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A crumbling republic? The rise, fall of separation of powers in N.C.

CJ file photo
CJ file photo

North Carolina has been shut down for six months, 30 weeks, more than 200 days.  

The N.C. Constitution created a feeble executive branch, and its governor remained among the weakest in the nation. Until now.  

When the pandemic hit, Gov. Roy Cooper seized control of the economy, selecting essential businesses and shuttering the rest. His orders unleashed widespread economic devastation. Up to 40% of targeted businesses may not survive the virus and the shutdowns, some economists predict 

The governor’s ability to levy and extend lockdowns remains unchecked. The legislature has passed a battery of reopening bills, with little effect.  

Any attempts to limit Cooper’s emergency powers have collapsed. Reopening bills sagged under opposition from Democrats, who blocked veto overrides “because it takes power away from the governor.” A bill checking Cooper’s emergency powers sank for the same reasons. Legal challenges mostly met a similar fate.  

Under current court interpretations of state law, Cooper doesn’t need Council of State concurrence to restrict the economy. The courts ruled the Council of State has no teeth during an emergency. Republican lawmakers tried to require governors to get approval from the elected 10-member Council of State for shutdowns. But Cooper vetoed the bill.  

Here’s a look at key developments in the separation-of-powers debate during the five decades since North Carolina ratified its most recent constitution:  

1971:  After amending the post-Civil War constitution nearly 70 times over the course of a century, North Carolina ratifies a new constitution. The new governing document maintained a strong legislative branch. But the new constitution also consolidates the governor’s duties and powers. Lawmakers delegate part of their legislative power to the executive branch, where agencies interpret laws to make rules and regulations.  

1977:  The legislature creates a committee to oversee the bureaucracy’s administrative rulemaking. But it’s limited to simple oversight. 

1983:  Gov. Jim Hunt proposes a Governor’s Administrative Rules Review Commission. Doubts about its constitutionality nix his proposal. The legislature debates the need for stronger legislative oversight on agency rulemaking.  

1986:  Lawmakers claw back some control over how executive agencies interpret their laws. They create the Rules Review Commission. It’s supposed to ensure bureaucrats in the executive branch can’t wield legislative power without lawmakers’ consent. But it still lacks teeth. It can only object to rules, with no effect whatsoever. 

1995:  Legislative control over bureaucratic rulemaking gets a boost. Lawmakers strengthen the Rules Review Commission. It gains the ability to veto administrative rules, letting members slap down regulations that write law instead of interpreting it. This is a major victory for the legislature — and for the traditional interpretation of the balance of powers. The General Assembly regains some of the legislative authority it delegated to the executive branch.  

1996:  Pushback against the RRC is already under way. Former commissioner Harry Payne writes that “the members of the Rules Review Commission wield more power than most elected officials.” Agencies complain about the check on their power. They say the RRC slows the process of the administrative state and the passage of new rules. 

1996:  North Carolina becomes the last state to give its governor the power to veto legislation.  

1998:  Democrats strip away much of the Republican lieutenant governor’s power, giving it to the Senate president pro tem.  

2013:  Lawmakers pass a bill to prevent the governor from sidestepping the legislature to expand Medicaid.  

Gov. Pat McCrory, outlining his 2016-17 budget. (CJ file photo)

2016:  Republican Gov. Pat McCrory wins a lawsuit and gains majority control over appointments to boards with executive branch authority.  

2016:  Cooper is elected in November, and Republican lawmakers scramble to weaken the executive branch. Cooper loses his ability to appoint Cabinet secretaries without legislative approval. Lawmakers strip his appointments to UNC campus Boards of Trustees, as well as state and county elections boards. The number of state employees the governor can hire and fire without consequence plunges from 1,500 to 425. Cooper sues. 

2016:  Republicans lose their majority on the N.C. Supreme Court.  

January 2017:  Cooper tries to expand Medicaid through executive action, without legislative approval. He argues it is “the core executive authority of the governor to accept federal funds to look out for the health of the people.” Republican lawmakers sue, blasting his move as illegal. The outgoing Obama administration promises to process his proposal as “expeditiously as possible.” But a federal judge slaps a restraining order on Cooper’s attempt, and the delay sinks unilateral expansion.  

March 17, 2017:  A three-judge panel refuses limits on Cooper’s power. It shoots down the legislature’s overhaul of the state and county boards of elections and protects some of the governor’s appointments. But it allows the Senate to approve the governor’s Cabinet appointments. 

