The following editorial appeared in the Greensboro News & Record:
It’s hard to keep up with all the lawsuits filed to block legislation passed by the N.C. General Assembly in the last four years. Various groups have challenged abortion restrictions, redistricting, voting laws, school vouchers and changes to teacher tenure, among others.
Only one plaintiff had the power to veto the bills he opposes: Gov. Pat McCrory.
McCrory last week filed a suit against House Speaker Thom Tillis and Senate leader Phil Berger, claiming that the coal ash commission and other agencies created by the legislature violate the state constitution by treading on executive authority.
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The defendants’ reaction was one of incredulity: “Today the governor sued to stop independent boards created in two bills – one he chose to sign and the other he allowed to become law. He vetoed neither,” Tillis and Berger said in a statement.
They’re right. When the coal ash bill, directing the cleanup of Duke Energy storage ponds and forming a commission to supervise the effort, reached his desk, McCrory let it sit there without his signature until it automatically passed into law. The commission is up and running. Yet the governor is now asking the courts to do what he would not.
At the time, McCrory claimed the coal ash commission was unconstitutional and said he would seek an advisory opinion from the N.C. Supreme Court confirming his view. Barring that, he threatened to take legal action.
The court was never likely to advise the governor. But he would have been well-advised to use his veto stamp. The legislature might have offered a new bill without the commission.
There is a serious issue to be resolved, which is why former Govs. Jim Hunt and Jim Martin supported McCrory.
“I have too much respect for North Carolina’s constitution to allow the growing encroachment of the legislative branch into the responsibilities the people of North Carolina have vested in the executive branch,” he said, calling legislative-appointed commissions “unaccountable to the executive branch.”
It’s a basic principle of American government that legislatures make laws and executives carry them out. Is the legislature taking over that function through various commissions?
If so, it has happened before. Berger and Tillis cite the example of the UNC Board of Governors, whose members are appointed by the legislature. Other commissions have been given executive functions without being under the direction of the governor. So, maybe it’s time for the courts to take a new look at this practice and draw clearer lines between executive and legislative branch authority.
McCrory says the dispute is not acrimonious. He’s not convincing. He’s complained of legislative overreach, and Berger has been critical in responding. In the case of the coal ash commission, Berger said in September that McCrory wanted to “avoid an independent barrier between his administration and former employer” – Duke Energy. That was unfair. There was no legitimate reason to create a new bureaucracy to do a job that could be performed by the Department of Environment and Natural Resources.
Governors and legislators have had turf battles before. This one is significant, but McCrory could have ended it with a veto.
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