Balancing Separated Powers

Posted: January 10, 2017 by Nazim in Checks & Balances, Governmental Agencies, Legislation, Separation of Powers


As I previously mentioned, in December, the North Carolina legislature passed a law limiting the future governors’ powers. The background to this action is that the legislature belongs to one party (with a veto-proof majority), and the governor to the other. The current governor, on his way out, signed the bill into law. Specifically, the new law strips future governors of their power to appoint a majority to the State Board of Elections. It also makes it more difficult for certain types of cases to appeal directly to the NC Supreme Court, which is controlled by the future governor’s party. Pending legislation (pdf warning) also strips the governor of his ability to name members to the boards of state universities, and reduces the number of state employees the governor appoints from 1,500 to 425. Further, the governor’s cabinet appointees become subject to approval by the State Senate.

In an interesting turn of events, a NC Superior Court judge temporarily blocked the new law with an injunction, citing McCrory v Berger (pdf warning). In that case, the legislature created an agency within the executive branch. The court held that separation of powers required that the governor, as leader of the executive branch, must have effective control of the agency. But, since the legislature selected a majority of the agency members, and it could remove members for cause, the court decided that the governor didn’t have enough control over the agency for it to respect the separation of powers required by the NC state constitution.

The current case, however, is slightly different: the election board at issue is an independent state agency (and since it’s not an executive agency, it presumably doesn’t need to be controlled by the governor), and the members are evenly selected by the governor and the legislature. My guess is that it should come out okay because of those differences, but it’s a new issue for the NC courts – which makes the injunction a smart play by the judge. I don’t expect this to be appealed to the Federal Supreme Court, because it’s squarely a state constitutional issue, but it’s nice to see courts not shy away from these very real constitutional issues just because politics are involved. Although, admittedly, state courts are much more likely to be politically active, since state judges often are heavily tied to one party or another, unlike federal judges, who tend to distance themselves from the political machinations of Washington DC. Relatively speaking, of course.

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