ROY A. COOPER, III, in his official capacity as Governor of the State of North Carolina v. PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of the North Carolina House of Representatives
No. 409PA17
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 21 December 2018
807 S.E.2d 176
On discretionary review pursuant to
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F.E. Smith, Jim W. Phillips, Jr., and Eric M. David, for plaintiff-appellant.
Nelson Mullins Riley & Scarborough LLP, by D. Martin Warf, Noah H. Huffstetler, III, and Candace Friel, for defendant-appellees.
The Governor is our state‘s chief executive. He or she bears the ultimate responsibility of ensuring that our laws are properly enforced. See State ex rel. McCrory v. Berger, 368 N.C. 633, 635, 781 S.E.2d 248, 250 (2016). Indeed, the Constitution of North Carolina enshrines this executive duty: “The Governor shall take care that the laws be faithfully executed.”
But the Governor is not alone in this task. Our state constitution establishes nine other offices in the executive branch. See
To further assist the executive branch in fulfilling its purpose, our constitution requires the General Assembly to “prescribe the functions, powers, and duties of the administrative departments and agencies of the State.”
In this case, plaintiff Roy A. Cooper, III, the Governor of North Carolina, challenges the appointments provision of
We hold that senatorial confirmation of the members of the Governor‘s Cabinet does not violate the separation of powers clause when, as is the case here, the Governor retains the power to nominate them, has strong supervisory authority over them, and has the power to remove them at will. The Governor‘s power to nominate is significant, and the ultimate appointee will be a person that he alone has chosen, subject only to an up-or-down vote by the Senate. The Governor‘s supervisory and removal powers, moreover, ensure that the Governor retains ample post-appointment control over how his Cabinet members perform their duties. As a result, subsection 143B-9(a)‘s senatorial confirmation requirement leaves the Governor with enough control to take care that the laws be faithfully executed, and therefore does not violate the separation of powers clause.
I
The heads of these departments—i.e., the members of the Governor‘s Cabinet—are statutory officers; they hold offices created by statute. See, e.g.,
Other provisions of Chapter 143B address the Governor‘s ability to supervise and remove Cabinet members.
A divided three-judge panel of the superior court determined that the appointments process in subsection 143B-9(a) does not violate the constitution and granted summary judgment to defendants. Plaintiff appealed this decision to the Court of Appeals. On 7 November 2017, the Court of Appeals issued a per curiam opinion affirming the trial court‘s decision. Cooper v. Berger, ___ N.C. App. ___, ___, 807 S.E.2d 176, 181-82 (2017) (per curiam). Plaintiff then filed a notice of appeal of a substantial constitutional question pursuant to
II
North Carolina courts have the power and the duty to determine whether challenged acts of the General Assembly violate the constitution. Bayard v. Singleton, 1 N.C. (Mart.) 5, 6-7 (1787). This Court interprets the provisions of the Constitution of North Carolina with finality. E.g., McCrory, 368 N.C. at 638, 781 S.E.2d at 252; Hart v. State, 368 N.C. 122, 130, 774 S.E.2d 281, 287 (2015). We review constitutional questions de novo. Piedmont Triad Reg‘l Water Auth. v. Sumner Hills, Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).
Plaintiff alleges that the Senate‘s “authority to approve, or disapprove, the persons selected by the Governor to serve” as Cabinet members pursuant to subsection 143B-9(a) “improperly encroaches upon the Governor‘s constitutional authority.” In his own words, plaintiff‘s challenge pertains to “the structure created by” subsection 143B-9(a) and to the degree of control that subsection 143B-9(a) allows the Senate to exercise, “not [to] whether the [Senate] actually exerted that control.” Cf. McCrory, 368 N.C. at 647, 781 S.E.2d at 257 (indicating that, when legislative involvement in the appointment of executive officers is at issue, the separation of powers clause requires this Court to evaluate how much control the legislation in question ”allows the General Assembly to exert over the execution of the laws” (emphasis added)). Plaintiff‘s challenge thus amounts to a facial challenge to the constitutionality of
When reviewing an act of the General Assembly, we presume that the act is constitutional, and we will declare it invalid only if it violates the constitution beyond a reasonable doubt. Id. at 131, 774 S.E.2d at 287-88 (citing Baker v. Martin, 330 N.C. 331, 334-35, 410 S.E.2d 887, 889 (1991)). “[A] facial challenge to the constitutionality of an
A
The separation of powers clause states that “[t]he legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct from each other.”
