Stein, GOP Lawmakers Take Separation-Of-Powers Fight To Top NC Court

By Carolina Journal

North Carolina’s highest court spent much of Tuesday afternoon tackling a separation-of-powers dispute pitting Democratic Gov. Josh Stein against top Republican legislative leaders.

Stein is challenging state laws that placed new restrictions on his power to fill statewide judicial vacancies and limited his appointments to multiple North Carolina boards and commissions.

The state Supreme Court combined arguments in cases known as Stein v. Berger and Stein v. Hall. The Democratic governor sued Senate Leader Phil Berger, R-Rockingham, and House Speaker Destin Hall, R-Caldwell.

Berger will be leaving the General Assembly at the end of the year after losing his primary election in March. Hall will be leaving the speaker’s job at the end of the year after Democrats won control of the state House of Representatives in last week’s election.

The court focused first on Stein’s challenge to laws that affected his power to appoint members to state boards and commissions.

“In each case, the governor lost control over the law’s execution, and the General Assembly took control — either directly or indirectly,” argued Eric Fletcher, the governor’s lawyer. “In each case, there is no elected Article III officer who can take care that the laws are faithfully executed.”

Top legislative leaders respond that Stein wants to be able to control state boards and commissions, not just appoint members.

“The actual text of the ‘takes care’ clause doesn’t get you to control,” argued lawyer Matthew Tilley. “There’s not an implied power of supervision.”

Justices Richard Dietz and Trey Allen led questions of both sets of lawyers during the discussion of boards and commissions.

“Do you think the General Assembly could pass a law that says that the superintendent of public instruction shall be the state’s top lawyer?” Dietz asked Tilley.

“The constitution is inherently anti-majoritarian,” Dietz said. “It’s designed so that we the people enshrine these protections. We don’t just go to the ballot box and decide whether or not we think that particular government officials are upholding their constitutional obligations. We can come to court and enforce our constitutional rights.”

The state constitution explicitly calls for a separation of government powers, Dietz said. “It just seems so obvious that if the legislature could appoint all the governor’s Cabinet officials and that no one but the legislature could remove them, that they’re wielding executive power there, which we the people just prohibited the legislature from ever doing.”

Allen also discussed the impact of a law allowing the General Assembly to approve and remove Cabinet members. “Isn’t he reduced to being sort of just a figurehead?”

“What’s the logical endpoint of endorsing your principle?” Allen asked Tilley.

“There is a limit, and the limit is accountability to the people,” Tilley responded.

Accountability cropped up again when Justice Tamara Barringer asked Tilley to respond to one of the governor’s arguments: A gerrymandered legislature blocks the public from stopping unconstitutional actions.

“We’re standing here a week after an election that changed control of at least one chamber of the General Assembly,” Tilley said. “I think if that were really a concern, that couldn’t happen.”

Dietz and Allen both peppered the governor’s lawyer with questions as well.

“I don’t understand why the governor is making such an aggressive argument here,” Dietz said. “Surely, the governor does not have power over public education, agriculture — all of the things we have said in these past cases.”

“If we take as true that all Council of State members have an obligation to take care that the laws are faithfully executed, then what is the constitutional problem with dividing appointments among them?” Allen asked.

Justice Allison Riggs questioned whether an implied obligation for other Council of State of members to execute laws could supersede the governor’s duty. “Doesn’t that unsettle almost everything about the structure and the textual reading of the constitution when it comes to the separation of powers?”

Stein’s lawyers filed a court document Monday citing four 19th-century precedent cases and a book from 1911 supporting the governor’s arguments about judicial vacancies.

The governor opposes a provision in 2024’s Senate Bill 382. It required Stein to fill a vacancy on the state Supreme Court or Court of Appeals by choosing one of three people recommended by the departing judge or justice’s political party.

An Oct. 30 brief amplified the governor’s objection to the judicial vacancies provision of SB 382.

