The North Carolina Supreme Court today announced its decision in State of North Carolina v. Berger, No. 113A15. At issue was whether the General Assembly violated two provisions of the North Carolina Constitution by enacting legislation allowing it to appoint a majority of the voting members of several administrative commissions. Governor McCrory argued that by giving itself the power to appoint commission members, the legislature unconstitutionally usurped his appointment power and interfered with his duty to take care that the laws are faithfully executed. Put briefly by Chief Justice Mark Martin, writing for the majority, the two issues presented were:
(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 provisions challenged in this case violate the separation of powers clause in Article I, Section 6?
With respect to the appointments clause, the majority found that it places no restrictions on the General Assembly’s ability to appoint statutory officers. Based on a historical analysis of the origins of the clause, the Court found that “the appointments clause…authorizes the Governor to appoint all constitutional officers whose appointments are not otherwise provided for by the constitution.” Based on this understanding of the appointments clause, the Court found that it “does not prohibit the General Assembly from appointing statutory officers to administrative commissions.”
However, even if the appointments clause were not violated, it is possible that the General Assembly still could have abridged the separation of powers provisions of Article I Section 6. On this point, the Court ruled in favor of the Governor — meaning that Governor McCrory ultimately prevailed in his lawsuit — but declined to adopt a bright-line rule in doing so:
We cannot adopt a categorical rule that would resolve every separation of powers challenge to the legislative appointment of executive officers. Because each statutory scheme will vary the degree of control that legislative appointment provisions confer on the General Assembly, we must resolve each challenge by carefully examining its specific factual and legal context. While the General Assembly’s ability to appoint an officer obviously does not give it the power to control what that officer does, we must examine the degree of control that the challenged legislation allows the General Assembly to exert over the execution of the laws.
Using this approach, the Court found that the challenged appointments violated the doctrine of separation of powers, because they give the General Assembly the power to control how the laws are executed without any supervision by the Governor. In the words of the Court, “the separation of powers clause plainly and clearly does not allow the General Assembly to take this much control over the execution of the laws from the Governor and lodge it with itself.”
Justice Paul Newby concurred in part and dissented in part. He agreed with the majority’s finding that the challenged provisions did not violate the appointments clause. But he disagreed with the majority on the proper application of Article I Section 6, arguing that the Coal Ash Commission appointments are constitutional because the General Assembly’s authority to appoint members in no way allows it to control those appointees:
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.
Both the majority and Justice Newby’s dissenting opinions are worth reading for anyone who wants to enhance their understanding of North Carolina’s constitutional history.
In practical terms, the ruling means that the Governor will take back some level of authority that had been assumed by the legislature. In a state with one of the weakest executive branches, this is a big win for the administration. As Governor McCrory tweeted after the decision, his office and the legislature will have to work together in the coming weeks to implement the Court’s decision.