Perspective on the Separation of Powers Case
Published for Coates' Canons on March 31, 2015.
Earlier this month a panel of three superior court judges held that the General Assembly’s appointment of a majority of members to the new Oil and Gas, Mining and Coal Ash commissions violates the state constitutional provision on separation of powers. The decision, which is subject to direct appeal to the state supreme court, is the most recent litigation in a 30+ years’ tug-of-war between the governor and legislature over administrative agencies. Some perspective on that conflict, and a brief look at how the courts’ view of separation of powers has evolved in recent years, may be useful in thinking about what comes next.
The seeds of executive/legislative conflict
The modern era of separation of powers litigation in North Carolina began in the early 1980s, most often involving disputes between the governor and legislature. Several developments in the 1970s and earlier gave rise to these conflicts.
First, North Carolina was evolving into a two-party state, in 1972 electing Jim Holshouser the first Republican governor since Reconstruction. The General Assembly, on the other hand, remained solidly Democratic for another couple of decades. Conflict was inevitable.
Second, the governor’s office, regardless of the party of the incumbent, had become a more forceful part of state government, and more of a threat to legislative preeminence. The growth in government from the 1930s through today has overwhelmingly been in the executive branch, as government at all levels has taken on more and more functions. Additionally, in North Carolina the governor’s office itself started changing significantly in the 1970s. Beginning in 1977 the governor no longer was limited to a single term. Jim Hunt became the first governor to serve two terms, from 1976 to 1984 — and then he did it a second time, from 1992 to 2000. (The gubernatorial veto did not come until 1996, as North Carolina was the last state to adopt it.)
A third factor in the increasing conflict between the executive and legislative branches was the change taking place in the General Assembly. Stirred partly by a 1971 national report listing North Carolina third from the bottom in effective legislatures, the General Assembly began beefing up its own operation and reducing its dependence on the executive. The legislature, which had not hired its first full-time employee until 1969, created its own fiscal research division in 1971. Soon lawyers were employed to do general research and advise committees. In 1979 the legislature started its in-house bill drafting office rather than relying on the Attorney General. Equally significant, in 1973-74, with the oil crisis playing havoc with the state budget, and a Republican in the governor’s office, the legislature began meeting annually rather than every other year. Thus, just as the governor was becoming a stronger office the legislature, too, was moving toward a more assertive institution with greater interest in the day to day operation of state government.
Finally, state government increasingly turned to administrative agencies to do its work, making separation of powers issues almost unavoidable. The typical administrative agency just does not fit neatly into the classic categorization of three branches of government. Such agencies often blend all three functions — a commission will be empowered to adopt rules (legislative), to issue permits and investigate violations (executive), and hear and decide disputes about violations (judicial). When an agency has a mix of legislative, executive and judicial functions it is harder to say how much control each branch ought to be able to exert over it.
Wallace v. Bone and other litigation
Fueled by the factors just discussed, skirmishes between the legislature and governor began breaking out in the late 1970s. Among the disputes:
- State senator I. Beverly Lake, Jr., (at the time a Democrat but later a Republican and later still chief justice) sued over the constitutionality of the Advisory Budget Commission (ABC), a powerful body — notwithstanding the misleading “advisory” in its title —responsible for preparing and overseeing the state budget. The ABC had eight legislators among its twelve members. Lake later withdrew his lawsuit.
- The General Assembly created a Rules Review Committee to examine and potentially suspend rules adopted by administrative agencies that exceeded their authority.
- A legislative committee took over the state employees’ health plan despite an opinion from Attorney General Rufus Edmisten that the move was unconstitutional.
- The new Joint Legislative Commission on Government Operations, created in the mid-1970s, required the governor to seek approval before transferring more than ten percent from any agency line item appropriation.