“Senate Bill 382 attempts to force the Governor to fill appellate court vacancies with jurists selected by partisan political operatives,” Stein’s lawyers wrote. “[T]he plain text of Article IV, Section 19; history; and relevant precedent show that the Constitution prohibits the General Assembly from altering the process for filling appellate judicial vacancies. The Governor has therefore cleared the admittedly high bar this Court has set for constitutional challenges to legislative acts and has shown that the Judicial Vacancies Provision is unconstitutional.”

Each argument from state legislators “is easily refuted,” the governor’s lawyers added.

“First, because the Governor’s challenge succeeds under the applicable standard of review, Legislative Defendants try to fashion a new one,” according to Stein’s brief. “They say the Governor must identify a constitutional provision that forbids the General Assembly — by name — from acting. In other words, they argue the Constitution forbids legislation only when it uses phrasing like, ‘The General Assembly shall not. …” But that is not, and never has been, the law. Since this Court’s first act of judicial review, it has recognized that the Constitution can restrict the General Assembly expressly or by necessary implication.”

“Second, Legislative Defendants argue that the Governor’s facial challenge to the Judicial Vacancies Provision must fail because there might be times when the Governor likes the jurist who ultimately assumes the vacant office,” the brief added. “Legislative Defendants misunderstand the Governor’s argument. The Judicial Vacancies Provision is unconstitutional because, in all contexts, the legislature has asserted the authority to dictate the process to fill appellate vacancies, when our Constitution reserves appointment power to the Governor alone.”

“Finally, Legislative Defendants’ substantive defense of the Judicial Vacancies Provision is just as weak,” Stein’s lawyers argued. “They point to constitutional provisions and precedent that bolster the Governor’s position, not theirs. And they have no answer to 150 years of historical evidence supporting the Governor’s understanding of Article IV, Section 19 other than dubious speculation about legislative ‘indifference’ or ‘political cowardice.’”

A second Oct. 30 brief from the governor focused on board and commission appointments.

“Our Constitution creates a plural executive led by the Governor and composed of nine additional independently elected, distinct officers tasked with ensuring faithful execution of the law in their fields,” the brief explained. “Our Constitution’s framers included an explicit Separation of Powers Clause that prohibits the General Assembly from controlling how the law is executed or unreasonably disrupting the executive branch’s enforcement of the law.”

“[I]n the context of our plural executive, that Separation of Powers Clause compels a modest conclusion: a single executive officer (sometimes, but not always, the Governor) must have enough control over a body charged with the law’s execution to take care that the body faithfully enforces the law,” Stein’s lawyers argued.

“Legislative Defendants contend that the Governor aspires to a unitary executive,” the governor’s brief added. “But if anyone’s constitutional theory undermines our plural executive, it is Defendants’. In their view, legislative majorities in the General Assembly may freely select any combination of executive officials to execute any law, not the voters who elect the Governor and Council of State every four years. That is not a plural executive; it is European-style parliamentary government. Our Constitution’s framers were familiar with parliamentary systems and chose to reject them.”

Republican state legislative leaders filed an Oct. 30 brief rebutting Stein’s arguments about board and commission appointments.

“The Governor is right that the Court must act to protect the separation of powers,” legislative lawyers wrote. “But the violation it must protect against comes from McCrory and Cooper I, not the challenged legislation.”

“McCrory” and “Cooper I” refer to state Supreme Court decisions in 2016 and 2018 that favored the state’s previous two governors in separation-of-powers disputes with the General Assembly.

“By announcing a limit that appears nowhere in the Constitution, those decisions took away the People’s ability to structure State agencies as a check against unilateral executive power,” legislative lawyers argued. “Until McCrory, the People were free to allocate statutory appointments as they saw fit, assigning appointments in whatever combination they thought would best facilitate the policies reflected in the State’s laws.”