In State ex rel. Wallace v. Bone, for example, we considered the constitutionality of a law providing for the appointment of four sitting legislators to the North Carolina Environmental Management Commission (EMC). Id. at 591-92, 606-07, 286 S.E.2d at 79, 87. The General Assembly created the EMC as a commission of one of the Cabinet agencies and tasked it with “promulgat[ing] rules and regulations” aimed at protecting our state‘s water and air. Id. at 607, 286 S.E.2d at 87-88. The EMC‘s powers included “grant[ing] and revok[ing] permits,” investigating regulatory violations, and “issu[ing] special orders pursuant to certain statutes to any person whom the commission finds responsible” for regulatory violations. Id. at 607, 286 S.E.2d at 88. This Court found it “crystal clear” that the EMC‘s functions and duties were “administrative or executive in character.” Id. at 608, 286 S.E.2d at 88. We held that the General Assembly “cannot constitutionally create a special instrumentality of government to implement specific legislation and then retain some control over the process of implementation by appointing legislators to the governing body of the instrumentality.” Id. (emphasis added). In other words, legislators were wielding executive power, which violated the per se rule prohibiting one branch of government from exercising powers vested exclusively in another branch.
In this case, though, the per se rule from Wallace does not apply. As we held in McCrory, the appointments clause “authorizes the Governor to appoint all constitutional officers whose appointments are not otherwise provided for by the constitution.” 368 N.C. at 644, 781 S.E.2d at 255 (emphasis added). The appointments clause therefore does not prohibit the General Assembly from appointing, or from confirming the nominations of, statutory officers. See id.4 And this Court has long held “that appointing statutory
Cabinet members are statutory officers. Their existence stems directly from the Executive Organization Act of 1973, codified in Chapter 143B of our General Statutes, not from any provision of the constitution. It follows that the appointments process in subsection 143B-9(a), which governs the appointments of these statutory officers, does not violate the per se Wallace rule.
B
Next, we must address whether the challenged process satisfies the functional separation of powers test set forth in McCrory—which, unlike Wallace‘s per se rule, is a question of degree. Cf. McCrory, 368 N.C. at 646-47, 781 S.E.2d at 257 (“We cannot adopt a categorical rule that would resolve every separation of powers challenge to the legislative appointment of executive officers. . . . [W]e must examine the degree of control that the challenged legislation allows the General Assembly to exert over the execution of the laws.” (emphases added)). When the challenge involves the Governor‘s constitutional authority, we must ask “whether the actions of a coordinate branch ‘unreasonably disrupt a core power of the executive.’ ” Id. at 645, 781 S.E.2d at 256 (quoting Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854 (2001)).
Our constitution gives the Governor the power and the duty to “take care that the laws be faithfully executed.”
As we have previously indicated, the degree of control that the Governor has over executive officers can be measured by considering “his ability to appoint [them], to supervise their day-to-day activities, and to remove them from office.” Id. at 646, 781 S.E.2d at 256. In McCrory, we considered the balance between these factors within the statutory frameworks of three administrative commissions. See id. at 636, 781 S.E.2d at 250. In each framework, the General Assembly had granted itself the majority of appointments on the commission in question, had insulated the commission from gubernatorial supervision, and had allowed the Governor to remove commissioners only for cause. Id. at 646, 781 S.E.2d at 256-57. These frameworks, we noted, “le[ft] the Governor with little control over the views and priorities of the officers that the General Assembly appoints” and enabled “the General Assembly . . . [to] exert most of the control over . . . executive policy . . . in any area of the law that the commission[s] regulate[d].” Id. at 647, 781 S.E.2d at 257. We therefore found that the provisions challenged there violated the separation of powers clause. See id.
Turning to the facts of this case, we first acknowledge that the officers at issue here are not just members of administrative commissions; they are the heads of entire administrative
So the authority of these appointees is undoubtedly substantial. But a faithful application of the three-factor test set forth in McCrory shows that the Governor retains enough control over them to perform his constitutional duties. In short, senatorial confirmation of Cabinet members does not unconstitutionally impede the Governor‘s power and duty under the take care clause because the Governor still has the power to nominate them, has strong supervisory authority over them, and has the power to remove them at will.
