Note: This story has been updated to reflect Cooper’s and GOP legislative leaders’ responses.
The North Carolina Senate has the power to hold confirmation hearings to approve Gov. Roy Cooper’s Cabinet nominees, according to the state Court of Appeals.
A three-judge appellate panel on Tuesday published a favorable opinion to lawmakers in Cooper v. Berger, a separation of powers lawsuit over the Senate’s right to have a say in Cooper’s picks to head state departments. It affirms a lower court’s opinion in the case.
GOP lawmakers passed an “advice and consent” statute in an emergency session last December after Cooper, a Democrat, defeated incumbent Gov. Pat McCrory, a Republican.
The lawsuit over the statute is part of an ongoing battle for power between Cooper and Republican lawmakers, who hold a super-majority in the legislature. The Senate did not ultimately reject any of Cooper’s nominees.
“While a provision of the Constitution mandates separation of powers between the branches … another provision also reserves to the Senate ‘the advice and consent’ of the Governor’s appointments of constitutional officers,” the opinion states. “If separation of powers does not prohibit or constrain the Senate from confirming officers created by the Constitution, separation of powers does not otherwise prohibit ‘advice and consent’ being applied to gubernatorial appointees over agencies the General Assembly created, and which agencies can be amended or repealed by statute. ‘[A] constitution cannot violate itself.'”
The appellate judges on the panel are Rick Elmore, Donna Stroud and John Tyson.
Cooper responded to the opinion at a Council of State meeting.
“This case will ultimately be decided by the State Supreme Court,” he said. “With the makeup of this three-judge panel we fully expected this result. They essentially kicked it upstairs to the Supreme Court. We believe that these arguments are sound and that these laws will end up being declared unconstitutional by the State Supreme Court.”
Senate President Pro Tem Phil Berger and House Speaker Tim Moore did not return a request from NC Policy Watch for comment after the opinion. They did, however, release this joint statement online:
“As the court noted, ‘a constitution cannot violate itself,’ and ‘a legislature that has the authority to create executive agencies also has the authority to require legislative advice and consent.’ It is in the people’s interest for their elected representatives to conduct a fair, constitutional and transparent review of the governor’s cabinet secretaries.
Gov. Cooper has no legal grounds to continue his pursuit of unchecked power and should quit wasting taxpayer money on divisive, baseless and self-serving lawsuits.”