“Now they have been told that freedom is constrained — paradoxically — by a constitutional requirement that the Governor have ‘enough control’ over every board and commission to ensure it reflects his ‘views and priorities,’” the brief added. “The Governor defends that requirement in the name of accountability. But distributing appointments among multiple officials or expert groups is itself a form of accountability.”

“The Governor’s proposal that the Court infer a requirement that a single executive officer must always ‘control’ the membership of each statutory board and commission upends the system of checks and balances,” legislative lawyers wrote. “It limits legislative authority to protect a power neither the Governor nor the executive branch has ever had. And it leaves the Court to resolve policy questions that belong to the General Assembly. No provision of the State Constitution imposes such a rule.”

Stein attacked legislative leaders’ arguments earlier in October.

“Legislative Defendants devote very little of their brief to arguing that, under current law, the boards and commissions at the center of this appeal are constitutional,” Stein’s lawyers wrote in a brief. “And rightly so. Each one is flatly inconsistent with the separation of powers framework set forth in this Court’s prior opinions.”

“Instead, Legislative Defendants devote most of their brief to a collateral attack, invoking political question arguments previously rejected by this Court, and a frontal attack, asking this Court to overturn State ex rel. McCrory v. Berger … and Cooper v. Berger,” precedent cases from 2016 and 2018, the governor’s brief continued.

“Effectively, Legislative Defendants ask this Court for unconstrained — and, indeed, unreviewable — power to control the execution of the laws they adopt,” Stein’s lawyers wrote. “But the General Assembly is, in the words of inaugural Supreme Court Justice and revolutionary era leader James Iredell, a ‘creature of the constitution’ and thus has powers ‘limited and defined’ by that document.”

“The North Carolina Constitution and the structure of government that the people created through it does not grant unchecked, imbalanced, and unreviewable power to any branch,” Stein’s brief added.

State legislative leaders filed two briefs in early October.

One challenged Stein’s arguments about filling statewide judicial vacancies. The governor based his opposition to the change on Article IV, Section 19 of the state constitution. He labeled the targeted provision of SB 382 as unconstitutional on its face.

“[A]ppellate vacancies are still filled by appointment of the Governor, and nothing about the term of the appointed office changes,” legislative leaders’ lawyers wrote. “The Governor asks for more. He reads Section 19 not as a duty to fill a vacancy until the People can act for themselves, but as an exclusive power to install jurists who share his views and priorities — a power he says the General Assembly infringes by limiting his choice of nominees on political grounds.”

“In other words, the Governor would convert a duty of his office into an explicit check on the General Assembly’s plenary power to set qualifications for appointees or to define the pool from which he appoints,” lawmakers’ brief continued. “The constitutional text will not bear that weight, and the Governor’s arguments fall well short of overcoming the presumption of constitutionality and the demanding standard for a facial challenge.”

The second legislative brief rebutted Stein’s arguments about changes to his appointments to state boards and commissions. The governor objected to changes that shifted one or more of his appointments to other members of the elected Council of State. In each case, the Republican-led General Assembly shifted an appointment to a Republican member of that council.

“Contrary to the Governor’s claims, the Legislature’s changes to the seven boards and commissions upheld below do not violate the separation of powers,” legislators’ lawyers wrote.. “Nor do they reflect an effort to impose what the Governor calls ‘legislative tyranny.’ Instead, they represent a legitimate exercise of the General Assembly’s express and plenary power to organize — and reorganize — State agencies and assign duties among the independently elected constitutional officers who serve on the Council of State and comprise our State’s multi-member, ‘plural’ executive branch.”

“Indeed, the executive branch continues to hold a majority of appointments to each of the boards and commissions the Governor challenges at this stage of his appeal,” the brief continued.

“To succeed on a facial challenge, the Governor must show that an express provision of the Constitution explicitly prohibits the legislation at issue,” the legislative leaders argued. “But no provision of the Constitution prohibits the General Assembly from allocating statutory appointments between the Governor and other members of the Council of State. Nor does the Constitution require that the Governor hold a majority of the appointments over these boards and commissions.”

