Separation Of Powers Clash Unlikely Electoral Issue | Eastern North Carolina Now

    Publisher's note: The author of this post is Dan Way, who is an associate editor for the Carolina Journal, John Hood Publisher.

McCrory, General Assembly at Odds Over Coal Ash Panel

    RALEIGH     Gov. Pat McCrory's coal ash clash with the General Assembly to determine the framework of North Carolina government is an important fight, but is unlikely to influence voters' decisions in the Nov. 4 general election, political analysts say.

    Despite his constitutional separation-of-powers concerns over who appoints members to a new Coal Ash Commission that is stacked in the General Assembly's favor 6-3, McCrory announced by video late Tuesday that he would not veto the cleanup bill, and will allow the legislation to pass without his signature so that cleanup can move forward.

    "It is a historical struggle between the executive branch and the legislative branch over the proper scope of each branch's powers," said Raleigh attorney and former state Supreme Court Justice Robert Orr. "If you look back in the early 1980s there were several cases that went to the Supreme Court" on separation-of-powers issues.

    "I think, in defense of the governor raising the question, it's not just a particular piece of legislation he's concerned about," Orr said.

    "But there is an institutional responsibility to protect the powers and authorities of the respective branches, and a governor has the responsibility to the executive branch long term, as the legislative branch has a responsibility to future legislators," Orr said.

    "I don't fault anybody," he said. "It's one that needs to be resolved."

    "I think what the voters will notice is that there is legislation dealing with the coal ash situation," and Republicans can claim credit for cleaning up the coal ash ponds, said political science professor David McLennan at Meredith College's Institute for Political Leadership.

    "For most voters, that's sort of inside baseball" when it comes to the nuances of the separate constitutional battle and who gets the upper hand in appointing members to the Coal Ash Commission, McLennan said.

    Had McCrory vetoed the bill and reignited the uncertainty over cleanup by Duke Energy at its coal ash ponds throughout the state, House Speaker Thom Tillis, R-Mecklenburg, "would have some trouble" in campaign messaging coming down the electoral stretch in his bid to unseat Democrat U.S. Sen. Kay Hagan, McLennan said.

    The constitutional confrontation is an important showdown, but "not all that significant" in this election," McLennan said.

    It "points to the larger divide primarily between the Senate and the governor," McLennan said. "This may sort of portend of a very difficult long session around some key issues" on which McCrory stakes his ground on preventing erosion of his appointive powers, "and the Senate may push back."

    Thomas Mills, a Democratic political consultant and editor of the Carrboro-based PoliticsNC blog, also believes the separation of powers jousting "is getting into the minutiae that voters are never really going to understand," and will have negligible impact on their choices at the polls.

    Mills believes McCrory formulated "a pretty smart move" by not vetoing the bill, but advancing the cleanup provisions while making it known he will challenge the makeup of the Coal Ash Commission.

    "Why in the world would the governor want to give up control of that commission? To me it looked like it was an overreach by the legislature" to salt a majority of the commission with its appointees, Mills said.

    "I will let this bill become law because these actions need to be implemented as soon as possible," McCrory said, but said he wouldn't sign it because "there are major deficiencies that need correcting."

    He said the bill misdirected funding that leaves critical tasks such as dam safety unfunded, has logistically unrealistic reporting requirements for state regulators, and creates another unchecked, non-judicial commission "that reports to no one, has no accountability, and adds another level of unneeded bureaucracy."

    There are "serious constitutional issues with the legislative authority on appointments. It is the legislature's duty to draft and pass laws, but not to execute them, which is the executive branch's authority," McCrory said. He said he will make recommendations to improve the legislation in the long session starting in January.

    McCrory said he and Lt. Gov. Dan Forest would seek an advisory opinion from the North Carolina Supreme Court "to clarify this constitutional issue while still taking additional steps to clean up coal ash." Should that fail, a court challenge would ensue.

    "This commission is part of a broader concern that the legislature has encroached upon the executive branch's responsibilities to administer the laws. Some examples include the proposed Social Services Commission, and Medicaid Commission, as well as the existing Board of Review," McCrory said.

    "While it's disappointing the governor refuses to endorse the strictest regulations on coal ash in the entire nation, it's good news that this bipartisan bill will still become law," Senate Leader Phil Berger, R-Rockingham, said in a written response to McCrory's decision not to sign the legislation.

    "The governor's primary concern appears to be a desire to control the Coal Ash Commission and avoid an independent barrier between his administration and former employer. Keeping the commission separate from the agency that regulates coal ash is not only constitutional, it is a wise policy choice," Berger wrote.

    "For nearly 150 years, North Carolina's state constitution has given the General Assembly the right to make appointments to independent commissions," Berger said.

    "That right has been affirmed by our state Supreme Court since the 1800s, and has long been the basis for legislative appointments and elections to a variety of boards and commissions — including, among many others, the UNC Board of Governors," Berger said.

    Orr said he would be "very surprised" if the Supreme Court agreed to give an advisory opinion.

    "The courts are not there to give advice, they're there to resolve real conflict between parties," and a declaratory judgment action would be the appropriate vehicle, Orr said. That involves one party claiming a law that was passed is unconstitutional, and the court resolves the disagreement.

    That is different from "simply saying I don't think this law is constitutional ... without filing a lawsuit," Orr said. However, he said, the Supreme Court did issue an advisory opinion in 1982 that the General Assembly violated the state constitution's separation of powers clause on two fronts.

    In one, the legislature required the executive branch to get approval from the joint Legislative Commission on Governmental Operations for transfer of more than 10 percent of money from one executive branch agency to another. In the other, the General Assembly created the Joint Legislative Committee to Review Federal Block Grant funds, and required the governor to get approval to determine how to use the funds that historically was the discretion of the executive branch.

    In the Supreme Court's Wallace v. Bone decision of 1982 the court ruled it was "crystal clear" the legislature violated the separation of powers clause by appointing four members to serve on the Environmental Management Commission, whose members all were appointed by the governor previously.

    But in Martin v. Melott the Supreme Court ruled "it is not a violation of the separation of powers provision of our Constitution for the General Assembly to provide that the Chief Justice of the Supreme Court shall appoint the Director of the Office of Administrative Hearings."

    Orr believes there is a shifting political landscape in North Carolina in which some would like to see the historically weak executive branch become stronger. He said in the modern era that began with Gov. Jim Hunt, the state's first two-term governor, and continued with Gov. Jim Martin, the state's only Republican governor elected to two terms.

    "Legislators feel the legislature is supposed to be the most powerful branch in government, and modern executives think, at best, co-equal" governance is the answer, which requires "broader powers in order to run government," Orr said.