McCrory scores a legal victory for balance of power

North Carolina Gov. Pat McCrory
North Carolina Gov. Pat McCrory

For members of the same political party, the Republican leaders of the General Assembly and Gov. Pat McCrory have had surprising tussles. And whether it was deep-sixing a puppy protection bill, ignoring McCrory’s request for revenue-neutral tax changes or overriding his rare vetoes, lawmakers have treated the governor like someone they’ll listen to but not necessarily follow.

For his part, McCrory has often shown his inexperience in state politics, which he entered after 14 years as mayor of Charlotte. That lack of savvy has at times made him look weak.

But the governor now has himself a victory. The governor’s lawyers and those representing legislative leaders, House Speaker Tim Moore and Phil Berger, president pro tem of the state Senate, argued before a three-judge panel whether the legislature or the governor has the right to appoint members to certain commissions.

The governor, who filed suit to protect his appointing authority, was upheld by the judicial panel and proclaimed it a victory for the separation of powers. Moore and Berger will, of course, follow the automatic appeal to the state Supreme Court.

The issue arose because the legislature created the Coal Ash Commission to oversee cleanup of the state’s coal ash storage ponds after last year’s huge spill at the Dan River. The legislature also gave itself the power to appoint six of the commission’s nine members, in effect granting the commission power to pass and carry out whatever regulations it wanted. No checks, no balances.

Legislative leaders claim the judges offered a “new interpretation of the constitution.” But the judges said they were preserving, not changing, the constitutional balance of powers.

Their ruling said, in part, “The statutes creating these commissions (two others were also affected), enacted by the Legislature, provide for the legislative appointment of some of the members, thereby constituting an impermissible ... encroachment by the legislative branch of government on the executive branch ... in violation of the North Carolina Constitution.”

Commissions that are “administrative or executive in character,” the court said, can’t be in effect controlled by lawmakers.

The judges’ panel was led by Wake County Superior Court Judge Howard Manning, a jurist as respected as any in the state and a Republican.

McCrory wasn’t the only one who felt the case was important to stand up for the constitutional separation of powers. His sentiments were shared by former Govs. Jim Hunt and Jim Martin. Martin for one said the case represented a more sweeping support for separation of powers and the guidelines thereof than other cases that have come up.

Berger, an attorney, is a veteran legislator who knows how state government works and most certainly knows the state constitution. Inexperience may be an excuse for some in trying to usurp a governor’s authority, but in Berger’s case it seems another example of showing the governor who’s really in charge of state government.

Such political posturing is irresponsible. Powers are separated, and checks and balances exist for sound reasons, to prevent one branch of government, or one group of powerful legislators, or one powerful governor from acting without being subject to questions or consequences for excesses.

The danger now is that legislative leaders, resentful of McCrory’s defiance, will try to reinforce their authority through new laws.

It’s amusing for Democrats to watch the Republicans who took them out of power now squabbling with each other. Unfortunately, in the meantime not much is getting done for the people of North Carolina, who would like to see the General Assembly do something constructive instead of appearing to try to disassemble government from the top down.