“To the contrary, the Constitution explicitly authorizes the General Assembly to assign duties to various members of the Council of State, to organize State agencies, and to prescribe the functions, powers, and duties they will perform,” the brief continued.

State Treasurer Brad Briner is defending a state law that shifted one of the governor’s three state Utilities Commission appointments to the treasurer. State legislators appoint the other two members of the five-member commission.

Both a three-judge trial court panel and the state Appeals Court upheld the shift of one Utilities Commission appointment to Briner.

“Governor Stein insists that Treasurer Briner cannot appoint a single one of the five members of the Utilities Commission,” Briner’s lawyers wrote in early October. “He believes that the Governor is the lone executive official who can make such an appointment. He asserts that the constitution requires gubernatorial domination of the Utilities Commission, and the General Assembly was wrong to empower the Treasurer to appoint one of its commissioners.”

“Nothing in our constitution says the Governor must control the Utilities Commission,” Briner’s brief continued. The state Supreme Court ruled in 2025 “that the constitution provides for three categories of executive powers: constitutionally assigned powers, powers assigned by law, and powers inherent in an executive office. Thus, for the Governor to have a constitutional right to control the Utilities Commission, he must show that his power to appoint the majority of the commissioners falls within one of these three categories. The Governor is unable to do so.”

Stein is asking the state Supreme Court “to embrace three novel principles to govern the diffusion of executive power under our constitution,” Briner’s lawyers wrote. “These principles, if accepted, would require this Court to hold that much of the current structure of the executive branch is unconstitutional. But each argument is flawed, so there is no need to inject chaos into the state’s laws.”

“First, the Governor insists that if a power is not inherent in the office of a member of the Council of State, then the power must be assigned to the Governor,” according to the treasurer’s brief. “This argument is an attempt to invert the Court’s [2025] decision in Stein v. Berger. This argument also contradicts the constitution’s express text, which empowers the legislature to prescribe the duties of the members of the Council of State. In other words, executive branch officials can be given any powers that are not inherent in another official’s office.”

“Second, the Governor argues that executive power cannot be split between two different members of the Council of State,” Briner’s lawyers wrote. “This argument is nothing but an attempt to backdoor the unitary executive theory of the United States Constitution into the North Carolina Constitution. North Carolina has consistently chosen a plural executive model in contrast to the federal Constitution’s unitary model.”

“Finally, the Governor tries to limit the legislature’s power to let a Council of State member appoint a member of a commission that is housed, for administrative convenience only, within a ‘cabinet’ department of the Governor,” the treasurer’s brief added. “This argument has no constitutional support. The constitution does not create a cabinet for the Governor to head at all; the so-called cabinet agencies are legislative creations. The constitution assigns the ultimate responsibility for structuring the executive branch to the legislature. That the legislature decided to administratively house the Utilities Commission within the Department of Commerce has no constitutional relevance.”

State Auditor Dave Boliek and Labor Commissioner Luke Farley, both Republicans, filed briefs in October supporting state legislators. Top lawmakers also atracted support from the North Carolina Home Builders Association, North Carolina Chamber Legal Institute, National Federal of Independent Business Small Business Legal Center, North Carolina Forestry Association, and the North Carolina Farm Bureau Federation.

The John Locke Foundation filed a separate amicus, or friend-of-the-court, brief in the case.

“Since the Auditor was established as a member of the Council of State, the Auditor’s roles and duties have expanded, as the General Assembly has exercised its constitutional authority to increase the Auditor’s role over time,” Boliek’s lawyers wrote.

