Decade-long political quarrels over legislative and executive powers in North Carolina advanced Wednesday as a state appeals court permitted the Republican-controlled General Assembly to chip away at the Democratic governor’s appointment authority for several key commissions. The judges also said lawmakers went too far remaking other boards.
A state Court of Appeals panel upheld the composition of four of the seven boards approved by lawmakers in 2023 but later challenged by then-Democratic Gov. Roy Cooper. The four implement policies and legislation on the environment, fishing and hunting and residential building codes in the ninth-largest state. But the judges struck down the composition of three that approve transportation policy, public health rules and select economic incentive recipients.
“The majority’s well-reasoned opinion recognizes the breadth and limitations of the General Assembly’s power to alter the Executive Branch’s own powers,” Court of Appeals Judge Tom Murry wrote in a separate opinion agreeing with the conclusions of the two other judges who also heard the case.
Wednesday’s decision marks the latest ruling from several lawsuits filed since 2016 by Cooper and successor Democratic Gov. Josh Stein. They’ve opposed laws designed to erode gubernatorial powers in a state where Democrats have been governor in 28 of the last 32 years and Republicans have controlled the legislature since 2011.
Results on litigation ranging from state elections board control to Cabinet appointee confirmations and choosing the Highway Patrol commander have been mixed. Lawmakers even tussled in the 2010s over appointments with then-GOP Gov. Pat McCrory.
The ruling provided a slightly more favorable outcome for Stein – now the lawsuit plaintiff – compared to the early 2024 rulings of three trial judges who upheld the composition of five of the seven boards challenged. The Court of Appeals panel disagreed with the lower judges, however, by also striking down the makeup of the Commission for Public Health.
The North Carolina Constitution says the governor “shall take care that the laws be faithfully executed.” The governors’ lawyers have argued that means he needs enough supervision of executive branch commissions so that he can control them – which they say means appointing a majority of members.
Republican legislative leaders counter North Carolina has other elected executive branch officials for whom the General Assembly can approve duties – and that’s what they’ve done by giving certain Council of State members appointment powers while the executive branch retains board control. The all-Republican Court of Appeals panel – Murry and Court of Appeals Judges Jeff Carpenter and John Tyson – agreed with the GOP leaders here.
For three of the four boards whose compositions were upheld, the insurance commissioner or agriculture commissioner were granted appointment duties as the governor lost some. In each – the Environmental Management Commission, Wildlife Resources Commission and Coastal Resources Commission – “the executive branch holds majority-appointment power,” Carpenter wrote in the majority opinion. The appeals judges also upheld the makeup of a newly created Residential Code Council in which the governor would still make a majority of appointments.
Meanwhile, the appeals judges agreed the lower court was correct striking down laws giving the General Assembly or its leaders the ability to appoint a majority of Board of Transportation and Economic Investment Committee members. The governor has previously chosen majorities in both. The modified composition of the Commission for Public Health – now also thrown out – would give the governor five of 13 appointments.
Spokespersons for Stein and top GOP legislators didn’t immediately respond to emails Wednesday seeking comment. Registered Republicans hold five of the seven state Supreme Court seats.
Earlier this year, state appeals courts permitted for now a state law to take effect that shifted the power to appoint State Board of Elections members from the governor to the state auditor, who is a Republican. And while trial judges struck down in June as unconstitutional a law that placed some limits on whom the governor could choose to fill appeals court vacancies, the panel let stand provisions taking away Stein appointments from two commissions.
Note: Featured video is from a previous report.
