Court partially blocks Republican bill stripping Cooper of his appointments
A panel of judges on Wednesday partially granted Democratic Gov. Roy Cooper’s request to block a new Republican-crafted law that strips him of several appointment powers.
The law, enacted last month as Senate Bill 512, takes away some appointment power on boards and commissions from the governor and gives it to the legislature and other statewide elected officials.
By issuing a temporary injunction, the court panel blocked appointment changes on three boards and commissions from going into effect: the Economic Investment Committee, the Commission for Public Health and the Board of Transportation. The judges left changes for two other bodies, the Environmental Management Commission and the Coastal Resources Commission, in place for now.
“These judges followed clear constitutional law in their ruling on the Board of Transportation, the Economic Investment Committee and the Public Health Commission,” a spokesperson for Cooper said in a statement. “We believe they are wrong on the Environmental Management Commission and the Coastal Resources Commission because the constitution is clear that the Governor must have a majority of members on these Commissions.”
Cooper, who had his veto of the bill overridden by the Republican supermajority, called the bill a “legislative power grab” last month and argued in his lawsuit that it unconstitutionally diverts power from the executive branch.
“In order to fulfill the governor’s constitutional duties and conform with separation-of-powers principles, the governor must have sufficient control over administrative bodies that have final executive authority, such as the authority to enforce laws and promulgate rules and regulations, to ensure the laws are faithfully executed,” the lawsuit, citing previous separation of powers cases, said.
GOP leaders had acknowledged the bill would likely face legal challenges but said they believe it to be constitutional.
Sen. Warren Daniel, one of the bill’s sponsors, said during the override debate that it brings “balance and accountability to these unelected boards.”
Courtroom debate
Three judges heard Cooper’s challenge on Wednesday: John Dunlow, a Republican elected in 2018; Paul Holcombe, a registered Republican elected in 2022; and Dawn Layton, a Democrat appointed by Cooper in 2019 who later won reelection in an uncontested race.
Cooper’s lawyer, Jim Philips, argued that the law could have far-reaching implications by further empowering the legislature.
“This is our democracy,” he said. “This is about the checks and balances that keep our branches of government in their lanes, this is about making sure that people or organizations that attempt to aggregate power unto themselves are limited so that our democracy continues, so that our government works like it was envisioned to.”
Matthew Tilley, who represented House Speaker Tim Moore and Senate leader Phil Berger, argued that the state constitution does not necessarily afford all appointment power to the governor, but to the executive branch more generally. He pointed out that several of the appointments removed from the governor go to other statewide elected officials on the Council of State, which is part of the executive branch.
Tilley said that it was the General Assembly’s responsibility “to ensure that all executive power is not consolidated and exercised in such a way that it overrides the will of the people.”
What does SB 512 do?
One of several bills passed recently that weaken the governorship, SB 512 is aimed at restructuring a variety of boards and commissions under the executive branch.
In many cases, such as with the Department of Transportation, the changes in the bill would remove Cooper’s ability to appoint a majority of members to these boards. In some cases, those appointments go to legislative leaders, like Moore and Berger, but in other cases they go to other members of the Council of State.
Under the new law, Agriculture Commissioner Steve Troxler, a Republican, would get to replace two of Cooper’s appointees on the Environmental Management Commission. Changes to that commission were not blocked in Wednesday’s injunction.
What’s next?
The judges’ order blocks the board changes until the case can be decided. Dunlow said it was the panel’s intention to move the case forward quickly. He asked lawyers on both sides to submit a proposed schedule by Nov. 15.
This is one of two cases Cooper is currently fighting against new Republican legislation. In a separate case, Cooper sued legislative leaders for passing Senate Bill 749, which makes all state and local election boards evenly bipartisan and removes all appointment power from the governor, giving it to lawmakers instead.
A hearing has not yet been scheduled in that case.
This story was originally published November 1, 2023 at 2:35 PM.
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