“The central question here — whether intra-branch transfers among the Council of State of board-appointment power violate the North Carolina Constitution — therefore affects the Auditor and the other Council of State members as much as it affects the Treasurer, whose board-appointment powers are at issue in this case. The Auditor’s interest reflects his role as a Council of State member whose authority and responsibilities have increased over time through intra-branch transfers within the executive branch, and that interest extends to the Office of the Auditor as a whole, not just to Auditor Boliek.”

Boliek argued that the General Assembly has “both plenary power and express authority under Article III, Section 5(10) to reallocate appointment authority among members of the Council of State,” according to the court filing. “[N]either the Separation of Powers Clause nor the Take Care Clause constrains such intra-branch transfers.”

The auditor urged the state Supreme Court to “reject the Governor’s ‘major purposes’ theory, under which the legislature could assign an officer a new duty only if it was sufficiently related to a ‘major purpose’ of that office,” according to his court filing. “The Auditor shows that this theory cannot be reconciled with Article III, Section 11 and would require courts to resolve questions that are both practically unworkable and inherently nonjusticiable.”

“The history of the Auditor’s own office — whose duties have never been tethered to a fixed understanding of what an ‘auditor’ must do — provides a concrete, real-world illustration of the General Assembly’s longstanding reorganization authority that is not otherwise squarely before the Court.”

Though it’s not before the state Supreme Court, Boliek and state lawmakers won a similar court fight against Stein at the state Appeals Court in September. That court ruled, 2-1, that the General Assembly could shift appointments of state and local election boards from the governor to the auditor. Stein has appealed that ruling

Farley’s court filing explained his interest in the case.

“As the head of an executive department with newly assigned appointment authorities and responsibilities, Commissioner Farley has an official interest in the proper interpretation of Article III, the distribution of executive authority among independently elected officers, and the constitutional limits on legislative appointment authority,” his lawyer wrote.

“Commissioner Farley supports the Legislative Defendant-Appellants/Appellees’ position that Article III does not reserve exclusive control over executive functions to the Governor, that appointment authority is distinct from executive control, and that the challenged provisions do not impermissibly vest control over the execution of the laws in the General Assembly,” the labor commissioner’s court filing added.

The NC Chamber and other groups “represent businesses throughout North Carolina and are well positioned to explain the challenges our business community has faced from the legal battles between the Governor and the General Assembly over the validity of regulatory agencies,” according to their court filing. “The business community asks the Court to issue a ruling that would put an end to the perennial intra-government litigation.”

The businesses have experience with regulatory agencies involved in the two Supreme Court cases. “Based on their experiences with these agencies, amici curiae have a unique view as to how the General Assembly’s chosen structuring of the boards and commissions will provide their members with greater voices in the regulations that impact their operations,” according the court filing.

The business groups’ amicus brief “advocates for the Court to issue a ruling that clearly defines the powers of the executive and legislative branches, in hopes of ending the recurring litigation over the constitutionality of the composition of regulatory agencies,” the court filing explained. “The brief points out that the General Assembly, in designing the boards and commissions at issue, has chosen structures that require consensus building among various stakeholders — which makes regulatory agencies better reflect the will of the people and, thereby, promotes the ideal of self-governance. Finally, the brief defends the constitutionality of a Residential Code Council to which the Governor appoints 7 of the 13 members.”

All five living former North Carolina governors back Stein in his court battle with top legislative leaders and Briner.

Democrats Mike Easley, Bev Perdue, and Roy Cooper joined Republicans Jim Martin and Pat McCrory in filing a friend-of-the-court brief in September supporting Stein.

“The former Governors of North Carolina have a strong interest in these cases: their interest in preserving the executive power, status, and dignity that the Constitution confers on the Office of the Governor,” according to a court filing.

“Other than Governor Stein, they are the only five living individuals who have been entrusted with the State’s executive power … and served as ‘our state’s chief executive,’” the document continued. “That unique, shared experience, spanning from 1985 to 2024, has given the former Governors a deep understanding of how the separation of powers works in the real world.”

