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Separation of Powers in North Carolina State Government

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There have been some significant recent developments in two lawsuits involving the separation of powers, both of which were filed in Wake County Superior Court last November.

In NC State Board of Education v. NC Rules Review Commission, the Board of Education sought a judicial determination that, "The North Carolina Constitution precludes the RRC, a statutorily-created administrative agency, from exercising authority over the Board, a constitutional body." Superior Court Judge Paul G. Gessner recently granted the Board of Education’s motion for summary judgment, thereby exempting the Board from the RRC’s jurisdiction, at least pending appeal. 

As WRAL explained:

"The State Board of Education is unique because it’s a constitutionally created body," said Robert Orr, a former state Supreme Court justice who served as counsel to the Board of Education.

Often when the General Assembly passes a law, a state agency must adopt rules to carry out that law’s intent. So, for example, lawmakers might empower an environmental agency to curb a certain type of pollution, but leave it up to the agency to adopt specific standards to carry out that law. In the case of almost all state agencies, the rules that they adopt must be signed off by the Rules Review Commission, an appointed panel designed to make sure state agencies don’t overstep their authority.

If Gessner’s ruling holds, the State Board of Education would be the one state agency with a blanket exemption from that review process.

It was not immediately clear whether the Attorney General’s Office, which represented the Rules Review Commission, would appeal Gessner’s order.

In McCrory v. Berger, the Governor challenged the General Assembly’s right to appoint members to the Coal Ash Management Commission and asked the court to declare that, "Statutes authorizing the General Assembly to appoint members of executive branch boards and commissions … are unconstitutional on their face." The NC Supreme Court recently heard arguments in the case, which had come to it on appeal from a Superior Court ruling in favor of the Governor. At the time of the ruling, WRAL reported a statement by Governor McCrory:

This historic and unanimous ruling respects and restores the separation of powers…. I’m proud to stand up for our Constitution and the citizens of North Carolina. I’d like to thank former Governors Jim Martin and Jim Hunt for joining me in this effort to protect the principles of our state.

And also a joint statement by Senate President Pro Tem Phil Berger and House Speaker Tim Moore:

The trial court’s new interpretation of the constitution represents a dramatic shift in the historical constitutional balance between the three branches of government, with implications reaching far beyond the three independent boards named in the lawsuit.

And it noted that, if the Governor wins on appeal, it could have a profound impact on how government is run in the state:

McCrory said he is still reviewing the ruling and its impact on state government. If it were to stand, the decision would require at least some reshuffling of two high-profile commissions.

Lawmakers appoint members to dozens of state boards and commissions, and Monday’s ruling has the potential for sweeping consequences in state government.

NC Voucher Ruling Elicits Commentary

As my colleague Terry Stoops has already reported, last week a majority of the NC Supreme Court upheld the Opportunity Scholarship Program, which provides vouchers to low-income families. Writing at LibertyLawSite.org, John O. McGinnis has some harsh words to say about the dissent:

What was remarkable in my view was that the dissenters dismissed the capacity of parental choice to promote education accountability and indeed excellence. Unlike the public school system, a voucher program allows parents to choose in an educational marketplace what schools their children will attend.  The dissent conceded that, "it may be true" that "parents will not send their children to schools that do not provide a solid education," but nevertheless baldy stated that marketplace standards cannot show that the voucher program is justified by its public purposes.

Why ever not? Unless the dissenters are willing to dispute the value of parental choice, which they do not, the legislature certainly is within its rights in claiming that parents can likely choose the school that will best serve their own children’s needs. Indeed, given that parents are in no way required to take up the vouchers offered, they can still choose to send their children to government schools if they believe they are better for their children.

The dissent in the North Carolina voucher case is a paradigm example of progressivism’s rejection of a civic order generated by mediating institutions like families and private schools in favor of a top down social order dominated by government….

Vouchers for education advance a far more spontaneous order than direct government control of schools.  The North Carolina decision is thus a great victory for liberty. May it embolden voucher proponents in other states.

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Jon Guze is Director of Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School in… ...

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