March 23, 2017:  The General Assembly makes Superior Court and District Court judicial elections partisan.  

April 11, 2017:  Lawmakers trim the state Court of Appeals from 15 to 12 members. They allow more cases to be appealed to the state Supreme Court and require the next three vacancies of the court to remain empty. Cooper sues.  

June 28, 2017:  The legislature limits Cooper’s ability to hire private lawyers to overturn legislation. It also removes the state Industrial Commission from Cooper’s control. 

Aug. 8, 2017:  Cooper sues over the budget. He says he doesn’t want the General Assembly to dictate how he writes budget proposals.  

Aug. 30, 2017:  The legislature whittles away more of Cooper’s appointments.  

2017:  Legislative authority over the executive branch reaches its zenith. The government is split between parties, and Republican lawmakers can ignore many of Cooper’s policy priorities. But they remain vulnerable to the courts.  

January 2018:  Cooper wins his suit to control the State Board of Elections. This skews the balance of power toward the executive. 

November 2018:  Democrats break Republican veto-proof supermajorities in both the House and Senate, boosting the power of the executive branch. Cooper’s vetoes gain some bite.  

March 2019:  Democrats gain a 6-1 majority on the N.C. Supreme Court as Cooper names the newest chief justice and fills a vacancy. 

Fall 2019:  Cooper vetoes the budget over Medicaid expansion. Republican lawmakers fail to break the gridlock. They send Cooper a series of mini-budgets to keep state government operating. He vetoes some, including teacher pay raises and Medicaid transformation, and signs others.  

January 2020:  Cooper breaks records by issuing 42 vetoes, more than the combined totals of three former governors over the past 16 years. 

March 10:  Cooper declares a state of emergency for COVID-19.  

March 12:  Cooper’s administration waives state-imposed restrictions on the supply of hospital beds. 

March 16:  Cooper closes K-12 schools. He cancels gatherings of 100 or more people.  

The Carolina Ale House at 4512 Falls of Neuse Road in Raleigh was one of hundreds of restaurants which had to halt dining service with little warning at 5 p.m. on St. Patrick’s Day. (CJ photo by Don Carrington)

March 17:  Cooper closes restaurants, bars, and clubs. Lt. Gov. Dan Forest, Cooper’s 2020 election opponent, argues the lockdown is unconstitutional, saying the Council of State voted against banning in-person dining at private clubs and restaurants. Forest says Cooper “will devastate our economy, shutter many small businesses, and leave many people unemployed, especially in the rural areas of our state where food supply is already critical.” 

March 23:  Cooper closes gyms, hair and nail salons, spas, health clubs, and movie theaters. He prohibits mass gatherings of 50 or more people, including church services. 

March 27:  Cooper shuts down the state, declaring a stay-at-home order. Residents must remain at home unless getting food, receiving medical services, volunteering, worshiping, exercising outdoors, or working at an essential business. He bans gatherings of more than 10 people. Prominent Republican lawmakers question Cooper’s data. North Carolina is rocked by 300,000 new unemployment claims in just 11 days.  

April 8:  Cooper sets new rules for nursing homes. After limiting visitors, he requires masks, screenings, isolation, and COVID-19 case reporting to the state. 

April 8:  Cooper relaxes certificate-of-need laws that choke the supply of health care in North Carolina. 

April 9:  Cooper restricts the number of shoppers allowed inside stores. 

April 13:  Cooper’s administration decides to release some nonviolent inmates.  

April 14:  A new group called Reopen NC protests Cooper’s orders. Police declare the protest a violation of the mass gathering ban and ask protesters to socially distance. Several protesters are arrested. The Raleigh Police Department calls protesting a “nonessential activity.” Two Republican senators slam Cooper for a “grave overstep in your authority.” 

Reopen NC protesters march around the Old Capitol Building April 21, 2020. (CJ photo by Rick Henderson)

April 21:  Cooper expands eligibility for unemployment benefits with another executive order.  

May 5:  Cooper moves the state into Phase One of reopening. He removes the distinction between essential and nonessential businesses. Retail businesses can open at 50% capacity. State parks and child care facilities reopen. Restaurants remain closed. Worship services must take place outside, unless “impossible.” 

May 12:  Cooper relaxes oversight measures over Medicaid eligibility.  

May 14:  Churches sue Cooper. 