“Although the former Governors’ affiliation is bipartisan (two Republican and three Democratic former Governors), their interest is nonpartisan,” the former governors argued. “After all, these cases are about the separation of powers — a bedrock constitutional principle that transcends politics.”

“The former Governors strongly agree with Governor Stein on the merits of these cases,” the document added. “But as a threshold issue, the former Governors wish to emphasize the need for the Court to actually decide these cases on the merits — something that the Legislative Defendants and the State Treasurer are asking this Court not to do.”

The former governors argue that the “political question” argument supported by top lawmakers and Briner “should fail here.”

The political-question doctrine suggests that courts should avoid addressing constitutional disputes that should be settled instead by government’s executive or legislative branches.

“[I]nvoking the political-question doctrine in these cases is not only inconsistent with this Court’s history, but it would allow for an entirely different level of mischief between our branches of government,” the former governors’ court filing asserted.

“[T]his Court should decide these cases on the merits, rather than relinquish its judicial power and allow the General Assembly to become the final judge of whether it can take the Governor’s executive power,” the document continued.

The former governors filed their court document a day after University of North Carolina constitutional scholar John Orth filed a request to support Stein on the issue of filling judicial vacancies.

Stein and North Carolina legislative leaders offered the first glimpse on Sept. 2 at arguments they will make when they square off at the state’s highest court in November.

“Article IV of our Constitution erects different regimes for filling vacancies in different judicial offices,” Stein’s lawyers wrote in a brief focusing on judicial vacancies. “The General Assembly may prescribe the process for filling vacancies in some offices, like Magistrates and District Court, Special Superior Court, and Emergency Judges. But for vacancies in other judicial offices, including the Judges and Justices of our Court of Appeals and Supreme Court, the plain text of the Constitution gives the Governor exclusive appointment power and explicitly prohibits the General Assembly from prescribing a different process.”

“That is why in their seminal treatise on the North Carolina Constitution, Chief Justice [Paul] Newby and Professor Orth explain that the Constitution gives the Governor an ‘unfettered power of appointment’ for appellate judicial vacancies,” the court filing continued. Newby is one of the justices who will decide the current dispute.

“Notwithstanding the plain text and well-settled understanding of Article IV, shortly after voters elected Josh Stein Governor, a lame duck General Assembly chose to simply ignore the Constitution and enact a law that forces the Governor to fill appellate court vacancies with judges selected not by him, but by unelected political operatives,” Stein’s lawyers wrote.

The disputed law, Senate Bill 382 from 2024, requires Stein to replace a departing judge or justice with one of three names recommended by that jurist’s political party.

A three-judge panel blocked the change, ruling that it “facially violates Article IV, Section 19,” Stein’s lawyers explained. The state Court of Appeals reversed that ruling.

“The Court of Appeals erred,” Stein’s lawyers argued. “The majority decision failed to honor the framers’ deliberate choice to allow the General Assembly to set the process for filling some judicial vacancies but give the Governor the exclusive power to fill others.”

Stein filed a separate brief focusing on appointments to state boards and commissions.

“The Governor’s appeal raises two issues of first impression challenging the ‘complicated and indirect measures’ that the General Assembly has enacted to increase legislative control over the execution of laws,” Stein’s lawyers wrote.

“First, is the Governor’s executive power fungible with the executive power belonging to other members of the Council of State?” the brief explained. “For four of the boards and commissions at issue in this appeal, all of which are housed in departments led by the Governor’s Cabinet, Legislative Defendants have provided the executive branch with appointment, supervision, and removal power over a majority of members, but no single executive has control.”

“Legislative Defendants have assigned a near-majority of appointments to themselves and transferred some of the Governor’s appointments to Council of State members aligned politically with the legislative majority,” Stein’s lawyers argued. “This design is plainly intended to ensure that executive branch agencies are controlled by a cumulative majority of legislative appointees and allies.”

