JOHN HOOD COLUMN: Legislative-appointment bill goes too far

Published 9:50 am Wednesday, June 7, 2023

Getting your Trinity Audio player ready...

RALEIGH — The North Carolina General Assembly seems poised to strip additional appointment powers from the governor. Senate Bill 512 would alter the composition of the state’s Board of Transportation, Environmental Management Commission, and six other entities. The House passed its version May 31. The two chambers will work out their differences in conference.

House Speaker Tim Moore put the matter plainly to the Raleigh News & Observer: “We’ve seen some litigation over the last couple of years that some of us think went the wrong way.”

The North Carolina Supreme Court decided the main case in question, McCrory v. Berger, in 2016. Republican Mark Martin, then serving as chief justice, wrote the majority decision blocking a legislative attempt to appoint majorities to three administrative commissions. The General Assembly had “exerted too much control over commissions that have final executive authority,” Martin argued, thus preventing then-Gov. Pat McCrory from “performing his express constitutional duty to take care that the laws are faithfully executed.”

In 2016, the court had a Republican majority. It has one today, as well, but the personalities are different. Paul Newby was the sole dissenter in McCrory v. Berger, arguing there was ample historical precedent for the General Assembly giving itself a majority of appointments. Unless there is an “express constitutional violation beyond a reasonable doubt,” he wrote, lawmakers can not only create a board but also appoint most of its members.

Newby is now chief justice. Would a case like McCrory v. Berger yield the same result? Moore expects to find out. “There probably will be litigation as a result of this,” he said of Senate Bill 512. “Plenty of job security for the attorneys in the state.”

I disagree with the General Assembly’s approach here, but it’s important to remember that North Carolina’s constitutional system is not simply a state-level reflection of the national one. Our federal constitution vests executive authority in a single elected official, the president, and limits the lawmaking powers of Congress to those enumerated in the document’s first article.

Our state constitution, by contrast, requires the election not just of a governor but of nine other state executives. Moreover, the General Assembly’s legislative authority is constrained only by what’s constitutionally prohibited, not by an enumeration of powers. Other than the governor, our elected executives have few constitutional duties. The legislature decides what powers will be assigned to them. Even the governor’s specified powers are limited when compared to those of other states.

Still, the document does state that “the executive power of the state shall be vested in the governor” and requires him to “take care that the laws be faithfully executed.” In their 2016 decision, most justices properly interpreted these provisions as giving the governor a distinct and important role in North Carolina’s constitutional framework.

With regard to populating key offices and boards, the constitution specifies some procedures. The General Assembly is granted the power to select members of University of North Carolina boards, for example, and “of the other institutions of higher education.”

That’s why another measure, Senate Bill 691, that strips Cooper of appointments — to community college boards — is clearly constitutional, whatever one might think of its merits. But for all state officials whose “appointments are not otherwise provided for,” the constitution requires appointment by the governor with the advice and consent of the state senate.

In practice, as Newby pointed out in 2016, North Carolina’s governors and legislatures have long shared appointments to boards that issue rules, hire and fire employees, and perform other tasks. I think we have too many such agencies, exercising too much power over North Carolinians, but I don’t think the answer is to transfer appointment powers to lawmakers or the likes of the agriculture commissioner or insurance commissioner (and certainly not to a private entity, the North Carolina Medical Society, as Senate Bill 512 does in one instance).

What our state needs is a cleaner separation of legislative and executive powers, not a muddier one.

John Hood is a John Locke Foundation board member.