The separation-of-powers principle shouldn’t be so vexing to state leaders.
It was, after all, clearly explained in middle school civics class. The legislature writes the laws. The executive implements the laws. The judiciary applies the laws when there are disputes between parties, either civil or criminal.
The principle is to keep any one group of politicians from concentrating power. It goes back to Aristotle in his “Politics” and was adopted by the Founding Fathers in contradiction to the British system of parliamentary government.
As a further restraint on power, our system does allow some interference, in specifically enumerated instances, where one branch can intercede in another. Most notable: The executive can veto laws, and the legislature has some powers to review appointees to executive positions.
Clear as all of that might be, we have a number of lawsuits underway that allege violation of separation of powers. They’re the result of legislative attempts to take executive powers away from Gov. Roy Cooper and Cooper’s attempts to expand Medicaid without legislative approval.
It’s the grown-ups’ equivalent of stealing a classmate’s lunch in seventh grade, and had any of us subscribed to these actions on our civics exams, teacher would have returned the papers covered in red ink and with a big fat “F.”
Let’s start with Medicaid. The legislature writes the laws. The biggest law it passes every year is the budget. If that law does not include permission to spend money, the executive branch can’t spend it. Simple.
Cooper is trying to spend money that hasn’t been budgeted. He says he got authority from the federal government in the soon-to-be-repealed Affordable Care Act. Only a lawyer can explain how a federal law, passed in Washington, can give the governor of North Carolina spending power he or she is not granted in the state constitution.
In addition, the legislature specifically passed a law that said the governor could not expand Medicaid without its approval. (It’s important to remember that the General Assembly expanded Medicaid in the past, from the late 1980s until the early 2000s, for example, annually raising the age of children covered. Neither Gov. Jim Martin nor Jim Hunt claimed the authority to do this on his own.)
The legislature has behaved no better. Conducting an election is clearly a function of the executive branch, implementing elections laws passed by lawmakers. Now the legislature has tried to assume that power through its own appointees. And by limiting the number of people a governor can hire, the legislature is interfering in the governor’s ability to do his job, to implement his policies.
Speaking to reporters on the first day of the session, House Speaker Tim Moore said the tug-and-pull of the separations debate was nothing unusual. “There’s always a healthy competition for influence among the branches,” he said.
“Influence,” yes, but powers? No. The constitution is pretty clear. The civics books are pretty clear. And the current situation is anything but healthy because we have two dangerous precedents being attempted here. One would have the governor appropriating money on his or her own; the other would have the legislature, which already draws its own districts, running its own elections too.
Let’s hope there’s a forceful enough civics teacher who can visit Raleigh and explain this to the boys and girls who obviously don’t understand.
Paul T. O’Connor has covered state government for 39 years.