May 15:  The state asks nursing homes to begin regular, proactive testing for the coronavirus. 

May 16:  Cooper can’t prevent people from worshiping indoors. U.S. District Judge James Dever prohibits the enforcement of Cooper’s order. Sen. Warren Daniel, R-Burke, says that “Cooper cannot treat retailers and ABC stores one way and houses of worship another. Nor can he allow one type of worship service to proceed while prohibiting another. Hopefully, this decision will put some guardrails on what has been unchecked executive power.” 

May 20:  Cooper moves North Carolina into “Safer at Home Phase Two.” This phase reopens restaurants, salons, pools, and tattoo parlors. But gyms, yoga studios, and public playgrounds remain closed. Even businesses that made the cut face strict capacity restrictions. 

May 21:  The State Board of Elections seeks emergency powers and is unanimously shot down by the N.C. Rules Review Commission. The elections board asks for the authority to change hearings for candidate challenges and election protest appeals. It requests the ability to change election dates, as well as deadlines for voter registration and accepting absentee by-mail ballots. Commissioner Tommy Tucker says that he is “concerned this is an end run around the public, the General Assembly, and the courts.” Republican lawmakers slam the agency for a “back-door attempt to rewrite election laws.” 

Adobe Stock Photo

May 27:  Gyms sue Cooper.  

May 28:  The General Assembly votes to reopen private bars, clubs, breweries, wineries, and distilleries. Republicans try to expand outdoor seating in restaurants and brewpubs. During the debate, Rep. Michael Speciale, R-Craven, argues that “governors don’t make laws. … We’ve got people whose livelihoods are dependent upon us doing something. The governor hasn’t done anything.” 

June 1: Victory Fitness sues Cooper after its owner is charged with a Class 2 misdemeanor for reopening his gym. Cooper marches with protesters outside the Executive Mansion, his mask — at one point — dangling from an ear. 

June 4:  The N.C. Bar and Tavern Association sues Cooper on behalf of 185 businesses. Zack Medford, president of the N.C. Bar and Tavern Association, argues that Cooper “is effectively signing a death warrant for 1,063 bars across North Carolina while offering zero relief to the small-business owners or their employees.” 

June 5:  Cooper vetoes the bill to reopen bars and expand restaurants’ outdoor seating. Sen. Wiley Nickel, D-Wake, says he will oppose a veto override on House Bill 536 “because it takes power away from the governor.” 

June 11:  ACE Speedway loses in court against Cooper’s shutdowns.  

June 11:  The General Assembly sends Cooper a rewritten bill to reopen gyms and bars and expand seating in restaurants.  

June 16:  Rural towns plead for relief from his executive orders on utility nonpayments. They say his orders are driving them into bankruptcy. Elizabeth City eventually announces its plan to defy the governor, and he grants it a waiver hours later. The town of La Grange sues Cooper. The courts deny the town’s request for immediate relief. State Treasurer Dale Folwell pleads for relief for local utilities in a Council of State meeting but is refused. Cooper’s order expires at the end of July.  

June 19:  State Health and Human Services Secretary Mandy Cohen says that the legislature’s No Patient Left Alone Act would violate federal law.  

June 19:  Cooper vetoes the legislature’s second attempt to reopen gyms and bars. Sen. Rick Gunn, R-Alamance, slams Cooper, asking “why did he walk with protesters without a mask on, but prohibits everyday citizens from using an elliptical machine at a gym? Why is it safe to have a drink outside at a restaurant, but it’s dangerous to have a drink outside at a bar? Cooper needs to release the science behind these apparent contradictions.” 

June 20:  Cooper orders the removal of Confederate monuments from the grounds of the State Capitol. 

June 24:  Lawmakers fail to override Cooper’s veto of the reopening bill. 

June 26:  Cooper’s mask mandate kicks into effect. His order makes businesses responsible for enforcement.  

June 26:  Republican lawmakers pass a bill to check the governor’s ability to shut down the economy unilaterally. It would require Cooper to get approval from a majority of the 10-member Council of State before closing businesses or restricting the economy. They accuse Cooper of trampling checks and balances. Rep. Destin Hall, R-Caldwell, says “the absolute power Gov. Cooper is using is not compatible with representative democracy.” 

June 26:  A court sides with Cooper and against the lawsuit to reopen bars.  

June 26:  Cooper’s Division of Employment Security expands access to unemployment benefits with an emergency rule.  

