RALEIGH A judicial panel, using facilities at the Raleigh campus of the Campbell School of Law, heard final arguments Tuesday on whether a series of laws passed by the N.C. General Assembly in late 2016 violate the separation of powers clause to the point of being unconstitutional. The three laws in question reform the State Board of Elections, codify the N.C. Senate’s role in confirming gubernatorial cabinet appointments, and modify the career status of certain state employees with respect to the state’s human resources act.The central question for the panel of judges to decide is where the constitutional powers of the General Assembly begin versus where the governor’s begin. Judge Jeffrey Foster clarified for the attorneys that the standard for declaring a law unconstitutional requires evidence for such a declaration move “beyond a reasonable doubt.””If there’s anyway it can be constitutional, we have to give the legislature the benefit of the doubt,” said Foster.First, under the law reforming the State Board of Elections, the appointments of the eight-member board would be split in half between the legislature and governor while a supermajority of six members would be required to take any official actions.Representing Gov. Roy Cooper in the case was Greensboro attorney Jim Phillips, who argued the reforms diminished the governor’s powers to the point of preventing him from performing his duties, frequently referencing the McCrory v. Berger case that decided in the governor’s favor on similar grounds.”Because of this supermajority requirement, the governor’s appointees will effectively be in the minority,” said Phillips.Arguing on behalf of Senate Leader Phil Berger (R-Rockingham), Raleigh attorney Noah Huffstelter III countered that the issues at hand are fundamentally different from McCrory v. Berger because the governor does not directly oversee operations of the State Board of Elections and thus changes to its structure did not encroach on his duties.”This is not really a separation of powers case,” said Huffstelter. “This is a case about powerful people maneuvering for political advantage.”As such, Huffstelter said it was not a constitutional question and thus the law should not be declared unconstitutional.Just one day after the N.C. Senate confirmed Larry Hall as secretary of Military and Veterans Affairs, the first of 10 Cooper cabinet picks subject to confirmation under the law, the lawyers battled over the scope of the upper chamber’s advise and consent powers.Phillips argued that the state constitution provides for advise and consent in certain areas and is not provided for in the areas in question.”Even if the General Assembly could add additional advise and consent, under the reasoning of McCrory [v. Berger] to allow statutory consent would go to far,” asserted Phillips. “[Under the law] the Senate becomes a part of the appointment process and that violates the separation of powers.”However, attorneys for Berger stated that the governor’s constitutional authority does not extend to the appointments in questions.”In our constitution the governor’s ability to appoint statutory officers is not protected,” said the Berger’s attorney.The defendants posit that because the appointment powers are given to the governor by statute, not the constitution, the question of unconstitutionality is moot.”The [constitutional] power the governor has is to execute laws,” said defending attorneys. “He does not have a constitutional power to appoint heads of state. There is only one place to add constitutional authority and that’s through constitutional amendment.”Finally, the panel heard arguments related to the law changing career status of executive branch hires. Attorneys for Cooper argued it tied the governor’s hands to hire people to carry out his policy priorities, while attorneys for Berger stated the change was firmly in the purview of the legislature and merely returned to policies extant under previous Democrat governors.Adjourning mid-afternoon Tuesday, the judges indicated their decision would be ready late Tuesday night or Wednesday.
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