Former McCrory attorney: NC lawmakers trying to steal governor’s powers. It’s unconstitutional. | Opinion

Editor’s Note: The writer was general counsel for Gov. Pat McCrory from 2013-2016.

There’s a bill working its way through the N.C. General Assembly that has received little attention so far, but if it becomes law it will dramatically change the way our state government operates.

The legislature wants to take away significant powers of appointment from the governor and vest those powers in themselves.

Specifically, the proposed bill would limit the governor’s ability to make appointments to key boards and commissions which exercise executive authority, such as the Utilities Commission and the Board of Transportation. The bill would reduce the number of appointments the governor could make to these two entities, both of which hold critical importance to people like you and me.

The Utilities Commission regulates utilities including the rates they charge every citizen. The Board of Transportation is responsible for administering our transportation dollars and making recommendations on road and highway construction. Both of these entities have functioned responsibly for decades, no matter which political party was in power in the N.C. General Assembly or the governor’s office.

Our founding fathers made clear in the N.C. Constitution that our government would function through three separate and distinct branches. Under the state constitution, the legislative branch makes the laws. The executive branch, led by the governor, has the duty to faithfully carry out the laws. The judicial branch interprets the laws and determines their validity.

Each branch must “stay in its lane,” avoiding interference with another branch’s exercise of its powers.

The governor of North Carolina has specific and limited means to faithfully carry out the laws. The governor cannot pass any law or declare any law unconstitutional. Instead, the essential tool the governor uses is the appointment of citizens to boards and commissions.

When the N.C. legislature restrains or cuts back this already limited power, it interferes with the governor’s constitutional duties. It also gives the legislature a way to determine how the laws are used every day. Doing so falls outside its responsibilities.

In 2014, the N.C. General Assembly tried this same maneuver to change the powers of appointment by giving itself supermajorities for three separate commissions in the environmental area. Governors Pat McCrory, Jim Hunt and Jim Martin — two Republicans and one Democrat — joined forces to fight this legislative overreach.

In McCrory v. Berger, the trial court of three superior court judges ruled 3-0 for the governor’s position. On appeal, the N.C. Supreme Court agreed, and ruled, in a 6-1 decision, that the General Assembly’s attempt to limit the governor’s appointment powers was unconstitutional.

In McCrory, our state Supreme Court found that “…the legislative branch has exerted too much control over commissions that have final executive authority. By doing so, it has prevented the Governor from performing his express constitutional duty to take care that the laws are faithfully executed.”

The current attempt to change the appointment powers violates our state’s constitution for the same reasons — one branch shall not “…prevent another branch from performing its constitutional duties.” The phrasing of our constitution is explicit and clear: “forever separate and distinct.”

I hope the legislature will put these features of our constitution, so recently articulated by the N.C. Supreme Court, in the forefront of their consideration.

Robert C. Stephens served as chief legal counsel in the administration of former North Carolina Gov. Pat McCrory. Stephens is a Charlotte native who now lives in Raleigh.