371 N.C. 799
N.C.2018Background
- Governor Roy Cooper challenged N.C.G.S. § 143B-9(a), which requires North Carolina Senate confirmation of gubernatorial nominees to the Governor’s Cabinet (statutory department heads).
- Cabinet secretaries are statutory officers created by Chapter 143B; the statute gives the Governor the power to nominate, supervise, and remove them, but conditions appointment on "senatorial advice and consent."
- Cooper brought a facial challenge arguing the confirmation requirement violates the state separation of powers and appointments provisions.
- A three-judge superior court granted summary judgment for the legislature; the Court of Appeals affirmed; the Supreme Court granted review.
- The central legal question: whether senatorial confirmation meaningfully impairs the Governor’s constitutional duty to "take care that the laws be faithfully executed."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether senatorial confirmation of Cabinet secretaries violates separation of powers | Berger/Legislature’s confirmation power unduly encroaches on the Governor’s executive control and undermines the take-care clause | Senate’s advice-and-consent is permissible for statutory officers; the Governor retains nomination, supervisory, and removal powers | No violation — confirmation of statutory Cabinet nominees is constitutional when Governor retains nomination, supervision, and at‑will removal |
| Whether the appointments clause or other constitutional text implicitly prohibits legislative confirmation of statutory officers (expressio unius) | The Constitution’s mention of legislative confirmation in limited provisions implies prohibition elsewhere | The Constitution’s silence on statutory officers leaves appointment methods to the legislature; expressio unius does not bar confirmation | Expressio unius argument rejected; silence means no constitutional prohibition on legislative confirmation of statutory officers |
| Whether the per se rule from Wallace (legislators exercising executive power) applies | Plaintiff contends Wallace prohibits legislative appointment/confirmation that affects executive functions | Defendants argue Wallace applies only where legislators exercise exclusive executive power; statutory appointments differ | Wallace’s per se bar inapplicable here because Cabinet heads are statutory officers and confirmation does not transfer exclusive executive power |
| Whether statutory language "in conformance with" Article III, §5(8) saves or invalidates §143B-9(a) | Plaintiff: phrase improperly invokes appointments clause that governs constitutional officers only | Defendants: phrase only mirrors the majority-of-Senators rule; statute valid irrespective of cited constitutional source | Phrase upheld as procedural mirror; statute valid because General Assembly may lawfully require confirmation of statutory officers |
Key Cases Cited
- State ex rel. Wallace v. Bone, 304 N.C. 591 (N.C. 1982) (per se separation‑of‑powers rule: legislators may not exercise exclusive executive functions)
- State ex rel. McCrory v. Berger, 368 N.C. 633 (N.C. 2016) (functional test: evaluate Governor’s appointment, supervision, and removal powers to assess separation‑of‑powers challenges)
- In re Spivey, 345 N.C. 404 (N.C. 1997) (use of expressio unius to infer absence of impeachment‑removal requirement where constitution is silent)
- Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs, 363 N.C. 500 (N.C. 2009) (facial‑challenge standard: high bar; statute presumed constitutional)
- Cunningham v. Sprinkle, 124 N.C. 638 (N.C. 1899) (appointment to statutory offices is a mode of filling offices, not an exclusively executive prerogative)
- Myers v. United States, 272 U.S. 52 (U.S. 1926) (historical discussion of nomination vs. confirmation; nomination is chief executive’s primary selection power)