North Carolina’s governor gets to live in a mansion whose handsome property occupies a full city block in downtown Raleigh.
He or she gets to meet with assorted dignitaries, here and elsewhere, to talk up the Old North State’s virtues.
He or she gets to make congratulatory remarks at ceremonial ground-breakings, plant openings and the like.
He or she gets to marshal the state’s emergency personnel in response to hurricanes, fires and floods, optionally attired in a spiffy official windbreaker.
He or she gets to propose a state budget that may or may not be taken seriously by the General Assembly.
There are various other privileges, perks and benefits to be savored and perhaps even utilized to advance what the governor envisions as the public interest.
For all that, the person who answers to the title of governor of North Carolina must rely on extraordinary political skills, smarts and force of personality to steer the state in his or her preferred direction.
By dint of a state constitution first penned when resentment toward royal governors still ran strong, it is the General Assembly that has the inside track when it comes to the exercise of power.
That’s the case even though governors now are allowed to serve two consecutive terms and even though North Carolinians not so long ago decided to let their governor veto bills – the last governor in the country to gain that authority (although a weak authority since vetoes are fairly easy to override and there’s no line-item feature).
A governor’s challenge
Jim Hunt was the first governor allowed to succeed himself – he went on to serve four terms in two stretches — and also in 1996 was the first governor granted the veto. He worked for the most part with legislatures controlled by his fellow Democrats, wielding a persuasiveness and discipline that made him an exception to the weak-governor rule. He knew what he wanted to accomplish, especially strengthening the state’s public schools, and generally he made it happen.
Now, 16 years after Hunt left office for the second time, the legislature is firmly in Republican hands. And chieftains of the House and Senate seem determined to make the man who became governor at the start of this year, Democrat Roy Cooper, dance to their conservative tune.
Not that they were much gentler toward Pat McCrory, the Republican whose re-election bid Cooper foiled. But at least McCrory was allowed to choose the people he wanted to run executive departments under his control without having to get the legislature’s approval. In fact, the power of appointment is – or has been – a key prerogative that has helped North Carolina governors follow through on their agendas.
Under a law enacted during the legislature’s flurry of post-election special sessions in December, Cooper would not have free rein to select his 10 cabinet secretaries. He would be obliged to submit the names of nominees to the Senate, which could prevent them from continuing to serve beyond a transition period.
Cooper understandably has gone to court in an effort to have that law blocked as an unconstitutional infringement on a governor’s powers. He’s been unsuccessful in efforts to have the law put on hold while he contests its merits. But he could have what amounts to an ace in the hole – a state Supreme Court decision siding with McCrory in another dispute with the legislature involving appointments.
Further, the law is written in such a way that Cooper can wait until May 15 to formally designate his nominees. The panel of three Superior Court judges that’s been overseeing the case confirmed as much in a Feb. 14 ruling that lifted what had been a temporary stay keeping the law from taking effect. A court hearing on the law’s constitutionality is scheduled for March 7. In the meantime, the judges said, Cooper’s presumptive nominees – eight of whom already are on the job – can continue to serve.
All in all, it’s not a bad position for the governor to be in, considering that he has at least a fighting chance to have the law tossed. The same can be said with respect to another legal dispute he’s having with the legislature over the make-up of the State Board of Elections.
In that case, the Supreme Court has granted a stay sought by Cooper that, for now, keeps appointments to the board in the governor’s hands.
Practically speaking, that means people of the governor’s party and answering to him would supervise the state’s elections – a significant lever of power that of course the governor must use responsibly. McCrory, with his multiple complaints about purported fraud in the November election, seemed to be inviting the board he had appointed to rescue him from defeat. But Republican board members found no voting problems that would have affected the election’s outcome, as narrow as it was.
Senate President Pro Tem Phil Berger casts the requirement that Cooper obtain the Senate’s confirmation of cabinet appointees as a simple effort to probe their qualifications, check for conflicts of interest and ascertain their willingness to “follow the law.”
He naturally can draw comparisons with the federal system, where Senate advice and consent for presidential nominees is accepted practice. And he can point to language in the state constitution seeming to permit the Senate to exercise advice and consent when the governor moves to fill certain posts.
The problem with the federal analogy is that it’s been the rule in Washington since the nation’s founding, whereas Cooper faces a requirement from which other governors, at least in modern times, have been exempt. Most obviously, McCrory didn’t have to run his cabinet picks past anyone. If it looks like the screws are being tightened on Cooper out of partisan spite, it’s reasonable to invoke the looks-like-a-duck, walks-like-a-duck, quacks-like-a-duck standard.
That should give credence to Cooper’s argument that the new set-up tramples on the principle of separation of powers – i.e., that the legislative branch can’t horn in on the prerogatives of the governor. And that aforementioned Supreme Court ruling in McCrory’s favor, with appointments to an executive-branch agency at stake, puts the separation of powers issue front and center.
The 2016 ruling came after McCrory challenged the legislature’s right to appoint a majority of members on three new environmental commissions. (The panels would oversee oil and gas drilling, mining and the management of coal ash.) Chief Justice Mark Martin wrote that while the constitution didn’t bar legislative appointments to administrative posts, the statutory set-up encroached impermissibly on the governor’s turf.
Cooper’s legal filings make a similar argument with regard to his authority to choose cabinet members on his own say-so. The constitutional language dealing with advice and consent is murky at best. But there’s nothing murky about this: “The legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.” That’s the whole of Article 1, Section 6.
Fitness to serve
Legislative scrutiny of cabinet nominees could be a relatively pro forma exercise. But if a nominee were committed to policies that a majority of legislators opposed, he or she could wind up being rejected not because of a lack of experience or because of some character flaw but on policy grounds – a direct slap at the governor.
At least one of Cooper’s presumptive nominees — Michael Regan, already serving as interim secretary of the Department of Environmental Quality — could expect a rough ride along those lines. Regan’s solid environmentalist background is not an asset among the legislature’s anti-regulation zealots, although from the perspective of the Council of Churches and others who want to see proper attention paid to environmental stewardship, he looks like a good pick.
The General Assembly, if it were sufficiently misguided, could do away with the DEQ altogether. That’s a legislative call. But when a duly elected governor who’s committed to vigorous environmental protection selects someone to carry out his policies and to enforce those environmental laws that remain on the books, he deserves the same leeway other governors have enjoyed. The same principle holds when it comes to his choice of other top aides.
In some respects, the ongoing battles over Cooper’s powers are the predictable result of an election that put a Democrat in the governor’s mansion while leaving Republican majorities in the Legislative Building. Judges will have the final say, and it’s their duty to apply the laws and state constitution without partisan favoritism.
Still, those of us who support the generally progressive agenda on which Cooper ran – fair and adequate taxation, better support for public education, strong programs to protect the environment, effective barriers against all forms of discrimination – don’t want to see him hobbled by legislators exceeding their legitimate role. He won. He should have a proper chance to lead.