Much has changed since state’s top court decided McCrory v. Berger

Critics of North Carolina’s Republican-led General Assembly often complain about “power grabs.” They cite state court rulings dating back to a case called McCrory v. Berger.

In that fight between a Republican governor and GOP lawmakers, the state Supreme Court ruled, 6-1, that the General Assembly had stepped over the line when giving itself the majority of appointments to certain state boards. The majority opinion, written by then-Chief Justice Mark Martin, cited a violation of the constitution’s separation-of-powers clause.

That was January 2016.

Now, the only justice remaining from the McCrory v. Berger court was the case’s lone dissenter. Then an associate justice, Paul Newby now sits in Martin’s seat as chief.

It might be worthwhile to review what Newby said in McCrory about legislative power.

“Unlike the Federal Constitution, the state constitution is not an express grant of power but a limitation on power,” Newby wrote near the beginning of his 25-page dissent. “All power not expressly granted to the federal government or limited by the constitution resides in the people and is exercised through the General Assembly.”

“As an exercise of the General Assembly’s lawmaking power, this appointment authority, both constitutionally prescribed and jurisprudentially recognized, does not implicate separation of powers because under our jurisprudence the authority to appoint the official has never been deemed the power to control the appointee,” he explained. “Our state’s constitutional text and history and this Court’s precedent demonstrate that when the legislature statutorily enables itself to select the official, it is simply filling the position and not controlling the appointee.”

The dissent warned against courts stepping into the General Assembly’s business. “The idea of one branch of government, the judiciary, preventing another branch of government, the legislature, through which the people act, from exercising its power is the most serious of judicial considerations,” Newby wrote.

“Since its inception, the judicial branch has exercised its implied constitutional power of judicial review with ‘great reluctance,’” Newby added, citing the Bayard v. Singleton case that predated North Carolina’s adoption of the federal Constitution. “[W]hen it strikes down an act of the General Assembly, the Court is preventing an act of the people themselves.”

Because restricting the General Assembly’s work represents a restriction of the people, “this Court presumes that legislation is constitutional, and a constitutional limitation upon the General Assembly must be express and demonstrated beyond a reasonable doubt,” Newby wrote.

In McCrory, Newby determined that the challenge to legislative action “cannot surmount the high bar imposed by the presumption of constitutionality given to legislative acts.” The power to make laws “is limited only as expressly forbidden by the constitution and by federal law.”

Newby turned directly toward government appointments. “This broad constitutional power to make laws includes the indisputable authority of the General Assembly to create executive statutory offices,” he wrote. “Along with the power to create the office, the legislature has the power to assign the selection authority either to itself or another.”

“There is no constitutional limitation on the General Assembly’s designating itself as the appointing authority of positions it creates by statute,” he added.

The dissent cites the nation’s revolutionary year. “In 1776 the Drafters of the Declaration of Rights in our state constitution provided for separation of powers,” Newby wrote. “[T]he next day, those same Drafters specified legislative appointment of the entire executive and judicial branches.”

The implication is clear: Writers of the state’s first constitution saw no conflict between the separation of government powers and the legislature’s ability to fill government jobs.

Newby placed the governor’s power in context. “The executive branch executes the laws as enacted by the General Assembly,” he wrote. “The constitution expressly acknowledges the General Assembly’s power to assign duties and functions to the executive branch under its broad lawmaking power.”

Lawmakers who set up the current appointment system can change that system, Newby determined. “The General Assembly retains the prerogative to change these duties, the organization of the executive branch, and the branch’s supervisory structure,” he wrote. “Though the General Assembly may have assigned a particular function to a constitutional executive officer at present, the constitution provides that the legislature can assign that function elsewhere.”

As in 2016, Newby holds just one vote on the seven-member state Supreme Court today. Though he is one of five Republican justices, there is no guarantee that any of the five would vote to overturn the McCrory decision.

Yet those who label today’s legislative actions unconstitutional might want to think twice about testing the court. Justices could order a course correction to protect the power residing “in the people … exercised through the General Assembly.”

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