Cooper, General Assembly Leaders Square Off In Court

Mar 8, 2017

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Three Superior Court judges are now deliberating a case that could have broad implications for how the state of North Carolina is run.

The plaintiff is Democratic Governor Roy Cooper. The defendants are House Speaker Tim Moore and Senate Pro Tem Phil Berger, the leaders of the Republican-dominated General Assembly.

Oral arguments in the case took place yesterday and WFAE's Tom Bullock joins Morning Edition host Marshall Terry to discuss the case.

MT: Tom the heart of this case deals with three laws passed in a December special session.

TB: That's right. The laws in question restrict what Cooper can do as governor. In particular they require his cabinet appointments be confirmed by the State Senate, restrict his ability to fire staff appointed by his predecessor Republican Pat McCrory and merge the state election and ethics board and restrict Cooper's ability to appoint members of a new combined board.

But Cooper's lawyer Jim Philip argued it's about much more than these three specific laws.  It's about the idea of separation of powers.

"Separation of powers is a fundamental tenant of our republic and our state government. Our Supreme Court has referred to separation of powers as the rock upon which rests the fabric of our government."

And the General Assembly, Philips argued, ignored this tenant when it passed the laws in question.

"Defendants think the separation of powers clause is such a weak sister that they believe the General Assembly could choose to appoint the Governor's cabinet secretaries themselves. The defendants believe that their inherent power authorizes them to pass any law they want even if it encroaches on the Governor's power. Even if it is reserved to another branch."

MT: So these are the arguments made by Governor Cooper's attorney, how did the lawyers representing the General Assembly respond?

TB: They had a two pronged argument. Here's part one from lawyer Noah Huffstetler

"The separation of powers clause cannot be enforced as an absolute. If it were taken literally government would be impossible."

Because, Huffstetler argued, the executive and legislative branches have to work together to effectively run the state. Now here's part two of his argument – which is basically this, yes there are separate branches of government as outlined by the State constitution. But separate does not mean equal.

"Nowhere was it stated that the three powers or branches had to be equal. In fact, although the balance has occasionally shifted the preponderance of power has always rested with the legislature."

And, Huffstetler argued, the laws in question have yet to cause any harm to the Governor – his only cabinet pick to go through confirmation was unanimously approved by the state senate – so the court should defer to the general assembly and see these laws as constitutional.

"We are not asserting as the plaintiff has argued, that the General Assembly thinks it can do anything. But our assertion is that every doubt is resolved in the favor of the constitutionality of an act of the General Assembly."

MT:  That's a broad claim Tom, is it true?

TB: Not necessarily. Courts love precedent and there is one key case brought up again and again in oral arguments. That case was Governor Pat McCrory suit against the General Assembly. That had to do with appointing members of a coal ash commission. And in that case McCrory won.

MT: Now politics is seen as another key issue in this lawsuit. These laws were passed by the Republican dominated General Assembly just after it was clear Democrat Cooper would be Governor.

Absolutely. The justices did ask about the intent behind the law.

Huffstetler, representing the General Assembly, stated even if politics was a motive, that's ok.

"I don’t think political advantage or political reasons for doing that is one of those things that courts look at. After all, courts have upheld redistricting or gerrymandering if you want to call it that, for political purposes."

Philips, representing the Governor, said not so fast. And he brought up changes in North Carolina's constitution over the years has shifted the balance of power to the Governor's favor.

"The General Assembly lost the power to appoint the Governor in 1835. Lost the power to appoint the council of state in 1868. And has never regained the full scope of appointment power that it had in 1776."

A decision in this case could come at any time.