NC appeals court: Lawmakers can OK governor’s top aides

Published 11:22 am Tuesday, November 7, 2017

RALEIGH — North Carolina lawmakers have the power to give themselves the last word on confirming Gov. Roy Cooper’s Cabinet secretaries, a state appeals court agreed Tuesday.

The state Court of Appeals ruled that a lower court properly rejected Cooper’s challenge to a new law passed weeks after his election last year. The new Democratic governor had argued that the Republican-dominated General Assembly was violating the state Constitution’s separation of powers between the two government institutions.

The appeals court agreed that legislators have the power of “advice and consent” over the governor’s picks to head state agencies under his control, which is similar to Congress’s role in reviewing the president’s picks for top posts. The state Senate unanimously confirmed all eight of Cooper’s cabinet secretaries this year.

“Separation of powers does not otherwise prohibit “advice and consent” being applied to gubernatorial appointees over agencies the General Assembly created, and which agencies can be amended or repealed by statute,” the three-judge appeals panel wrote in a ruling they delivered as a group.

“They essentially kicked it upstairs to the Supreme Court,” Cooper said, indicating he would appeal again. Although the high-court justices aren’t required to consider his challenge, he said “we believe that these arguments are sound and that these laws will end up being declared unconstitutional by the state Supreme Court.”

Top legislative Republicans called on Cooper to accept Tuesday’s ruling and end his lawsuit.

“It is in the people’s interest for their elected representatives to conduct a fair, constitutional and transparent review of the governor’s cabinet secretaries,” House Speaker Tim Moore and Senate leader Phil Berger, who defended the law in court, said in a statement.

Cooper also has sued to block several laws the Republican-controlled legislature approved last December that reduce or check his powers, and which Cooper contends erode his ability to perform his constitutional duties:

— limiting Cooper’s authority in carrying out elections while increasing GOP oversight.

— giving civil service job protections to hundreds of former Republican Gov. Pat McCrory’s political appointees.

— cutting the governor’s powers to appoint Court of Appeals judges and members of board and commissions.

— requiring Cooper to include money in his future budget proposals for taxpayer-funded scholarships for private school tuition, which the governor opposes.