails to take advantage of either opportunity, the North Carolina General Assembly could follow the example of other state legislatures and eliminate or curtail judicial deference by enacting an appropriate statute or by placing an appropriate constitutional amendment before the voters.