With respect to the first McCrory factor, senatorial confirmation curtails the Governor‘s appointment power only minimally. As Federalist 76 suggests, the power to nominate is superior to the power to confirm. “In the act of nomination, [the chief executive‘s] judgment alone would be exercised. . . .” The Federalist No. 76 (Alexander Hamilton); see also Myers v. United States, 272 U.S. 52, 121, 47 S. Ct. 21, 27 (1926) (observing that, in the federal model, the Senate‘s rejection of a nominee “does not greatly embarrass [the President] in the conscientious discharge of his high duties in the selection of those who are to aid him, because the President usually has an ample field from which to select for office, according to his preference, competent and capable men“). The universe of people from whom the Governor may choose is open—he may nominate any eligible person to serve as a member of his Cabinet. In granting the Senate the power to confirm Cabinet nominees, the General Assembly has undoubtedly granted the Senate some piece of the appointment power. But the Governor retains the most important role in the process: the ability to choose, from the universe of all eligible people, the person on whom the Senate will have an up-or-down vote.
This arrangement starkly contrasts with the statutory frameworks at issue in our recent separation-of-powers-clause decisions. In McCrory, we struck down legislation in which the General Assembly had granted itself the unilateral authority to appoint a majority of the commissioners on each of the commissions at issue. 368 N.C. at 637, 781 S.E.2d at 251. And in Cooper v. Berger, we rejected a framework in which the Governor had to choose his appointees from two short lists prepared “by the State party chair[s] of the two political parties with the highest number of registered affiliates,” with an equal number of members to be drawn from each list. 370 N.C. 392, 396, 809 S.E.2d 98, 101 (2018). Here, the Governor may select his nominees from a virtually unlimited pool of qualified people.
With respect to the second McCrory factor, moreover, the Governor‘s supervisory powers augment his control over the views and priorities of his Cabinet members. The Governor is ultimately “responsible for formulating and administering the policies of the executive branch of the State government.”
Finally, with respect to the third McCrory factor, members of the Governor‘s Cabinet “serve at the Governor‘s pleasure,”
In light of the Governor‘s broad power to supervise and remove his Cabinet members, and in light of the open universe from which the Governor may select his Cabinet nominees, the confirmation power gives the Senate little ability to determine who will be executing the law or how they will do so. Once confirmed, Cabinet members are—to the extent that they are subject to control by another government official—subject to complete control by the Governor. It follows that any effort by the Senate to block one qualified nominee in the hopes that the Governor would then nominate someone who shares the views and priorities of a majority of senators (assuming that the views and priorities of a majority of senators differ from those of the Governor) would likely be futile. Thus, although the Governor does not have sole appointment power under subsection 143B-9(a), he has immense influence over who serves in his Cabinet and over what his Cabinet members do. More fundamentally, he retains enough control over the members of his Cabinet to take care that the laws be faithfully executed.
Applying these factors to the statutory scheme as a whole, we hold that senatorial confirmation of the Governor‘s Cabinet nominees does not unconstitutionally impede the Governor‘s ability to take care that the laws be faithfully executed.
III
Plaintiff makes four additional arguments to support his contention that senatorial confirmation of Cabinet members is unconstitutional. Although these arguments deal with many of the same concepts as separation-of-powers-clause challenges do, they do not themselves arise out of the separation of powers clause. Instead, they purport to use methods of constitutional construction, or methods of construction that apply to legal texts more broadly, to establish the unconstitutionality of subsection 143B-9(a)‘s appointments process.
Each argument revolves, in one way or another, around two constitutional provisions that specify some form of legislative confirmation of gubernatorial appointees. First, plaintiff cites the appointments clause, which requires constitutional officers whose appointments are not otherwise provided for by the constitution to be nominated by the Governor and confirmed by a majority of the Senate.
“Under the doctrine of expressio unius est exclusio alterius, when a statute lists the situations to which it applies, it implies the exclusion of situations not contained in the list.” Evans v. Diaz, 333 N.C. 774, 779-80, 430 S.E.2d 244, 247 (1993) (citing
Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 732, 407 S.E.2d 819, 822 (1991)). “The canon depends on identifying a series of two or more terms or things that should be understood to go hand in hand, which is abridged in circumstances supporting a sensible inference that the term left out must have been meant to be excluded.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81, 122 S. Ct. 2045, 2050 (2002). In other words, sometimes a provision is written (or a set of provisions are written) in such a way that a reasonable negative inference can and should be drawn. See, e.g., Jennings v. Rodriguez, ___ U.S. ___, 138 S. Ct. 830, 844 (2018). Because the application of the expressio unius canon “depends so much on context,” however, “it must be applied with great caution.” Antonin Scalia & Bryan Garner, Reading Law 107 (2012).
