This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
For more than a decade, Republicans have controlled operations of North Carolina's General Assembly. But it's likely that their Democratic colleagues will determine whether the legislature recovers its traditional role as state government's dominant branch.
A lawsuit moving through the state's court system helps explain why.
The suit, dubbed Waldron v. Cooper, pits the owner of a popular Greenville bar against the state's governor. In her initial complaint
, plaintiff Crystal Waldron focused on the discriminatory nature of Gov. Roy Cooper's executive orders linked to the COVID-19 pandemic. Waldron's Club 519 and other private bars remained shuttered for 11 months as Cooper permitted other types of bars to reopen across the state.
Within days of a court hearing on Waldron's suit, Cooper issued a new order. It allowed private bars to reopen in a limited capacity. That change addressed one piece of Waldron's complaint, but it also prompted her legal team to shift its focus
"Until this case was filed, Club 519 had been closed for nearly a year and its owners threatened with financial ruin, all due to the whim of one man,"
wrote Jessica Thompson
, the attorney representing Waldron for the Pacific Legal Foundation. "Since March of 2020, Governor Cooper has unilaterally exercised legislative powers — and there's no end in sight."
"In support of his actions, the Governor relies on the Emergency Management Act, which confers unfettered powers during a state of emergency without any temporal limitations,"
Thompson added. "But in conferring such sweeping powers on the Governor to decide what businesses must close, when they may re-open and under what conditions, the Emergency Management Act violates the separation of powers section of the North Carolina Constitution."
"The problem with one man making all the rules — without sufficient guidance from the General Assembly, without a deliberative process, and without an opportunity for public participation to ensure accountability — is that it is all too easy to arbitrarily pick winners and losers."
"Such one-man rule is antithetical to our system of divided government and cannot be tolerated,"
So Waldron is now challenging the constitutionality of the Emergency Management Act itself. If the act — as written — allows the governor to exercise too much of the power that rightfully belongs to state lawmakers, then it should not withstand a constitutional challenge.
Since the revised lawsuit challenges a law as inherently unconstitutional, the case should move out of Superior Court Judge James Gale's courtroom. State law requires specially appointed three-judge panels to consider this type of legal challenge.
Even though Gale won't make a final determination in the case, his line of questioning during a Feb. 18 hearing
highlighted one key obstacle Waldron and Thompson could face.
"[Y]ou're asking me to impose a judicial order that two-thirds of the legislators in North Carolina don't agree with,"
Gale said in contemplating Waldron's request to strike down Cooper's executive orders. "You're asking me to do what you were not able to persuade a sufficient number of the North Carolina legislature to order."
The judge slightly mangled the number, but his point was clear. Without any action from a judge, the General Assembly could rewrite the Emergency Management Act to rein in Cooper's emergency powers.
The record shows that lawmakers tried twice last June to limit Cooper's emergency authority. Both House Bill 594 and Senate Bill 105 would have placed new restrictions on the governor's use of Emergency Management Act powers. The new restrictions would have placed time limits on Cooper's orders and forced him to seek support from the elected Council of State.
Cooper vetoed both measures. But lawmakers could have voted to override the vetoes, with supermajorities of 60%, or three-fifths, of voting members (an even easier standard to reach than the two-thirds figure Gale cited).
Gale questioned why a judge should insert himself in that constitutional process. "You're asking me to, in essence, overrule the governor's veto."
"The Court feels as if it's being placed in a position that the separation of powers does not condone when you're asking me to do for you what the legislature has been incapable of doing because they can't sustain enough to overturn the veto,"
Gale told Thompson.
A three-judge panel could share Gale's concerns. If so, then Waldron would have a hard time prevailing in court.
With a court win, Cooper would continue to enjoy the power to issue executive orders under the Emergency Management Act. He could effectively open and shut businesses under "one-man rule" that defies our "system of divided government."
Unless legislative Democrats say no.
Seven Democrats in the Senate and four in the House voted for H.B. 594 last June. Only one of those Democrats, Rep. Michael Wray, stuck by his original vote during the House's failed attempt to override Cooper. (Failure in the House meant Democratic senators had no opportunity to revisit their initial votes.)
Not a single Democrat supported S.B. 105, which dealt squarely with the legislature's attempt to restore its primary role in setting policies for North Carolina's emergency response.
Some legislative Democrats might have harbored legitimate concerns about shifting the balance of power between the executive and legislative branches. Others simply wanted to stand by a Democratic governor in his ongoing clash with Republican legislative leaders.
Until a sufficient number of Democrats place the legislative branch's interests ahead of purely partisan considerations, the General Assembly will face an ongoing challenge. It will have a hard time preserving its role as the branch of government with exclusive power to make the laws.
Mitch Kokai is senior political analyst for the John Locke Foundation.