Former McCrory attorney: Proposed NC amendment “destructive” to our state

Bob Stephens
Bob Stephens

The writer is former general counsel to Gov. Pat McCrory:

Most people don’t know that if one of the proposed amendments to our Constitution which will appear on the November ballot is passed, it would cause a seismic shift in power in our state government - one of the biggest shifts since the Civil War and possibly one of the most destructive. It would change the way laws are enforced in North Carolina and who would enforce them.

Here’s the proposal I’m talking about and how it will look like on the ballot:

“Constitutional amendment to establish a bipartisan Board of Ethics and Elections to administer ethics and election laws, to clarify the appointment authority of the Legislative and the Judicial Branches and to prohibit legislators from serving on boards and commissions exercising executive or judicial authority.”

Looks pretty good doesn’t it? Simple. Innocuous. The problem is that this amendment is none of those. In it’s entirety, it’s just plain wrongheaded.

Why? To answer that question, you have to first understand that the ballot language doesn’t fully explain the proposed amendment. What is also in the amendment but which will not show up on the ballot is this language:

“The legislative powers of the State government shall control the powers, duties, responsibilities, appointments, and terms of office of any board or commission prescribed by general law.”

That sounds pretty innocuous too but most assuredly it is not. The legislature does not now have, and should not now have, control over appointments to boards and commissions which enforce our laws, at least not all appointments or appointments under any circumstances. For good reason, that power belongs to the Governor.

In keeping with the doctrine of separation of powers, our Constitution requires the Governor to faithfully execute the laws. One of the ways to do that is through making appointments of people to the numerous boards and commissions that carry out and enforce the laws. The proposed amendment would give the legislature the power to appoint the people who carry out the laws, a right it does not now have or should have. Once a law is passed, the legislature’s participation in that law ends .... as it should. The legislature shouldn’t thereafter have the right to carry out the law as it sees fit or interfere with the Governor when he or she does so.

What is particularly frustrating about this amendment is that the legislature has tried before to transfer appointment powers from the Governor to itself. In 2014, the legislature tried to create three boards with the majority of the members of those boards being appointed by the legislature. Then Governor Pat McCrory and former Governors Jim Martin and Jim Hunt joined together in a lawsuit entitled McCrory v. Berger, et al to sue the legislature over this law, and the Governors won. In a near unanimous decision, the NC Supreme Court declared that the law in question violated the separation of powers principle in our Constitution and struck it down.

Don’t be fooled. Preserving the principle of separation of powers and the checks and balances it offers is too important. I am pleased that my former boss, Governor McCrory, and Governor Martin have already forcefully spoken out in opposition to this power grab by the legislature.

I hope the voters will too in November.