Detractors of the current General Assembly’s leadership like to posture that they just can’t believe that those crazy Republicans are passing bills giving the legislature and their own party more power over the other branches of government. ‘It’s unprecedented!’ they cry. ‘It’s a coup!’ they scream. Hardly.Plenty of perspective and history is contained in a recent order from the state Court of Appeals. The three-judge panel ruled March 17 on the constitutionality of laws that the General Assembly passed in December to limit Governor-elect Roy Cooper’s power. The decision was a mixed bag for both sides, with the legislature winning on senatorial confirmation of cabinet officers, and Cooper winning on the issues of firing power over certain state employees and on the state ethics and election boards.But what is so interesting about the order is its frequent recurrence to the observation that the state constitution puts the legislative branch far above the other branches. This is in stark contrast to the U.S. Constitution, which establishes three co-equal branches of government and acts as a limiting document on all three. Thus, the Cooper v. Berger order, reminds us that courts must apply “every reasonable presumption that the legislature as the lawmaking agent of the people has not violated the people’s constitution.” And that quotation is not even in the opinion part of the judges’ order, it is given as the standard of review a longstanding and unchallenged principle of constitutional law in North Carolina.The judges further demonstrate the constitutional reasoning behind the legislature’s primacy later in the opinion, in the portion dealing with the Senate’s confirmation process for cabinet officers. The court found, as a matter of fact, not legal reasoning, that the General Assembly can take whatever action it wants as long as that action is not prohibited by the constitution: “The will of the people ‘is exercised through the General Assembly, which functions as the arm of the electorate. An act of the people’s elected representatives is thus an act of the people and is presumed valid unless it conflicts with the constitution.'”Both the federal constitution and North Carolina’s document reserve every power not granted to the government to the people. But only North Carolina’s constitution treats the legislature as the people, i.e., “the arm of the electorate.” Congress’ laws must be rooted in a power granted by the Constitution, but the General Assembly can exercise any authority it wants unless it is prohibited by the state or U.S. constitutions.Some might be led to think that courts’ reading the constitution as treating the General Assembly as “the people” is a newfound interpretation. It is not. The precedents cited in the March 17 order go back nearly to 1971, when the current constitution became effective. Of the three state Supreme Court decisions relied on most by the panel, Wallace v. Bone is from 1982, Pope v. Easley was 2001, and McCrory v. Berger was 2016. Other cases were decided in 1989, 1993, 1997, and 2008.The Pope v. Easley case is a perfect example of perspective. In 2000, the Democrat-led General Assembly expanded the Court of Appeals by three judgeships. To ensure Democrats would maintain control of that part of the judicial branch, they also legislated a special vacancy-filling process that would give Democratic Gov. Jim Hunt the power to appoint all three judges. The case went to the Supreme Court, where its name was changed from Pope v. Hunt to Pope v. Easley after Mike Easley took office in 2001.Like last week’s opinion, the court’s ruling was a mixed bag. You can expand the appeals court all you want, the Supreme Court said, but the constitution already provides a process for filling vacancies, so you can’t change that.Politicians will ever be in the business of trying to expand their power and control. Whatever the limits are, they will be tested. That is why constitutions and courts are so important. But so is having a little perspective.
Drew Elliot is a member of the North State Journal’s editorial board, separate from the news staff. Unlike other newspapers, the North State Journal does not publish unsigned editorials; the author or authors of every editorial, letter, op-ed, and column is prominently displayed. To submit a letter or op-ed, see our submission guidelines.
