Opinion: Daily Journal

Disputes shine spotlight on N.C. Constitution

The weekly “Front Row” political panel program on UNC-TV features a regular segment on “who’s up” and “who’s down” in state and national politics.

During a recent appearance, this panelist raised some eyebrows by assigning the “who’s up” label to John Dinan.

John Dinan? The Wake Forest University political scientist? He holds no office. Nor is he running for one. Why single him out for special attention?

The reason is linked to his area of academic expertise: state constitutions. Given the number of current N.C. political disputes that feature contrasting readings of the North Carolina Constitution, special knowledge of the state’s governing document is bound to come in handy throughout the next couple of years.

Dinan’s expertise isn’t unique, but his insights will prove useful as the rest of us attempt to make sense of various ongoing clashes involving all three branches of state government.

“We’re about to enter a year in which there are going to be a number of court proceedings — in fact, there have already been some court proceedings — on some of these matters,” Dinan told an audience of N.C. legislative staffers Feb. 23. He then proceeded to highlight the constitutional provisions that interest him most.

“You can just tell by the language — the powers given — the legislature not only comes first in the North Carolina Constitution [in Article II, following Article I’s Declaration of Rights], but it has long been the dominant branch in North Carolina government,” Dinan said. “And that comes through in all kinds of ways.”

Still, it’s Article III, dealing with executive power, that attracts the most interest from Dinan today. “We’ve already had some conflicts between the power of the legislature and the power of the executive, so folks are really going to be leafing through these constitutions,” he said. “Judges, in particular, are going to be leafing through these constitutions.”

Some debate focuses on Article III’s first section. It specifies that the “executive power of the State shall be vested in the Governor.” While that might sound like “boilerplate language” inserted before the “main event” of describing the governor’s duties, Dinan notes that the very notion of “executive power” can generate differences among competing political actors.

“Some people say there’s something about the nature of executive power that means that the governor has to be able to do certain things if he’s going to wield power effectively,” he said. “So a lot of people are going to be spending some time over the next year or so [asking] what exactly is the content of that executive power in a general sense.”

Also up for discussion in a current court battle is Article III, Section 5(8). It spells out the governor’s appointment power. Included is the requirement of the “advice and consent of a majority of the Senators” for the appointment of government “officers.”

“What can we say for certain about this, and what might be up for discussion?” Dinan asked. A series of court decisions clarified that this “advice and consent” provision did not apply to the rest of North Carolina’s elected Council of State, such as the secretary of state and attorney general.

“Any officers not provided for in the constitution can be subject to the advice and consent of a majority of the senators,” Dinan added. “That’s about as clear as we get in terms of constitutional matters.”

Dinan’s assessment, by the way, said nothing about whether it’s a good idea for senators to confirm gubernatorial appointments. That value judgment is distinct from the constitutional question.

Just because the Senate has not chosen to use that “advice and consent” power for previous governors, the power doesn’t disappear, Dinan said. “That would be like saying that the president of the United States has the veto power, and a president doesn’t use it for three decades, and then the president uses the veto power, so they say, ‘I’m sorry, you didn’t use that for a few years, so it’s taken away from you.’”

Dinan doesn’t believe that argument will hold up to scrutiny. The “advice and consent” provision “is about as clear as one gets when it comes to a constitutional question,” he said.

Political partisans spent many hours late last year focusing on Article IV, Section 6’s description of the N.C. Supreme Court. That section permits the General Assembly to add up to two new associate justices to the court. “It turns out that North Carolina is among about half of the state constitutions that leaves things open,” Dinan said. “In just the last two years, the state of Georgia and the state of Arizona had similar clauses and increased the sizes of their Supreme Court by two justices each.”

North Carolina legislators chose not to exercise that option in the wake of the 2016 election, but they are not alone in considering substantive changes to their high court’s composition.

Along with ongoing disputes, Dinan’s expertise could prove useful as legislators consider possible constitutional amendments. As he reminded his Feb. 23 audience, Article V, Section 6 already sets an upper limit on state income taxes. The current debate involves whether to lower that existing constitutional limit from 10 percent to 5.5 percent.

Most of us spend little time each day pondering the power of the N.C. Constitution. But the number of those who follow Dinan’s lead, by delving into the details, is bound to grow in the weeks and months ahead.

Mitch Kokai is senior political analyst for the John Locke Foundation.