Lt. Gov. Dan Forest has filed a lawsuit against Gov. Roy Cooper. The Republican Forest and the Democrat Cooper face each other in the 2020 gubernatorial election.
From the filing:
This action is about the rule of law. That the chief executive must follow the law is as old as the idea of the rule of law itself. The legal maxims rex legi subjectus est (the king is subject to the law) and lex non a rege est violanda (the law is not to be violated by the king) makes this principle absolutely clear. …
… The executive power of the governor is not unlimited and portions of the overall executive power may be vested in other executive officials as “prescribed by law.” …
… The North Carolina Emergency Management Act provides .. that the most expansive statewide powers of the Governor can only be exercised during a declared state of emergency “with the concurrence of the Council of State.” …
… [T]he Emergency Management Act is an exercise of the General Assembly’s authority to “prescribe by law” the powers and duties of the members of the Council of State, including the Lieutenant Governor, as the Emergency Management Act places the duty on the Council of State to consider carefully the exercise of the most expansive of the Governor’s emergency actions, and places the power to check the exercise of those powers with the Council of State by requiring concurrence in those actions.
Forest cites seven coronavirus-related executive orders Cooper issued as “shutdown orders” that didn’t get approval from the Council of State.
Forest also says the quarantine and isolation aspects of the orders should have fallen under the powers of state health director Dr. Mandy Cohen rather than the governor. But if the governor used the health director’s powers, he should be constrained by the law — which says any quarantine or isolation order “shall not exceed 30 days.” Extending such an order beyond 30 days requires the approval of a Superior Court judge, and Cooper hasn’t asked for that approval or gotten it, the filing says.
The lawsuit wants a judge to end the emergency orders and refuse to allow any new ones unless they receive the backing of a majority of the Council of State.
Carolina Journal will provide more information on the lawsuit as it develops.