Opinion: Daily Journal

Governor Cooper’s separation anxiety

The governor's recent Atlantic Coast Pipeline deal makes a mockery of separation of powers — the justification behind many of his legal fights with the legislature

Gov. Roy Cooper, at a June news conference at the Executive Mansion. (CJ photo by Don Carrington)
Gov. Roy Cooper, at a June news conference at the Executive Mansion. (CJ photo by Don Carrington)

Democratic Gov. Roy Cooper spent much of his first 13 months in office defending the venerated principle of separation of powers. At the end of January, however, by signing a $57.8 million deal connected with the Atlantic Coast Pipeline, Cooper basically proved he’s been acting like a hypocrite all along.

Cooper has sued the Republican-dominated General Assembly over laws it passed in December 2016 limiting Cooper’s power before he took office. The various lawsuits went after legislative moves:

  • merging the state elections and ethics boards, previously controlled by the governor’s political party, and creating a single new body with equal Republican and Democratic members;
  • requiring the governor’s Cabinet-level appointees to gain Senate confirmation;
  • slashing the number of political jobs the governor controlled from 1,500 to 425;
  • reducing the size of the state Court of Appeals from 15 members to 12 (as — coincidentally? — three Republican Appeals Court judges were nearing retirement);
  • giving outgoing Gov. Pat McCrory, a Republican, the ability to appoint members to state commissions whose terms would have expired after Cooper took office, and;
  • shifting oversight of several powerful state boards and commissions from the executive branch to the legislature.

Cooper even asked courts to throw out portions of the state budget he didn’t like.

The governor won a few and lost a few, or chose not to appeal when he was on the losing side in a lower court. In each instance, his legal team based its arguments on Article I, Section 6 of the N.C. Constitution:

The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.

In other words, as we should have learned in civics class (or whatever schools call them these days), the legislature enacts laws; the governor and other executive branch officials implement them; and the courts resolve any disputes.

Separation of powers is an important principle. (John Locke was one of the first political theorists to articulate it concisely.) It keeps one group of government officials from gaining too much power. Too bad the governor doesn’t really believe in it.

Cooper suggested this a few times last year. He foolishly tried to expand Medicaid coverage under the Affordable Care Act unilaterally, without legislative approval, before President Obama left office. Federal officials in the Trump administration slapped that down.

He also tried to force the General Assembly into a two-week June special session on redistricting. Lawmakers ignored him, and rightly so. The governor has no constitutional role in legislative or congressional redistricting, and he can’t say how long an extra session will last and what laws it must pass. Besides, lawmakers were in a regular session when he made that call and had no reason to adjourn.

The fights have been over which powers reside in each branch. The General Assembly has relied on the plain language of Article III, Section 5 of the Constitution. It says the governor must reside in the Executive Mansion; tell the General Assembly his priorities; propose a balanced budget; and “take care that the laws be faithfully executed.”

He also serves as commander in chief of “military forces of the state.” He can offer clemency to criminals, call special legislative sessions, appoint members of executive branch departments and commissions, and veto bills.

That’s about it. He doesn’t have the ability to spend money unless the General Assembly says so.

The governor seems to have a different idea, as the Atlantic Coast Pipeline deal demonstrates. Under the Mitigation Project Memorandum of Understanding signed by one of the governor’s lawyers and an official of the pipeline operating company, the ACP will provide $57.8 million to an escrow fund managed by the governor.

Half of the money’s due when the Federal Energy Regulatory Commission gives the pipeline its final OK. The rest is due when the pipeline starts operating.

The money — all controlled by the governor — will pay to “mitigate” possible environmental damage from the pipeline, fund economic development in the counties where the pipeline will run, and pay for renewable energy projects in those counties.

The General Assembly will have no role in spending this money, as Cooper’s spokesman Ford Porter made clear to WRAL News.

Lawmakers surely will have something to say about that. It’s especially the case after the legislature’s nonpartisan permanent staff asked the (executive branch) Office of State Management and Budget to explain how the fund was negotiated, who will get the money, and whether it was legal to make the deal in the first place.

As former state Supreme Court Justice Bob Orr told Carolina Journal, if the money belongs to the state, it should go the treasury and be dealt with during normal budget proceedings — which are controlled by the General Assembly.

The budget office’s response? The fund is a “voluntary contribution” to the escrow account, and a separate board of directors will decide how to spend the money.

The deal stinks, and scrutiny of it only will intensify. Perhaps the governor will get enough heat that he walks away from the arrangement entirely. It’s not a tough call. All he needs to do is dust off his copy of the state constitution, and take it seriously, even when it’s politically inconvenient.

Rick Henderson is editor-in-chief of Carolina Journal. Follow him on Twitter @deregulator.



  • ProudlyUnaffiliated

    Wondering how many other slush funds Cooper is building or already has in place? This guy needs to go.