July 1:  Forest sues Cooper, claiming an abuse of emergency powers. Forest accuses Cooper of unlawfully acting without concurrence from the Council of State. His lawsuit argues that the Council of State acts as a check so that “executive power of the governor is not unlimited.” 

July 2:  Cooper vetoes another bill to reopen gyms.  

Elizabeth Robinson, owner of Fairwood Lanes in Roanoke Rapids, helps at the bar during a final night of bowling on July 18. (CJ photo by Kari Travis)

July 14:  The N.C. Supreme Court shuts bowling alleys back down. Bowling alleys had won a victory in their lawsuit against Cooper when Judge James Gale allowed them to reopen. But their success lasted only one week. The Supreme Court overturned Gale’s original ruling, and ordered bowling alleys to close again while it reviewed Cooper’s appeal. 

July 14:  Cooper allows schools to begin reopening with a mix of virtual and in-person learning. But he doesn’t allow schools the option to go for a full in-person setting. Districts don’t have the flexibility to craft local plans. 

July 24:  Legislative leaders question how Cooper’s administration interpreted the law they passed on unemployment benefits. Lawmakers expanded unemployment benefits to four narrow groups — people diagnosed or officially quarantined, or workers who lost hours or employers because of the virus.  

The Division of Employment Security then opened benefits to people who “reasonably believe there is a valid degree of risk to the claimant’s health and safety due to a significant risk” of infection due to an employer’s failure to comply with federal or state safety guidelines. It included people who refuse work to comply with the governor’s orders, high-risk individuals over the age of 65, and parents who can’t work because of canceled schools.  

The John Locke Foundation challenges DES’ expansion of unemployment benefits. The agency fails to file the paperwork to go before the Rules Review Commission in August, letting the emergency rule expire.  

July 28:  Cooper bans the sale of alcohol after 11 p.m. 

Aug. 4:  Judge James Gale suggests the N.C. Supreme Court will decide the outcome of Forest’s lawsuit against Cooper: “My guess is, whatever I do, I might just be teeing it up for seven other people.” 

Gov. Roy Cooper (with state health Secretary Dr. Mandy Cohen, background) at a July 2020 COVID-19 briefing. (Pool photo)

Aug. 5:  Cooper extends Phase Two restrictions. One of the state’s leading economists warns that the economy could take two to three years to recover. As many as 40% of businesses targeted with restrictions won’t survive, said Michael Walden, N.C. State University economist and member of the governor’s N.C. Economic Recovery Group. 

Aug. 11:  Cooper wins against Forest in Superior Court. Forest later drops his lawsuit.  

Aug. 14:  The N.C. State Board of Education freezes enrollment at the state’s two virtual charter academies. It rejects a unanimous recommendation from the state’s Charter School Advisory Board to let 3,800 more students enroll. The education board’s vote was 7-4, with Cooper’s appointees voting along partisan lines.  

Aug. 27:  Cooper proposes a $25 billion budget to expand Medicaid and unemployment benefits, grant teacher bonuses, and slash the Opportunity Scholarship program. He wants to draw down $5 billion in new debt, $1 billion of which won’t need taxpayer approval. The GOP calls it a “spend now, pray later” plan.  

Aug. 28:  Cooper sues to disable a powerful check on how the executive branch can use the legislative authority delegated by the General Assembly. His lawsuit would cripple the legislature’s veto power over how agencies interpret its laws. Cooper demands a majority of appointments to the Rules Review Commission. A ruling in Cooper’s favor would permanently shift the balance of powers, experts say. The state Supreme Court will eventually decide the issue. Sen. Ralph Hise, R-Mitchell, calls it “another power grab, plain and simple.” 

Sept. 1:  Cooper opens gyms to 30% or less of their capacity. He moves the state into Phase 2.5, lifting shutdowns on indoor fitness centers, playgrounds, and museums. But bars and movie theaters remain closed. And some businesses say they cannot survive his capacity restrictions.  

Sept. 16:  GOP leaders call on Cooper to reopen schools. Politicians and parents argue that virtual learning is leaving students behind, especially kids with disabilities.  

Sept. 17:  Cooper gives elementary students the chance to learn in the classroom full time. He allows local school districts to choose to provide in-person learning full time, starting in October.  

November 2020:  Three of the seven N.C. Supreme Court justices are up for election. So is Cooper.