There’s no expiration date for the separation of powers in government.
If a power belongs to the executive branch, the executive faces no obligation to use it or lose it. The same holds true for powers allotted to the legislative and judicial branches.
When one branch chooses to use its legitimate powers in ways that displease the other branches, those competing branches cannot step in and take powers away.
That’s why one common argument in North Carolina’s ongoing Leandro school funding lawsuit should fall flat.
Lawyers representing both the plaintiffs in the case and the State Board of Education seem to think that the clock has run out for the N.C. General Assembly’s power of the purse.
Critics complain that the legislature has yet to comply with the dictates of a 2004 N.C. Supreme Court ruling in Leandro. They support a trial judge’s November 2021 decision to bypass the General Assembly. Judge David Lee ordered state officials to ignore the legislature and transfer money out of the state treasury to pay for portions of a court-sanctioned Leandro plan.
“The trial court — acting with remarkable judicial restraint — afforded the State nearly unfettered discretion for almost two decades to develop its chosen Leandro remedial plan,” wrote attorney Melanie Black Dubis in a July 1 brief to the state Supreme Court. “The trial court went to extraordinary lengths in granting the political branches of government time, deference, and opportunity to use their informed judgment as to the ‘nuts and bolts’ of the remedy.”
“In the intervening 18 years, an entirely new generation of North Carolina school children, especially those at-risk and socioeconomically disadvantaged, were denied a fundamental constitutional right,” Dubis added.
N.C. Senior Deputy Attorney General Amar Majmundar also emphasizes the passage of time in the Leandro case. “Following two decades of deference to the legislative and executive branches to develop a remedy for an ongoing violation of the State’s constitutional duty to provide all students a sound basic education, was the trial court correct to order the relevant state actors to take measures to ensure compliance with our State’s Constitution, including ordering them to use available state funds in that effort?” Majmundar asked the state Supreme Court in his own July 1 brief.
Both Dubis and Majmundar imply that the political branches’ alleged inaction carries special significance after a certain period of time. “Two decades of deference,” they suggest, empower a judge to assume a legislative role.
Recently retired State Controller Linda Combs didn’t buy that argument. Targeted directly by Lee’s money transfer order, Combs sought relief from the N.C. Court of Appeals. She argued that she would violate her constitutional oath — and commit an impeachable offense — if she moved money from the state’s coffers without legislative authorization.
The Appeals Court agreed. “Simply put, the trial court’s conclusion that it may order [Combs] to pay unappropriated funds from the State Treasury is constitutionally impermissible and beyond the power of the trial court,” Judges Chris Dillon and Jefferson Griffin wrote.
Appellate judges warned that Lee’s order could open the door to other court-mandated state government spending. “[T]he trial court’s reasoning would result in a host of ongoing constitutional appropriations, enforceable through court order, that would devastate the clear separation of powers between the Legislative and Judicial branches and threaten to wreck the carefully crafted checks and balances that are the genius of our system of government,” Dillon and Griffin wrote.
Those two judges aren’t alone. The state Supreme Court has demonstrated no interest to date in trampling on the legislature’s spending power.
“The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” wrote Justice Sam “Jimmy” Ervin IV in December 2020 for a 6-1 court majority. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.”
“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures,” Ervin added.
“As a result, the appropriations clause ‘states in language no man can misunderstand that the legislative power is supreme over the public purse.’”
That supremacy doesn’t face a time limit. It doesn’t expire after 18 years — or 100 years, for that matter. The separation of powers remains constant.
One hopes Ervin and the rest of the state Supreme Court will remember that fact as they consider Leandro again in the coming months.
Mitch Kokai is senior political analyst for the John Locke Foundation.