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The Daily Tar Heel

McCrory wins suit against legislature

The N.C. Supreme Court ruled that he can appoint to environmental posts.

After more than a year of litigation, the N.C. Supreme Court handed down a victory to Gov. Pat McCrory over the state legislature in its decision on Friday. 

The Court ruled that the N.C. General Assembly overstepped its boundaries by giving itself the power to appoint the majority of the members of three environmental commissions.

“We appreciate the hard work of the Supreme Court to resolve a constitutional question that needed to be answered,” McCrory said in a statement. 

McCrory — along with former state governors Jim Martin and Jim Hunt — sued Speaker of the House Tim Moore, R-Cleveland, and President Pro Tempore of the Senate Phil Berger, R-Rockingham, in 2014. 

While the legislature has the ability to create state commissions, the power to appoint the commission’s members lies with the governor, said John Wester, the attorney for McCrory, Martin and Hunt. 

“The Supreme Court has held that the legislature violated the separation of powers clause in our state constitution when it created and vested itself with control of three government commissions which would carry out laws the legislature passed,” he said. “This intruded upon the governor’s duty to faithfully execute the laws.”

Chief Justice Mark Martin’s majority opinion will leave the door open to further legal challenges, as it did not establish a definitive ruling on the separation of appointment powers. 

Elliot Engstrom, lead counsel for the Center of Law and Freedom at the Civitas Institute, a right-leaning think tank in Raleigh, said the legislature could continue to test the boundaries of that separation.

“Anytime the legislature is claiming a power for itself that arguably is an executive power, I think that that could be described as a power grab,” he said. “The fact that both sides litigated it tells you they both thought they were right.”

Wester said the Court’s decision was based on fundamental constitutional principles.

“It all goes back to what you learned in grade school,” he said. “The legislature passes laws, the executive carries them out and the courts adjudicate the constitutionality of laws.”

The victory was a significant one for McCrory because North Carolina’s governors are historically some of the weakest in the nation and wield much less power than the legislature, Engstrom said.

“For the courts to rule that ‘No, legislature, you can’t do this’ in a state like North Carolina with a weak executive — that’s a big deal,” he said.

Rob Schofield, the policy director for N.C. Policy Watch, said McCrory has had little success in conflicts with the General Assembly in the past. 

“It’s certainly a victory, but as to whether it amounts to a whole lot in the long run is certainly up in the air,” he said. “Right now, it doesn’t seem he has the political clout to get the things done that he wants to or to make the General Assembly do his bidding.”

The state Supreme Court rarely settles conflicts between the governor and the General Assembly, Engstrom said.

“Do the legislature and the governor disagree? Sure. But how often does it culminate in a lawsuit that goes all the way up to the Supreme Court? Not often.”

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