The judges tasked with refereeing an escalating power struggle between the Democrat in the governor’s office and the Republicans at the helm of the General Assembly had many questions for attorneys representing two of the three branches of government on Tuesday.
The three-judge panel is considering whether the General Assembly unconstitutionally grabbed power away from the governor’s office while the Republicans still had control of the executive branch to go with their large majorities in the legislature. Legislative leaders contend they acted within their constitutional authority when they passed laws making the changes in a December special session.
Gov. Roy Cooper argues that legislators went too far when they revamped the state elections board and ethics commission, altering a longstanding process that gave the governor the power to appoint three members from his party to preside over elections as well as two members from the other party.
Cooper also questions the constitutionality of lawmakers’ move to give the state Senate power to decide whether people the governor selects for 10 Cabinet positions are appointed to the posts.
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And the governor questions the shift of some of former Gov. Pat McCrory’s political appointees to a more protected employment status.
Noah Huffstetler, an attorney for the lawmakers, told the judges he thought the legal arguments about separation of powers were perhaps the wrong lens through which to see the case. He argued that nowhere does the Constitution guarantee that the powers of the different branches are equal.
“This is a case about powerful people maneuvering for political advantage that masquerades as a separation of powers case,” Huffstetler said.
Jim Phillips, an attorney representing Cooper, countered that the state Constitution draws distinct lines between the three branches of government. “This comes down to one simple question,” Phillips said. “Does the separation of powers clause mean what it says? They say it doesn’t.”
Judges Jesse Caldwell, Todd Burke and Jeffrey Foster had numerous questions about the intent of the laws, given the timing of when they were passed.
Attorneys for the lawmakers argued that the judges should not consider why the legislators did what they did, but stick to the questions about whether the state Constitution allowed it.
Caldwell, a Democrat and Gaston County judge, raised the issue during arguments of whether the Senate has the power to have a say in who can serve in the governor’s Cabinet. Attorneys for the legislators have argued that the Senate is relying on a part of the state Constitution that makes appointments subject to Senate “advice and consent,” though Caldwell pointed out previous legislatures had seen no reason to do so for centuries.
“You tell me why the timing of this is two weeks before the governor takes office. Your clients didn’t tell you that?” Caldwell asked David Warf, an attorney for the lawmakers.
“That would be privileged,” Warf responded.
Foster, a Republican from Pitt County, homed in on whether it was premature to consider questions related to the Senate’s approval process for Cabinet members. So far, none of Cooper’s appointees have been rejected by the Senate. On Monday evening, the Senate unanimously confirmed Larry Hall as secretary over military and veterans’ affairs.
“They’re not saying you can’t appoint whoever you want,” Foster said, repeating what lawmakers’ attorneys said.
Phillips disagreed, arguing that the lawmakers had given themselves a new veto power over the governor. “They’re saying we get to vet them,” Phillips said. “The statute says if (the governor’s appointees) don’t get approved, they can’t serve.”
The judges went behind closed doors together mid-afternoon. It was unclear how quickly they would rule.
“You’ll know something when we know something,” Caldwell said.