G.K. Chesterton once said that if you see a fence, ask why someone built it before you tear it down.  

This wise advice also applies to political philosophy. Very often, what may seem like meaningless technicalities in law are actually crucial bulwarks against state overreach and essential to the preservation of liberty.

One of these technicalities is the distinction between discretionary and ministerial functions. In plain English, discretionary functions are actions that public officials have a choice over how to fulfill — for example, the governor’s power to veto or sign a bill, or the General Assembly’s discretion to raise or lower taxes. Ministerial actions, on the other hand, are compelled by state law or the state constitution, and officials have no choice over whether to fulfill them — for instance, a marriage license cannot typically be denied, regardless of how a county clerk might feel about a given relationship.

For over two centuries, North Carolina’s judiciary recognized that courts can compel the completion of a ministerial function, but they cannot interfere with discretionary functions without violating the separation of powers. Courts can enjoin an unconstitutional law, but it’s up to the legislature to enact a constitutional one. This ensures that public officials cannot violate the rule of law but also prevents judges from usurping purely political functions.

However, on Nov. 4 of last year, the North Carolina Supreme Court abandoned this crucial distinction, ordering the General Assembly to spend an additional $5.6 billion on education funding, even though the act of raising taxes and spending public funds is a discretionary function reserved to the legislature alone. Below, we will explore who built this fence, why it matters, and the consequences of tearing it down.  

A look at state history

The purpose of the American Revolution was to ensure that only the people’s elected representatives would have the power of taxation, and North Carolina law has jealously guarded that privilege. Our first state constitution in 1776 stated that no public money could be withdrawn from the Treasury without the General Assembly’s consent. And in 1795, North Carolina ratified the 11th Amendment, which prohibited federal judges from forcing the state legislature to appropriate funds for the payment of court judgments.  

This commitment to the separation of powers did not mean that our state was unwilling to fund beneficial services, such as public education. On the contrary, throughout the early 1800s, according to N.C. historians Benjamin Justesen and Scott Matthews, “North Carolina’s common schools are considered to have been among the best in the South.” The only caveat was that the legislative branch, which was closest to the people, was given the task of regulating education, rather than the courts. Furthermore, in 1868, North Carolina’s new state constitution required that criminal fines and land sales be used exclusively to fund public education.  

Later on, in the early 20th century, the distinction between ministerial and discretionary actions was officially clarified. In 1935, when a county withheld certain funds from its public school system in violation of state law, the court ordered local officials to release the funds in Hickory v. Catawba County. The court held that spending these already-raised funds on public education was a ministerial function mandated by law, and thus, it had the authority to compel its completion.  

However, North Carolina courts also recognized that their authority was limited to ensuring that funds already raised and designated by law for public education actually went to that endeavor. They could not tap into other parts of the budget or compel a tax increase in order to meet those requirements, because appropriating funds and raising taxes were legislative prerogatives.

This understanding was upheld in 2017 by the North Carolina Court of Appeals. In Richmond County Bd. of Ed. v. Cowell, the state used revenue collected from fines to pay for county jails, even though the North Carolina Constitution specifically earmarks such revenue for public education. The Richmond County Board of Education sued the state and won, but before the case was over, all revenue from fines for the year was spent. The board asked the Court of Appeals to take money from other parts of the budget to satisfy the judgment, but the court refused.  

“Appropriating money,” it declared, “from the State treasury is a power vested exclusively in the legislative branch… Thus, when the courts enter a judgment against the State, and no funds already are available to satisfy that judgment, the judicial branch has no power to order State officials to draw money from the State treasury to satisfy it… The Separation of Powers Clause prevents the courts from stepping into the shoes of the other branches of government and assuming their constitutional duties. We have pronounced our judgment. If the other branches of government still ignore it, the remedy lies not with the courts, but at the ballot box.” 

Leandro case highlights the issue

That is exactly what the court unfortunately did last year. Relying on a policy paper from a progressive group in San Francisco, California, it declared, in the Leandro case, that North Carolina’s public schools were inadequate and ruled the General Assembly must increase its budget, usurping a purely political function. This is unlikely to actually occur; however, because shortly after the decision, two Democrat Supreme Court justices lost their races and the new Republican-majority court has already blocked lower courts from forcing the General Assembly to transfer money in response to the Leandro ruling.

The 1868 Constitution (and its 1971 revision), upon which the previous court purported to rely, also expanded the franchise. The goal of its framers was, in large part, to ensure that government decisions in North Carolina would be made democratically rather than by a small hierarchy. They certainly never intended to entrust control over our state’s public education system to four judges, taking it away from the people’s elected representatives. This decision violates both the text and the spirit of our Constitution. Respect for the Appropriations Clause, stare decisis, and the consent of the governed all demand that it be reconsidered.