Politics & Government

Roy Cooper loses a lawsuit in his power struggle against the NC legislature

North Carolina lawmakers can shoot down Democratic Gov. Roy Cooper’s nominees for top state government jobs, if they want, the NC Supreme Court ruled Friday.

In North Carolina, the governor’s nominees for cabinet secretaries — the people who lead state departments like Public Safety or Health and Human Services — had not been subject to legislative approval before 2017. But after Cooper defeated Republican Gov. Pat McCrory in the 2016 elections, the Republicans who control the General Assembly wrote a new law giving themselves the authority to vet and potentially deny Cooper’s picks.

Cooper sued Republican Senate leader Phil Berger, and on Friday Cooper lost that lawsuit.

“The Governor is our state’s chief executive,” the court’s unanimous opinion says. “He or she bears the ultimate responsibility of ensuring that our laws are properly enforced. ... But the Governor is not alone in this task.”

The system the legislature created gives the Senate the power to vet Cooper’s nominees, which is similar to how the United States Senate confirms the president’s nominees to key posts.

The opinion was written by Chief Justice Mark Martin, a Republican, who upheld similar rulings in favor of the legislature at both the trial court and in the North Carolina Court of Appeals. Democrats have a majority on the Supreme Court.

The Supreme Court ruled Friday that since the governor still has the power to nominate his cabinet secretaries, can still fire them at will and can still supervise them and direct their priorities without interference from the General Assembly, the governor’s powers were not unduly infringed upon.

The justices wrote that the new law “leaves the Governor with enough control to take care that the laws be faithfully executed, and therefore does not violate the separation of powers clause.”

Bill D’Elia, a spokesman for Berger, said in an email they’re glad for the confirmation “that the state Senate has the constitutional authority to conduct a fair and transparent review of the governor’s cabinet secretaries.”

The ruling doesn’t change much, since the N.C. Senate already went ahead with the confirmation process for Cooper’s cabinet secretaries despite the ongoing lawsuit. Lawmakers ended up confirming all of his nominees, The News & Observer previously reported. However, the legislature had sparred with Cooper elsewhere by refusing to approve some of his nominees for lower-tier jobs like members of the Industrial Commission and the N.C. Board of Education, according to past reporting by The N&O and The Associated Press.

“This General Assembly has shown that it will reject qualified appointments, and unfortunately the opinion today does nothing to change that pattern,” Cooper spokesman Jamal Little said Friday.  

This case was just one of a number of lawsuits Cooper filed against the legislature over actions they took to restrict his power after he was elected. Both sides have some wins and losses, and other cases are still ongoing.

Courts ruled the General Assembly violated the constitution by changing the makeup of the North Carolina Board of Elections after Cooper won the governor’s race in 2016. After Cooper sued and then won that lawsuit, the General Assembly created another version of the elections board. It was also ruled unconstitutional earlier this year.

The legislature has since passed a bill creating another version of the elections board. However, also on Friday, Cooper vetoed that bill.

He said while he believed the general makeup of the board would finally be constitutional, he disagreed with a change to state law that legislators added to the bill, which would make future campaign finance investigations secret. Currently those investigations are public.

“The responsibility of investigators and prosecutors to find and eliminate wrongdoing in our elections is essential to maintaining integrity in our most sacred democratic process,” Cooper wrote in his veto message. “This bill makes it harder to root out corruption in elections and campaign finance.”

In other power-struggle lawsuits, the General Assembly also tried to take away Cooper’s authority to appoint members of various executive branch committees through a proposed amendment to the state constitution.

Cooper won an initial lawsuit that forced the legislature to drop parts of their amendment proposal, after a panel of judges ruled that it was worded in a way that would deceive voters. Lawmakers changed the proposal so that it would have affected only the elections board.

Cooper also sued over the second version of the amendment. He lost that lawsuit.

But he won at the ballot box. Voters shot down that amendment as well as another amendment that would have transferred some of the governor’s power to appoint judges to the legislature instead.

Other legal battles still aren’t over between Cooper and the General Assembly. One deals with who gets to decide how to spend tens of millions of dollars from federal grants as well as the legal settlement over pollution that Volkswagen agreed to pay while Cooper was the attorney general. That case is currently at the N.C. Court of Appeals, court documents show.

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