Though the long-term impact of a landmark court ruling remained unclear Tuesday, the short-term effect was apparent: a freeze on most appointments to most state boards and commissions.
Monday’s ruling by a three-judge panel also could sour relations between Republican Gov. Pat McCrory and GOP leaders in the General Assembly.
The panel ruled that the governor, not the legislature, has the power to appoint members of boards – such as the Coal Ash Commission – which are “administrative or executive in character.”
Lawmakers planned to appeal the ruling to the state Supreme Court.
As lawyers for McCrory and legislators scrambled to determine the scope of the ruling, one attorney predicted that, if upheld, it could have far-reaching effects.
“I think it would have a major impact on a hundred or more executive commissions and licensing boards,” said Gerry Cohen, a former longtime legislative attorney.
North Carolina has dozens of boards from the Acupuncture Licensing Board and Domestic Violence Commission to the Coastal Resources Commission and Rules Review Commission. Most, said Cohen, have some kind of executive authority.
In the short-run, Monday’s court ruling would forestall key appointments.
Senate Rules Chairman Tom Apodaca of Henderson County said Monday night that the Senate called off a committee meeting scheduled this week to take up gubernatorial appointments for director of the State Bureau of Investigation, members of the State Banking Commission and other positions.
Meanwhile an attorney with the Southern Environmental Law Center said the ruling also could help its suit against the General Assembly and Department of Energy and Natural Resources over the Mining and Energy Commission. The commission enacted new fracking rules that took effect Tuesday.
The lawsuit argued that the legislature usurped executive power by forming the commission as an administrative agency and appointing most of its members. It asked the court to nullify the commission’s actions, including the fracking rules.
“Our case maintains that the rules are invalid because the (commission) that created them is unconstitutional,” said Mary Maclean Asbill, a senior attorney with SELC. “We think the (ruling) is good for our case.”
Though he’s confident the Supreme Court will throw out Monday’s ruling, House Speaker Tim Moore of Kings Mountain said it’s unlikely that even if it doesn’t, actions such as the fracking rules will be thrown out.
“I know it would not go back and invalidate rules that have been promulgated,” he said.
Senate President Pro Tem Phil Berger, a Republican from Eden, said he’s concerned about what the ruling “means for the relationship between the branches of government that has existed for a hundred years.”
For years, the governor and the legislature have appointed members of boards. A 1997 constitutional amendment acknowledged as much. It gave the governor veto power, with the exception of legislative appointment bills.
Cohen said the General Assembly has never demanded the right to confirm gubernatorial appointees, though the constitution says the governor can appoint “with the advice and consent of a majority of the Senators.”
Then there’s the practical political fallout.
Apodaca, influential chairman of the Senate Rules Committee, was asked whether the ruling would exacerbate the already strained relationship between the governor and the Senate.
“It raises more questions than answers,” he said.