Limiting Cooper’s emergency powers is about ‘checks and balances,’ GOP lawmakers say
For nearly a year and a half, North Carolina Gov. Roy Cooper responded to the coronavirus pandemic with restrictions that came via executive orders under a state of emergency. And nearly the entire time, Republican lawmakers pushed back against some of the rules imposed by the Democratic governor.
Now all the statewide restrictions on businesses and gatherings are gone, as is the mask mandate, though the state of emergency has not yet been lifted. Cooper’s policy shifted after he let the final restrictions expire at the end of July, moving instead to urge local governments to instill mask mandates. Many have, including the state capital city of Raleigh and the vast majority of school districts.
But a policy change 18 months into a pandemic isn’t what some lawmakers want to see happen again. Republicans want to change state law to put more limits on the governor’s powers during an emergency. The latest bill to do that was discussed in a Senate committee on Tuesday.
Lawmakers are framing the issue now as about separation of powers and checks and balances between the branches of government.
“This is not about the ongoing pandemic or what has happened over the last 18 months,” said Sen. Bill Rabon, a Brunswick County Republican and the powerful Rules chair. “It is, I hope, we have learned emergencies do occur and arise and hopefully we won’t have one that has gone on this long in our lifetimes or future generations.”
Council of State
Rabon said the rest of the Council of State “really should have some input. They have expertise in fields not just one person has.”
The other Council of State members are Lt. Gov. Mark Robinson, Attorney General Josh Stein, Secretary of State Elaine Marshall, State Treasurer Dale Folwell, Department of Public Instruction Superintendent Catherine Truitt, Auditor Beth Wood, Insurance Commissioner Mike Causey, Labor Commissioner Josh Dobson and Agriculture Commissioner Steve Troxler.
Troxler, Dobson, Causey, Truitt, Folwell and Robinson are Republicans, and the majority. Stein, Wood, Marshall and Cooper are Democrats.
“One person, and I might as well say Gov. Cooper, should not have to bear all of the responsibility,” Rabon said. Rabon said that Cooper’s path and future governors’ paths would be made easier by changing the law.
Rep. Timothy Moffitt, a Hendersonville Republican, called it “the appropriate path forward.”
“The governor had to shoulder all the responsibilities this past year and a half, and I don’t think that’s an appropriate act for one person to shoulder. We have a Council of State,” Moffitt said.
Democrats, however, said that the bill is a partisan play.
“I’m disappointed that we are focusing on this at this time. This was a bill rejected by all Senate Democrats,” said Sen. Wiley Nickel, a Cary Democrat, referring to the Senate version of the bill. Nickel called it a “partisan power grab” and criticized Robinson, the Republican lieutenant governor, saying he didn’t want him in charge.
Sen. Mujtaba Mohammed, a Mecklenburg County Democrat, argued that the state law already offers the checks and balances that Republicans seek, through the court system and veto overrides.
Mohammed praised Cooper’s handling of the pandemic. He said that North Carolina has had fewer coronavirus deaths and job losses than other states. He said he’s not sure the General Assembly wants a Council of State to determine emergency actions.
“We do have those checks and balances in place; it’s called a veto override,” he said.
Moffitt doubled down on not criticizing Cooper’s coronavirus response in relation to the bill on Tuesday.
“I will not, again, second guess any of the decisions the governor has made,” Moffitt said.
No Republicans criticized Cooper’s handling of the crisis on Tuesday during the committee hearing.
That’s a change from last year.
In 2020, many of Republicans’ objections were related to businesses forced to close or reduce capacity because of Cooper’s orders, and came via reopening bills that were all vetoed. Some of the bills required more instances of agreement from a majority of the rest of the Council of State, which are the other nine statewide elected officials. Cooper vetoed those, too.
In February 2021, the same day that Cooper, House Speaker Tim Moore and Senate leader Phil Berger announced a compromise on reopening all schools for in-person instruction, some Republican lawmakers held their own press conference about limiting emergency powers.
So it’s not a surprise that lawmakers’ final budget proposal is likely to include a policy provision curbing the powers of the governor’s office during an emergency.
Republicans, who control both chambers, want the governor to get agreement from the rest of the Council of State before issuing and extending executive orders related to emergencies. House Bill 264, which the Senate Judiciary Committee discussed on Tuesday, would require Council of State majority approval for emergency declarations within seven days.
State law already calls for concurrence on some orders, but not all, including those 2020 restrictions on businesses like restaurants and bars.
What’s next
Cooper has told reporters repeatedly over the past year that he does not want to change the emergency powers law during the pandemic.
Last week, Rep. Jason Saine, chair of the powerful House Appropriations Committee and a top budget writer, told The N&O that it’s “a little much for one person to have that much power.”
Senate Judiciary voted the bill out of committee on Wednesday, along party lines. It’s more likely to end up in the conference budget, which is the final compromise budget passed by the House and Senate. But that budget, this time, is supposed to have input from Cooper.
“The Governor’s emergency authority has enabled North Carolina to weather this pandemic among the states with both the lowest Covid deaths and lowest job losses per capita,” Cooper press secretary Jordan Monaghan said in a statement on Wednesday. “It’s wrong to slow down the budget process by throwing in politically motivated power grabs.”
Rabon said that Judiciary and other committees would be shutting down within the next few weeks as the end of the session nears, and that the bill could be amended in committee or on the floor.
The General Assembly still hasn’t passed a state budget, but leaders expect the final version of it sometime in September.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published August 31, 2021 at 4:50 PM.