“Importantly, the General Assembly claims that nothing in our Constitution limits this tactic,” the governor’s lawyers continued. “The General Assembly, in its view, can at any time — even in the lame duck period after an election — change the makeup of a board or commission implementing the substantive law. This gives the General Assembly control over the law’s execution and the ability to substitute its choice over the people’s choice of executive policymaker.”

“Second, may the General Assembly frustrate the execution of the laws by depriving an executive council of the ability to affirmatively act without the cooperation of legislative appointees?” Stein’s brief continued. “For the Residential Code Council and Building Code Council, the legislature has done just that by requiring a supermajority of nine votes for any action to occur.”

“Such a rule would perhaps be permissible if an executive branch official appointed the full supermajority required to act,” the governor’s lawyers argued. “But the Governor — the only executive with appointment, supervision, and removal power over appointees — is limited to only seven appointees (not to mention being further constrained by legislative confirmation of his appointees and for-cause removal restrictions). The Governor thus cannot cause these Councils to act — potentially rendering them inoperable and unable to execute the law.”

The state Court of Appeals upheld appointments changes to some boards and commissions, while striking down others.

Stein’s brief warned that legislative leaders “have already used the lower court’s rulings as approval to continue their effort to control not only the enactment of laws, but also their execution.” The brief cited recent legislation restructuring 13 additional boards and commissions not covered in the Stein v. Berger and Stein v. Hall cases.

“This Court should put an end to this unconstitutional escapade,” Stein’s lawyers argued. “Our Constitution’s guarantee of separation of powers prevents the General Assembly from controlling the execution of the laws it enacts, whether through its direct appointments or those indirectly selected through politically aligned Council of State members.”

“Legislative Defendants have broken the chain of accountability that is supposed to extend from the people to their elected executive officials by diffusing control in a variety of ways ultimately designed to increase legislative power over the execution of law,” the governor’s brief continued. “This is not the structure and separation of powers that the framers intended, and this Court should reject it.”

While Stein focused his opening briefs on judicial vacancies and board appointment changes upheld in lower courts, Republican legislative leaders used their opening brief to address appointment changes rejected at the state Appeals Court. That court struck down laws changing the makeup of the Commission for Public Health, Board of Transportation, and Economic Investment Committee.

“This case presents a straightforward question: Does the North Carolina Constitution require that the Governor control a majority of appointments to every statutory board and commission created by the General Assembly? The answer is no,” legislative lawyers wrote.

“No provision of the State Constitution expressly prohibits the General Assembly from allocating appointments to statutory boards and commissions as it deems most appropriate — including by retaining some or all of those appointments for itself,” lawmakers’ brief continued. “Yet that is precisely what the Court of Appeals held below, relying on this Court’s split decisions in State ex rel. McCrory v. Berger … and Cooper v. Berger.”

The state Supreme Court decided those cases in favor of previous Govs. Pat McCrory and Roy Cooper in 2016 and 2018.

“Those decisions were wrongly decided and should be overruled,” legislative lawyers argued. “McCrory and Cooper I departed from constitutional text, history, and more than a century of precedent to conjure a new gubernatorial power not found anywhere in the Constitution — the power to make ‘executive policy.’”

The decisions transformed a constitutional provision — the “Take Care Clause” — “from a duty that requires the Governor to follow the law, into a sweeping grant of power that requires he be given ‘enough control’ over every board and commission to ensure it carries out his ‘policy preferences,’” according to the legislators’ brief. “But the Constitution assigns policymaking authority to the General Assembly, not the Governor.”

“And for more than a hundred years, this Court held that appointment is merely ‘a mode of filling the offices created by law’ — not an exercise of the office’s power or control over the appointee,” the brief continued. “The decision how to allocate appointments to statutory boards and commissions — and what mix of perspectives will best ensure that boards and commissions carry out the policies reflected in the State’s laws — is thus a decision that should be left to the People, acting through their representatives in the General Assembly.”