Few people want to spend time these days debating the finer points of constitutional law and government’s separation of powers. That makes sense. Until we know the limits of the COVID-19 coronavirus pandemic, most people prefer to focus on actions that keep themselves and their families safe.
But even if we have to place a pin in our constitutional debates, the long-term health of North Carolina’s state government requires us to resume that debate at some point after the crisis.
Policymakers, pundits, and the public ought to review and resolve a recent dispute between Gov. Roy Cooper and the state’s other elected executive branch officials. Disagreement stemmed from the governor’s unilateral decision to shut down bars and restaurants statewide.
It’s worth pointing out that emergencies often test the boundaries of government power. In a recent National Review Online article, former federal prosecutor Andrew McCarthy warned about the “limits of law.”
“The history of this country is one of ceding authority to the chief executive, to an extent commensurate with the public’s sense of real threat, particularly lethal threat on a mass scale,” McCarthy wrote. “Later, Congress and the courts push back, but only once the perception of peril ebbs. They push back with law. Yet, the extent to which law is a real barrier to future presidential muscle-flexing, for good or ill, depends not on what the statutes and opinions say, but on how scared we are.”
McCarthy highlighted action from a presidential administration in Washington, D.C. But one could apply his lessons to a governor as well. Governors react more often than presidents to emergency conditions — often in the case of a weather-related disaster.
North Carolina’s Emergency Management Act dictates five extra powers for the state’s chief executive during a state of emergency. Each is relatively broad, including the power “to utilize all available State resources as reasonably necessary to cope with an emergency, including the transfer and direction of personnel or functions of State agencies or units thereof for the purpose of performing or facilitating emergency services.”
The governor has access to seven more powers, including evacuation orders, economic controls, and regulation of car and pedestrian traffic flow. But each requires “the concurrence of the Council of State.”
Lawmakers who wrote the Emergency Management Act recognized that a governor needed to have flexibility to act during a fast-moving crisis. They also saw the danger in placing too much authority in one person’s hands, even during an emergency. That’s why a governor cannot unilaterally prescribe a hurricane evacuation route. He can’t ration goods or fix prices on his own. He can’t throw out a regulation or ordinance by himself.
To take any of these unusual steps, the governor must get “concurrence” from the Council of State. That’s the collected group of North Carolina’s nine other statewide elected executive branch officers. None of them works for the governor. The lieutenant governor, attorney general, state treasurer, and other council members must appeal to voters across North Carolina every four years to keep their jobs.
There’s no indication that concurrence requires a governor to secure unanimous support for his plan among the Council of State. But it would be hard to square “concurrence” with opposition.
That’s why Cooper’s March 17 order closing bars and restaurants should raise red flags. Cooper’s staff submitted his proposed order to Council of State members via email around 12:45 p.m. that day. The governor sought a response within 30 minutes, then announced the plan during a 2 p.m. news conference. The order took effect at 5 p.m.
Cooper advanced his proposal despite a “majority” of the council voting against the plan.
Regardless of the merits of Cooper’s shutdown, his decision to act without meaningful consultation and advice from the Council of State ought to concern any supporter of limited, constitutional government.
This observer would be more inclined to give Cooper a pass in this instance if not for his history. Even in nonemergency conditions, this governor has attempted to shift the balance of government power in his favor — with varying degrees of success.
When the General Assembly tried to remake the State Board of Elections, granting the two major parties an equal number of board seats, Cooper sued. Among his arguments: His party’s one-seat majority would give him effective control over the board. That was an interesting stance to take. Prior to Cooper, the elections board traditionally had been viewed as operating outside direct influence from elected officials.
Cooper won that court battle. But he was less successful when arguing in a separate lawsuit that lawmakers had no right to confirm his Cabinet appointments. A unanimous N.C. Supreme Court affirmed a unanimous Appeals Court ruling against the governor.
Bipartisan rulings against Cooper at the trial-court level and in the N.C. Court of Appeals have not stopped his continuing pursuit of control over state spending decisions involving federal funds.
Cooper is dragging that fight to the N.C. Supreme Court, ignoring the Appeals Court’s unanimous determination that the General Assembly “wields exclusive constitutional authority over the State’s purse.”
Yes, fights over budgets and government appointments differ from a dispute about a public health crisis. But both types of disagreement could affect the long-term stability of North Carolina’s constitutional structure.
As state government takes steps to protect the foundation of our society’s health, it shouldn’t damage its own foundation in the process. At some point beyond the immediate crisis, North Carolina must reassert proper constitutional limits on its governor.
