Cooper v. Berger
Cooper v. Berger
Opinion
**799
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
,
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 N.C.G.S. § 143B-9(a), **801 which grants the North Carolina Senate the power to confirm the people that he nominates to serve in his Cabinet. Plaintiff alleges that senatorial confirmation undermines his control over the views and priorities of those who serve in his administration and violates the separation of powers that our constitution guarantees. See N.C. Const. art. I, § 6.
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
N.C.G.S. § 143A-11 creates ten principal administrative departments headed by the members of the Council of State-sometimes called the "Council of State agencies."
See, e.g.
, N.C.G.S. § 126-6.3 ;
see also
N.C. Const. art. III, §§ 2, 7, 8. Supplementing these departments are eleven additional principal administrative departments named in N.C.G.S. § 143B-6 -the Community Colleges System Office and the Departments of Natural and Cultural Resources, Health and Human Services, Revenue, Public Safety, Environmental Quality, Transportation, Administration, Commerce, Information Technology, and Military and Veterans Affairs. These eleven departments are sometimes called "Cabinet agencies."
See, e.g.
,
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. N.C.G.S. § 143B-4 reiterates the Governor's role as "the Chief Executive Officer of the State."
See also
N.C. Const. art III, § 1 (vesting the executive power of the State in the Governor). That same statute gives the Governor final authority to "formulat[e] and administer[ ] the policies of the executive branch." N.C.G.S. § 143B-4 (2017). In addition, Cabinet members must provide the Governor with extensive information about the work of their respective departments. For example, Cabinet members must "submit to the Governor an annual plan of work" and "an annual report covering programs and activities for each fiscal year."
*291
Plaintiff alleges that the appointments process for Cabinet members set forth in N.C.G.S. § 143B-9(a) is unconstitutional. On 30 December 2016, plaintiff filed a complaint in Superior Court, Wake County, challenging the constitutionality of another act of the General Assembly.
2
On 10 January 2017, plaintiff amended his complaint to allege that a separate act requiring senatorial confirmation of his Cabinet members violates the appointments clause and the separation of powers clause of our state constitution.
See
N.C. Const. art. I, § 6 (separation of powers clause);
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
**803
decision.
Cooper v. Berger
, --- N.C. App. ----, ----,
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
,
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,
**804
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,
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." N.C. Const. art. I, § 6. This concept is "a cornerstone of our state and federal governments."
State ex rel. Wallace v. Bone
,
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).
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,
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.
**806 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,
Our constitution gives the Governor the power and the duty to "take care that the laws be faithfully executed." N.C. Const. art. III, § 5 (4);
see also
McCrory
, 368 N.C. at 645, 649,
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,
**807
Id. at 646,
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 *294 departments. As department heads, Cabinet members have far more discretion, and wield far more executive power, than the commissioners in McCrory did. Among other things, they have the authority to reorganize their departments, to create and fill subordinate staff positions, and to establish advisory committees. N.C.G.S. § 143B-10 (2017). In addition, Cabinet members are some of the Governor's closest deputies, and are critical to the Governor's ability to take care that the laws be faithfully executed.
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
,
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,
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." N.C.G.S. § 143B-4. Each Cabinet member must "submit to the Governor an annual plan of work for the next fiscal year,"
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
**810
not otherwise provided for by the constitution to be nominated by the Governor and confirmed by a majority of the Senate. N.C. Const. art. III, § 5 (8);
McCrory
, 368 N.C. at 644,
"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
,
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
**811
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
,
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
*297
what we held in
McCrory
. 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,
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
,
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.
, N.C. Const. art. III, § 7 (3) (granting the Governor the power to fill vacant offices in the Council of State);
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,
So too with the Board of Education provision. If one were to remove the confirmation requirement from Article IX, Section 4(1), the clause in question would simply provide for "eleven members" of that Board to be "appointed by the Governor"-full stop. That too would morph the Governor's appointment *299 power from one that is subject to legislative confirmation to one that is not, even accepting our application of the expressio unius canon. As a result, the legislative confirmation language in this provision is also not superfluous. **815 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 subsection 143B-9(a) that requires Cabinet members to be confirmed "in conformance with" the appointments clause. He claims that, because the appointments clause applies only to constitutional officers, the appointments clause cannot "authorize" the General Assembly to require senatorial confirmation of Cabinet members.