Context significantly limits the application of this canon in cases like this one, in which the scope of the General Assembly‘s power is at issue. “[O]ur State Constitution is not a grant of power. All power which is not expressly limited by the people in our State Constitution remains with the people, and an act of the people through their representatives in the legislature is valid unless prohibited by that Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473, 478 (1989) (citation omitted) (first citing McIntyre v. Clarkson, 254 N.C. 510, 515, 119 S.E.2d 888, 891 (1961); then citing Lassiter v. Northampton Cty. Bd. of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958), aff‘d, 360 U.S. 45 (1959); and then citing Greensboro-High Point Airport Auth. v. Johnson, 226 N.C. 1, 8, 36 S.E.2d
803, 809 (1946)).7 “Unless the Constitution expressly or by necessary implication restricts the actions of the legislative branch, the General Assembly is free to implement legislation as long as that legislation does not offend some specific constitutional provision.” Baker, 330 N.C. at 338-39, 410 S.E.2d at 891-92; see id. at 343, 410 S.E.2d at 896 (Mitchell, J., dissenting) (asserting that the expressio unius canon “should not be applied blindly in cases of state constitutional interpretation“). In the context of finding limitations on the General Assembly‘s power, therefore, the constitution must necessarily imply any reasonable negative inference if we are to draw that inference through the use of the expressio unius canon.
The two provisions in question here do have a necessary implication, but not one that limits the General Assembly‘s power. The necessary inference to be drawn from the fact that the constitution requires some form of legislative confirmation as to certain constitutional officers—but stays silent on the method of selection of statutory officers—is that the constitution does not require some form of legislative confirmation as to statutory officers. That is essentially
In saying that the appointments clause, standing alone, does not prohibit the General Assembly from giving itself the power to appoint certain statutory officers outright, we were saying that the appointments process did not have to conform to the processes specified in the two constitutional provisions in question. See McCrory, 368 N.C. at 644, 781 S.E.2d at 255. In other words, the reasonable inference to be drawn from the constitution‘s failure to specify how statutory officers are to be appointed or otherwise selected is that the constitution simply leaves this matter to be determined by the political process.
We reached a similar decision in In re Spivey, where we addressed the respondent‘s argument that, because district attorneys are “independent constitutional officer[s],” they can be removed only by impeachment. In re Spivey, 345 N.C. 404, 410, 480 S.E.2d 693, 696 (1997). We used the expressio unius canon8 to hold that, because the constitution and an arguably pertinent statute “expressly provide[d] that most constitutional officers are removable by impeachment” but did not “provide[] that district attorneys are subject to removal by impeachment,” neither the constitution nor the statute subjected district attorneys to removal by impeachment. Id. at 412, 480 S.E.2d at 697. Spivey therefore construed the absence of a method of removal that is stated elsewhere in the constitution to mean that the constitution does not require that method of removal where it is absent. That is precisely analogous to how we construe the constitutional provisions that plaintiff raises here: the absence of a legislative confirmation requirement elsewhere in the constitution means that the constitution does not require statutory officers to be confirmed by the legislature. Nothing more, nothing less.
In contrast, plaintiff suggests that, when the constitution requires a process in one circumstance, it implicitly prohibits that process from being used in all other circumstances. But if we drew that inference, plaintiff‘s argument would be self-defeating. After all, the constitution delegates to the Governor the power to nominate or appoint a number of constitutional officers—in these two provisions and in others. See also, e.g.,
In so concluding, we acknowledge that plaintiff cites several cases from our sister states in support of his expressio unius argument. But using out-of-state cases as persuasive authority in interpreting our own constitution can be ill-advised; each state constitution has its own unique history of development, both in terms of the constitutional text itself and of the judiciary‘s interpretation of that text. See, e.g., McCrory, 368 N.C. at 640-44, 781 S.E.2d at 253-55 (discussing the history of the appointment power in North Carolina with reference to a number of state-specific constitutional ratifications and amendments); Rampton v. Barlow, 464 P.2d 378, 379 (Utah 1970) (discussing the connection between the Constitution of Utah and the Organic Act creating the Territory of Utah). The opinions that plaintiff cites from Alaska and Utah are a
In declining to adopt plaintiff‘s application of the expressio unius canon, we do not, as he suggests, render superfluous the language of the two constitutional provisions that require some form of legislative confirmation. Consider the appointments clause: “The Governor shall nominate and by and with the advice and consent of a majority of the Senators appoint all officers whose appointments are not otherwise provided for.”
