America's political system: Who should check, who should balance?

North Carolina's legislature has asserted its authority over the incoming governor, while in Washington the executive branch has steadily increased its power – to the detriment of Congress.

Chris Seward/The News & Observer via AP
A three-judge panel of L. Todd Burke (l.), Jesse B. Caldwell (c.), and Jeffery B. Foster (r.) confer in a case where Democratic Gov. Roy Cooper is challenging the General Assembly's authority to oversee some state agency's powers and appointments during a hearing held at a Campbell Law School courtroom in Raleigh, N.C. on Tuesday, March 7, 2017.

North Carolina’s governor has called it an “ominous” and “partisan” power grab. Before the Democratic governor took office earlier this year, the Republican-led legislature stripped him of an array of powers.

But shift the setting to Washington, and the opposite is true. There, the executive branch – headed by successive presidents who have liberally used executive action to get things done and presided over an expanding range of federal agencies – has steadily eroded the power of Congress.

Between Washington and Raleigh, N.C., is a debate that is increasingly rippling across American politics: Where should the lines of the nation’s checks and balances be drawn?

For decades, the president’s authority has increased as power has flowed to his ability to make quicker and more decisive decisions. The same trend has been less apparent in states, where governors have more checks on their power. And in North Carolina, critics say, the legislative revolt is nothing more than a thinly veiled partisan power grab, not an honest attempt to balance government.

But by taking his case before a panel of state judges Tuesday, Gov. Roy Cooper has forced the court to make an intriguing decision. At a time when the issue is vexing the country, the judiciary will get a chance to weigh in.

“We are figuring out what not only the boundaries of power are, but what are the basic norms of governing?” says Michael Gerhardt, a constitutional law professor at the University of North Carolina in Chapel Hill.

The battle over the separation of powers in North Carolina in recent decades has at times taken on the appearance of a steel-cage wrestling match. In one particularly gruesome episode, the Democratic governor in 1969 fired 169 Republican staffers in what came to be known as the “Christmas Massacre.”

So Republicans claimed it was business as usual late last year when they stripped the incoming governor of key appointment powers, asserted oversight of his picks for 10 state agencies, and extended civil service protections to the appointees of the outgoing Republican governor.

One state lawmaker, House Rules Committee Chairman David Lewis (R), called it a bid by the General Assembly to “reassert its constitutional authority” over the executive branch.

But Superior Court Judge Jesse Caldwell raised questions about the lawmakers’ intent. “I think the court can always pull back the curtain,” he said. “Like the Wizard of Oz. Look at the man behind the curtain, with regard to a pretext” that masks the actual reason a law is adopted.

After all, Republicans did not complain about gubernatorial overreach when fellow Republican Pat McCrory was governor. It was only after he lost his reelection bid in November that they called a special session to pass the new legislation.

“If elections are to matter, which is something we’ve heard from Republicans, then they ought to matter to Democrats, too,” Professor Gerhardt says. “One of the more common things [being] said is, ‘Well, the other side did this, and we’re going to do it back.’ That seems a very poor excuse for governance.”

In general, rampant executive power is not as acute an issue at the state level as it is in Washington. In Mississippi, for instance, a bid last month to give the constitutionally weak governor’s office control of the Department of Mental Health failed.

“Understand it’s not about this governor, who we all kind of like, it’s about the next governor and the governor after that,” said state Rep. Toby Barker said.

A 2006 study by Yale University also concluded that governors’ powers were reined in by state attorneys general, who are independent of the executive branch in almost every state. In the federal government, the president picks his attorney general.

“The model of an independent attorney general has proved both workable and effective in providing an intrabranch check on state executive power,” a summary of the study in the Yale Law Journal states.

In North Carolina, there is little sign of either side stepping down. Last week, Republicans introduced legislation that would limit the governor’s ability to pick board members of community colleges and would give lawmakers, not the governor, authority to fill vacancies on the state's District Court, where most criminal and civil cases are heard.

Separation of powers lawsuits in the state date back to the early 1970s, when the legislature began creating deeper bureaucracies to carry out policies. Fights arose over who had access to the levers of power within those agencies. That’s why the legislature attacking Cooper’s appointment powers struck such a chord.

“This is how the tensions between the different branches of government play out, especially when things are new,” says Martin Kifer, director of the High Point University Survey Research Center. “And you see it at the national level, too, with a new Republican president, a Republican assembly, and Democrats trying to figure out what, if any, role they’ve got in policymaking.”

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