RALEIGH, N.C. (AP) — A panel of North Carolina judges appeared skeptical Tuesday that Republican legislators acted constitutionally by suddenly adopting a series of new laws undercutting the governor’s authority two weeks before the Democrat took over.
The three-judge panel spent five hours listening to lawyers for Gov. Roy Cooper and the state’s legislative leaders. The judges directed most of their questions at attorneys for state House Speaker Tim Moore and Senate leader Phil Berger.
Cooper is challenging laws giving the GOP-led Senate authority to approve or deny the governor’s picks for 10 state agencies, strip the governor’s power to run the state’s elections, slash by 70 percent the number of loyalists he can hire and extend civil service protections to hundreds of political appointees of former Republican Gov. Pat McCrory.
“Why was there a need to have a special-called session after the incumbent governor conceded his defeat and before a new governor of a different party took office?” asked the panel’s chairman, state Superior Court Judge Jesse Caldwell. “Why was there a need to enact, within a very short period of time, complex legislation which obviously had been worked on for months by somebody?”
The lawmakers’ attorneys argued that the General Assembly should dominate in North Carolina, in accordance with a state constitution that was intended give the legislative branch more power than the executive or judicial despite their separation of powers.
That’s why, they said, judges shouldn’t get mixed up in the political dogfight flowing from Cooper’s November election and the legislature’s actions in December
“This is a case about powerful people maneuvering for political advantage that masquerades as a separation of powers case. There’s nothing nefarious about that. That’s what political parties do. They try to take the most advantage they can of the situation to set things up in their favor,” said Noah Huffstetler, an attorney representing legislators. “It is a political question. Not one for resolution by the judicial branch.”
Cooper’s lawyers said the laws should be invalidated because they put a thumb on the balance of powers and make it difficult for the governor to carry out his duty to execute the state’s laws.
“You could even say this disenfranchises the electorate who elected this governor,” Judge L. Todd Burke offered, referring to the law allowing the Senate to veto the hiring of Cooper’s top aides.
Though three branches of government have existed in the constitutional text since North Carolina’s independence from Great Britain in 1776, for decades it was lawmakers who appointed the governor and selected the judges, Huffstetler said. The General Assembly has remained superior for centuries, he argued.
“My pastor, your honor, is fond of saying that not everything in the Bible has to be taken literally, but it has to be taken seriously. I think you could say much the same thing about the separation of powers clause,” Huffstetler said.
Meanwhile, Republican lawmakers seemed determined to continue diminishing Cooper’s authority.
Senate Republicans issued another subpoena to another department head Tuesday, voting along party lines to compel Department of Public Safety Secretary Erik Hooks to appear March 15 for a hearing into his fitness for the job.
Last week, the state House approved two bills in party-line votes that would eliminate Cooper’s ability to choose board members at more than a dozen community colleges. A separate bill was introduced to give legislators rather than Cooper the authority to fill vacancies on the state District Court, where most criminal and civil cases get heard.
The three-judge panel should complete its analysis and issue a ruling within days, Caldwell said.
“I think the court can always pull back the curtain,” Caldwell said. “Like the Wizard of Oz. Look at the man behind the curtain, with regard to a pretext” that masks the real reason a law is adopted.