• The North Carolina State Constitution unequivocally declares, “The legislative, executive, and supreme judicial powers shall be forever separate and distinct from each other”
  • Despite that declaration, North Carolinians are increasingly governed, not by laws enacted by the legislature, but by executive orders signed by the governor and rules promulgated by administrative agencies
  • North Carolina’s Supreme Court can help restore the separation of powers by reviving the “nondelegation doctrine” and using it to impose strict limits on the extent to which the legislature can delegate its law-making power to the executive branch

The North Carolina State Constitution begins with a Declaration of Rights that states, “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” It then goes on to assign the legislative power to the General Assembly, the executive power to the governor and the other members of the Council of State, and the judicial power to the courts. Other state constitutions include similarly clear and unequivocal provisions regarding the separation of powers.

There’s no explicit declaration regarding the separation of powers in the U.S. Constitution. Nevertheless, the U.S. Supreme Court has always held that a separation of powers is clearly implied by the structure of the document and by the fact that it explicitly assigns the legislative, executive, and judicial powers respectively to Congress, the President, and the courts. By the middle decades of the 20th century, however, the court found it increasingly difficult to reconcile that holding with a rapidly expanding administrative state that most jurists thought was both beneficent and inevitable. In an effort to draw a line between acceptable delegations and delegations that went too far, the court developed what became known as the “nondelegation doctrine.” According to that doctrine a delegation is constitutional only if the enabling legislation provides “an intelligible principle to which the person or body authorized to [act] is directed to conform.”

As often happens, the courts in many states, including North Carolina, followed the U.S. Supreme Court’s example and adopted nondelegation doctrines of their own. The version adopted in North Carolina requires “adequate guiding standards to govern the exercise of the delegated powers.”

Despite all these declarations and doctrines, Americans today are primarily governed, not by statutes enacted by Congress and the various state legislatures, but by executive orders issued by the president and state executive officers, and by administrative rules promulgated by federal and state administrative agencies. Relying on vaguely worded enabling statutes, these executive branch officers and agencies make legally binding rules of conduct that they then go on to enforce. Worse still, disputes arising under those rules are often adjudicated — not in proper courts administered by the judicial branch — but in ersatz courts presided over by so-called “administrative law judges” (ALJs). In North Carolina these judges are at least “quasi-independent,” but in many states and at the federal level, ALJs actually work for the agencies being challenged in these disputes.

Here in North Carolina we saw a particularly egregious example of the abuse of delegated powers when Gov. Roy Cooper used a tenuous interpretation of the Emergency Management Act to impose extreme and long-lasting restrictions supposedly justified by Covid-19. Other recent examples are statutes making it a crime to violate rules promulgated by occupational licensing boards and ordinances decreed by municipal and county governments and metropolitan sewerage boards.

Given that a strict separation of powers is required by our founding documents at both the state and federal levels, one might well ask how any of that can have happened?

It happened because Congress and most state legislatures have been only too happy to dodge accountability by delegating away their legislative powers, and it happened because federal and state courts have been increasingly reluctant to enforce the nondelegation doctrine. Indeed, that reluctance was eventually formalized as part of the adoption of progressive judicial theory in the middle of the 20th century.

Part and parcel of that theory was a new doctrine called “judicial deference,” which holds that courts should simply presume the constitutionality of any legislation that isn’t “clearly irrational,” including legislation delegating power to the executive branch. Carrying the doctrine further, most courts now also defer to executive branch officers and agencies regarding the extent of their delegated powers and the meaning of the orders and rules they promulgate.

Recently, several justices on the U.S. Supreme Court have indicated that they are prepared to reconsider the doctrine of judicial deference, at least when it comes to agency-made law, and many commentators are hopeful that the nondelegation doctrine will be resurrected at the federal level. If and when that happens, there can be little doubt the state courts, including the courts of North Carolina, will eventually follow the U.S. Supreme Court’s example.

There’s no reason, however, why North Carolinians should have to wait for the U.S. Supreme Court to act. The General Assembly can act directly to rein in the power of the executive branch, and it has done so several times in recent years. It took several steps in that direction in 2021 when it amended the Emergency Management Act to rein in the emergency powers delegated to the governor and significantly restricted the extent to which occupational licensing boards and local authorities can create crimes.

These reforms notwithstanding, it’s unlikely the General Assembly will stop making vague delegations of power to the executive branch any time soon, and it’s even more unlikely that our executive officers and our administrative agencies will stop welcoming every opportunity to expand their power.

Last year, for example, Gov. Cooper signed an executive order committing the state to achieving “net-zero emissions … no later than 2050,” and instructing the Department of Transportation and the Department of Environmental Quality to “develop a North Carolina Clean Transportation Plan” that would, among other things, ensure that all medium- and heavy-duty vehicles operating in the state are “zero-emission vehicles.” As my colleague Jon Sanders has correctly observed, under North Carolina state law and under our constitution, “If Gov. Cooper wants … an ‘Advanced Clean Trucks Rule’ … he’ll have to persuade the General Assembly to go along.”

At the end of the day, restoring the separation of powers guaranteed by the state constitution will probably require the intervention of the N.C. Supreme Court. The supreme courts in eleven states have already taken a step in that direction by rejecting the doctrine of judicial deference as it applies to administrative agencies. In the most recent instance of this promising trend, last month the Ohio Supreme Court handed down an opinion saying:

We reaffirm today that it is the role of the judiciary … 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. …

Ohio’s system of separation of powers precludes any sort of mandatory deference to agency interpretations.

The N.C. Supreme Court should follow the Ohio Supreme Court’s example. At the first opportunity, the court should declare that it will no longer defer to the legislative and executive branches regarding the constitutionality and extent of delegated power. It should develop its own standard for determining when such delegations go “too far.” And once that revived version of the nondelegation doctrine is in place, it should apply it rigorously whenever a delegation of power is challenged.

If the court does all that, it will go a long way towards restoring the separation of powers guaranteed by the N.C. Constitution. And who knows? It might even provide an example for the U.S. Supreme Court as it wrestles with the problem of a bloated, unconstitutional administrative state.

For additional information see:

Emergency Powers Resource Page

Criminal Code Reform

The left’s long war on the Constitution

General Assembly passes measure to rein in a governor’s emergency powers

Sorry, California, Governor Cooper Has No Authority to Order a “Clean Trucks” Rule