So too with the Board of Education provision. If one were to remove the confirmation requirement from
Next, quoting the report of the North Carolina Study Commission that drafted our current constitution, plaintiff argues that—because our constitution restricts, rather than enumerates, the General Assembly‘s power—a constitutional provision that “may appear in form to be a grant of authority to the General Assembly to act on a particular matter normally is in legal effect a limitation, not a grant.” Report of the North Carolina State Constitution Study Commission 2 (1968). In light of the rule expressed in this statement, plaintiff concludes that the two provisions of the constitution that confer confirmation capability on the General Assembly show that the General Assembly has no general power to confirm. Accordingly, plaintiff maintains, these provisions must actually limit the General Assembly‘s ability to confirm to the two constitutionally specified instances.
We do not have to decide, and do not decide, whether the statement from the Commission report that plaintiff quotes is accurate. It is enough to say that its use of the word “normally” permits exceptions to its purported rule, and that, even if that rule is correct, the two constitutional provisions in question would both qualify as exceptions to it. The grant of power to the General Assembly in those provisions must be viewed hand-in-hand with the power that those provisions grant to the Governor. When viewed in this way, it is easy see that, when the constitution creates appointments processes in which both the General Assembly and the Governor have a role, it needs to specify the power of both actors in those processes. That is all that the constitution has done here. Accordingly, those provisions specifying the appointments processes of constitutional officers should not be read as limitations on the General Assembly as to the appointments of statutory officers.
Finally, plaintiff takes issue with the language of
But, as plaintiff concedes, our constitution does not enumerate the powers of the General Assembly. As we have already mentioned, unlike the powers of Congress in the federal model, the General Assembly has the power to legislate on all matters unless the constitution prohibits it from doing so. See McIntyre, 254 N.C. at 515, 119 S.E.2d at 891 (“All power which is not limited by the Constitution inheres in the people, and an act of a State legislature is legal when the Constitution contains no prohibition against it.“); see also Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam) (“[T]he power [that] remains with the people . . . is exercised through the General Assembly . . . .“). Thus, the General Assembly need not identify the constitutional source of its power when it enacts statutes. In fact, in most instances, there will be no particular grant of constitutional authority on which the General Assembly will rely. It will instead rely on its general power to legislate, which it retains as an arm of the people.
Plaintiff‘s argument therefore makes sense only in conjunction with one or more of his earlier arguments that the constitution implicitly limits the General Assembly‘s legislative confirmation power to the two instances enumerated in the appointments clause and in
Notably, under our analysis,
But it is also worth noting that the “in conformance with” language does not appear to be intended to provide constitutional authority for the General Assembly‘s enactment anyway. McCrory clearly holds that the appointments clause refers only to constitutional officers, not to statutory ones. See 368 N.C. at 644, 781 S.E.2d at 255. We have long held that “[t]he Legislature is presumed to know the law.” Purnell v. Page, 133 N.C. 125, 130, 45 S.E. 534, 536 (1903). And it is undisputed that the General Assembly added the senatorial confirmation language to
Because none of plaintiff‘s arguments about how to properly construe the two legislative confirmation provisions in the constitution are convincing, these arguments do not give us any basis on which to hold the senatorial confirmation provision in
It has long been the practice of the General Assembly, moreover, to require confirmation of certain gubernatorial nominees to statutory offices. See, e.g., An Act of March 8, 1941, ch. 97, sec. 2, 1943 N.C. Pub. [Sess.] Laws 151, 151 (codified as amended at
* * *
The separation of powers clause safeguards the Governor‘s ability to have enough control over his Cabinet members to perform his duty under the take care clause. Because Cabinet members play such a critical role in executive branch functions, the Governor‘s control over them must be significant. Here, however, the Governor has unfettered power to nominate any eligible individual to serve in his Cabinet, has significant supervisory power over his Cabinet members, and has the power to remove Cabinet members at will. The constitution, moreover, does not otherwise prohibit the General Assembly from requiring senatorial confirmation of members of the Governor‘s Cabinet. As a result, the appointments provision of
AFFIRMED.