Last week North Carolina Speaker of the House Tim Moore invited President Donald Trump to deliver the State of the Union at the North Carolina Legislative Building. I am sure Moore must have had good reasons for extending the offer; but the fact is that the governing philosophies of the speaker and the president could not be more different — at least when it comes to separation of powers. Having the president speak at the North Carolina Legislative Building then might seem somewhat contradictory to the speaker’s agenda and maybe even to the president’s.
Moore, for example, apparently believes that most, if not all, government power should be vested in the legislative branch. So he has done everything he can to expand legislative power while simultaneously constricting that of the governor’s. This includes working to curtail the governor’s powers of appointments, undercutting the governor’s authority over the State Board of Elections, and ending the governor’s right to fill existing judicial vacancies. Presumably then, the speaker should be opposed to President Trump’s efforts to expand presidential power through unilateral action at the federal level — including appointing persons to key position without even consulting the legislative branch. Consider, for example, the president’s recent action in appointing Mathew Whittaker to be the Acting Attorney General even though Whittaker has never been confirmed by the United States Senate.
President Trump, on the other hand, believes that most, if not all, government power should be found in the Executive Branch. So he bemoans any attempt by the Congress not to give him everything he wants – even if that means shutting down the federal government in retaliation. As the President sees it, the fact that he won the Presidency means that he has the support of the people so he is entitled to have his agenda enacted. So presumably he would believe that the North Carolina legislature should defer to Governor Cooper- who, after all, actually won the North Carolina popular vote. If governing by executive branch fiat is the order of the day in Washington, then why not in Raleigh?
Some might suggest that this is just business as usual and that those in power always do whatever they can to expand their authority. So why should we expect any of our elected officials to be consistent in their approach to separation of powers? Further, some might also raise the ever popular ‘whataboutism’ objection, asking what about the time a Democratic president did X or what about the time a Democratic legislature did Y? Weren’t those actions also improper expansions of power? Then why should we expect a Republican president or a Republican speaker to act otherwise?
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Perhaps. But ‘whataboutism’ is not an answer. ‘Whataboutism’ only means that someone else acted wrongly — it is not a justification for new usurpations of power. Separation of powers is a principle of governance to which all elected officials, federal and state, legislative and executive, Republican and Democrat, should adhere — even if others have not been so restrained. Our constitutional system of government depends on it.
Of course, at the moment, separation of powers and the rule of law are not doing well in either Washington or Raleigh. I am just not sure why anyone in North Carolina would want to highlight that fact.
William Marshall is the Kenan Professor of Law at the University of North Carolina.