Throughout his gubernatorial term, Roy Cooper has sought vastly to expand the power of his office at the expense of other statewide-elected executives, the legislative branch, local governments, and private households and businesses. Although a court did strike down on First Amendment grounds his attempt to shut down churches while keeping North Carolina’s shopping malls open, Cooper has gotten his way most of the time.
Perhaps you have been untroubled by the governor’s behavior. All politicians try to maximize their power, you might say, so what’s the big deal? Or you might like Cooper and support his policies on COVID-19 and other matters.
But I urge you to set aside your feelings about the particular personalities and issues in dispute and think about the long-term health of constitutional governance in North Carolina. It is dependent on a clear separation of powers and a system of checks and balances among the various branches and levels of governmental authority.
The General Assembly institutes public policy in our state by making laws, enacting budgets, and authorizing other governmental entities — administrative departments, regulatory agencies, local governments, etc. — to carry out functions specified by the legislature.
In North Carolina, our executive branch is multi-headed, comprising 10 elected officials who form the Council of State. Most of their specific powers are granted by the General Assembly, not by the state constitution. North Carolina’s governor is the most important counterexample, but even here his enumerated powers are relatively few.
Although Roy Cooper spent decades in other roles, first in the General Assembly and then 16 years as attorney general, he has spent the past four years trying to expand gubernatorial power at the expense of other offices.
This may surprise you, but at first I was sympathetic. Cooper’s predecessor, Republican Gov. Pat McCrory, had also battled the GOP-controlled legislature over the separation of powers, and won a key court case that ensured meaningful executive control over regulatory boards and commissions by having most board members appointed by the governor, not the legislature.
Moreover, shortly after Cooper’s narrow victory over McCrory in 2016, the General Assembly had unwisely stripped the governor of additional powers. The balance was out of whack. His initial response was understandable.
Unfortunately, Cooper didn’t try to re-establish an equilibrium. He sought gubernatorial supremacy. In the case of COVID-19, for example, he initially requested concurrence from the rest of the Council of State when issuing sweeping regulations on North Carolina businesses and households, as the relevant emergency-management statutes required. Then, when it seemed other executives might disagree with his orders, Cooper stopped asking permission — first claiming, absurdly, that his pre-existing statutory authority to quarantine sick people gave him the power to quarantine everybody else, and then citing a statute giving the state the power to intervene when local governments are overwhelmed by hurricanes and the like.
Lt. Gov. Dan Forest, who is also Cooper’s opponent for re-election this year, sued the governor and lost at the trial-court level. Apparently Forest thought an appeal, ultimately to a heavily Democratic state Supreme Court, would be fruitless.
But there is more cause for optimism about stopping Cooper’s latest power grab, a lawsuit the governor filed in late August to seize control of the Rules Review Commission. The legislature created the RRC and appoints its commissioners. Its function is to ensure that any rules issued by an executive agency are consistent with legislative intent — a proper standard, since executive agencies have no authority to issue rules that was not granted to them by the General Assembly.
The executive branch has attacked it before, arguing that the legislature cannot delegate its authority to the RRC. The state Supreme Court, mostly recently in 2018, has affirmed the RRC’s constitutionality. Here’s hoping it rejects the governor’s new gambit.
Remember: Roy Cooper won’t be in office forever. Whatever power he seizes today may be exercised tomorrow by a very different governor. All of us, regardless of party or ideology, should defend the separation and balance of powers.