According to a federal court filing, Governor Roy Cooper, with assistance from Attorney General Josh Stein and the usual left-wing legal groups, will use federal court to essentially perform an unconstitutional line item veto of House Bill 142. This is the bill that repealed House Bill 2 while including bathroom and shower facilities privacy provisions.
HB 142 was a compromise bill worked out between Cooper and the legislature and allowed Cooper to claim credit for accomplishing one of his primary campaign pledges; repealing HB 2. However, the section containing the privacy provisions angered his most radical base and after he signed the bill protesters showed up outside the executive mansion.
After HB 142 passed Cooper had two choices; sign or veto the bill. He signed the bill! The North Carolina State Constitution does not allow a governor to exercise a line item veto to eliminate parts of a law he disagrees with. While he expressed reservations about section 2 of the law, he did not say it was unconstitutional. In a statement announcing the settlement Cooper said, “For too many reasons, it is not in our state’s best interest to remain in drawn-out court battles that still linger because of HB2.”
The consent order Cooper and Attorney General Stein are submitting to the federal court will effectively be a line item veto of Section 2. It is also a textbook example of one of the favorite tactics of left-wing legal groups – “Sue and Settle.” Mostly used with regulatory agencies, “Sue and Settle” is where friendly bureaucrats –in this case Cooper and Stein — use a court case, brought by outside groups (in this case ACLU-NC) to reach a conclusion without having to go through the normal legislative or regulatory process. All that is required is to get a judge to agree.
What is the legislature to do about an out of control Attorney General and Governor? This is not the first time they have used court cases brought against the state to achieve a result that was the opposite of what the elected representatives of the people approved. In February 2017 Stein and Cooper withdrew from defending the state voter ID law before the federal courts. This handed the challengers a victory.
How does the legislature stop this type of activity in the future? There is only one course of political action that is foolproof – impeachment.