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Cooper sues legislative leaders over yet another infringement on executive power

In continuance of a theme that goes back to the weeks before he was even inaugurated when the Republican-dominated General Assembly sought to limit the powers of his office and transfer them to the legislative branch, Gov. Roy Cooper is going back to court with Senate President Pro Tem Phil Berger and House Speaker Tim Moore.

The subject of the latest lawsuit: a statute that goes back several decades, but that Cooper says the state Supreme Court has rendered unconstitutional via a series of rulings.

This is from an announcement issued by Cooper’s office this afternoon:

Today, the Governor’s Office filed a lawsuit in Wake County Superior Court, challenging the constitutionality of the membership of the Rules Review Commission (RRC) as a violation of the North Carolina Constitution’s Separation-of-Powers Clause.

Background on the Commission

The RRC is an executive branch agency created in 1986 by the General Assembly to review rules and regulations drafted by the Governor’s Administration. All ten members of the RRC are appointed by the General Assembly, giving the legislative branch an unconstitutional veto authority over rules and regulations issued by the executive branch.

For instance, in the case of rules recently proposed by the Department of Public Safety and Department of Health & Human Services, the RRC stepped into the shoes of those executive branch agencies and rejected the proposed rules on policy grounds — blocking the executive branch agencies’ judgement in favor of its own.

Recent Court Rulings on Separation of Powers

In lawsuits spanning three administrations, under governors of both parties, courts have found that the North Carolina Constitution’s Separation-of-Powers provision prevents the legislative branch from rigging the system to interfere with policy-making authority delegated to the executive branch or the Governor’s constitutional authority and obligation to faithfully execute the laws.

The Governor’s challenge to the RRC’s appointment structure follows on the heels of several recent successful lawsuits brought by Governors of both parties, including McCrory v. Berger, in which the Supreme Court held that the General Assembly cannot appoint a majority of the members of commissions that perform executive functions, like the RRC.

Bottom Line

The current makeup of the RRC allows the legislature to interfere with and undermine the executive branch’s authority to establish policy through rulemaking. This authority is used to make important rules that protect the environment, safeguard public safety, and preserve public and individual health. It could even block the executive branch’s ability to quickly and fully respond to COVID-19 related issues. In recent years, the RRC has been particularly active in second-guessing the policy judgments of the Department of Health & Human Services.

Today’s lawsuit contends that the RRC, as currently composed, is unconstitutional and should have a majority of its members appointed by the executive branch.

Click here to read the complaint filed in Wake County Superior Court. Policy Watch will update this story if and when legislative leaders respond.

One Comment


  1. Jim Aycock

    August 31, 2020 at 8:49 am

    Cooper should file a lawsuit in federal court, claiming that under the Equal Protection Clause, a Democratic governor has a Constitutional right to exercise the same powers as those exercised by a Republican governor.
    Jim Aycock, Asheville

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