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
,
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 Article IX, Section 4(1). His argument is predicated, in other words, on the theory that the constitution elsewhere limits the General Assembly's authority to confirm executive officers, which would then require express constitutional authorization for the General Assembly to be able to call for senatorial confirmation in this instance. Because plaintiff's earlier arguments are unavailing, though, this argument is as well.
Notably, under our analysis, subsection 143B-9(a) would still be constitutional even if the General Assembly had mistakenly intended the "in conformance with" phrase to identify the constitutional source of its authority. The General Assembly would still in *300 fact have the authority to enact this statutory provision as long as its enactment was not otherwise prohibited by the constitution-which it is not. And we would therefore uphold the statute as a valid exercise of that authority-even if the General Assembly had not properly identified the source of its authority.
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,
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 subsection 143B-9(a) unconstitutional.
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 N.C.G.S. § 62-10(a) (2017 & Supp. 2018) ) (requiring legislative confirmation of gubernatorial nominees for the North Carolina Utilities Commission);
see also
Current Operations and Capital Improvements Appropriations Act of 2014, ch. 100, sec. 18B.6, 2013 N.C. Sess. Laws (Reg. Sess. 2014) 328, 539 (codified as amended at N.C.G.S. § 7A-45.1(a10) (2017) ) (requiring legislative confirmation of gubernatorial nominees for special superior court judgeships); Protecting and Putting North Carolina Back to Work Act, ch. 287, sec. 17,
* * *
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 **818 confirmation of members of the Governor's Cabinet. As a result, the appointments provision of subsection 143B-9(a) withstands plaintiff's facial constitutional *301 challenge. We therefore affirm the decision of the Court of Appeals.
AFFIRMED.
The historical roots of the Council of State can be traced to the advisory councils of the English monarchs. The Research Branch, Div. of Archives & History, N.C. Dept. of Cultural Res., The Council of State in North Carolina: An Historical Research Report 8 (1986). In North Carolina, the use of an executive council predates our earliest constitution. See generally id. at 8-127 (discussing the development of the Council of State before the American Revolution). At the founding, the Council of State consisted of seven persons appointed by the General Assembly to advise the Governor. N.C. Const. of 1776, § XVI. With the passage of the Constitution of 1868, "the Council of State became a body of directly elected officers, with executive duties of their own." John V. Orth & Paul Martin Newby, The North Carolina State Constitution 124-25 (2d ed. 2013); see also N.C. Const. of 1868, art. III, § 14 ("The Secretary of State, Auditor, Treasurer, Superintendent of Public Works, and Superintendent of Public Instruction, shall constitute, ex officio , the Council of State.... The Attorney General shall be, ex officio , the legal adviser of the Executive Department."). The most recent iteration of the Council of State-consisting of the ten elected Article III officers that we have just listed-has remained unchanged since our current constitution was ratified. See N.C. Const. art III, §§ 7 -8.
The legislative act initially challenged is not a subject of this appeal.
While it is possible to envision a scenario in which the Senate's arbitrary rejection of capable nominees for a particular office might violate the separation of powers clause, "[t]he fact that a statute might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid."
State v. Bryant
,
Our state constitution's appointment model thus differs from the federal appointment model, in which "[t]he [United States Constitution's] Appointments Clause prescribes the
exclusive
means of appointing 'Officers.' "
Lucia v. SEC
, --- U.S. ----,
As in
McCrory
, "[o]ur opinion takes no position on how the separation of powers clause applies to those executive departments that are headed by the independently elected members of the Council of State."
Id.
at 646 n.5,
To the extent that plaintiff asserts in his reply brief that "the power of appointment is an executive power," this premise directly conflicts with our prior decisions. The power of appointment is not inherently executive,
see
Cunningham v. Sprinkle
,
This is a fundamental distinction between our state and federal constitutions. The Constitution of the United States is a grant of power to the federal government-that is, the federal government can act only in ways
permitted
by the Constitution.
See, e.g.
,
McCulloch v. Maryland
, 17 U.S. (4 Wheat.) 316, 405,
In
Spivey
, we called the
expressio unius
canon by its alternative name-"
inclusio unius est exclusio alterius
(inclusion of one is exclusion of another),"
id. at 412,
Though the states are not unanimous in this view of the appointment power, North Carolina is hardly an outlier in this respect. This theory of the appointment power is long established and remains the law both here and in a number of other jurisdictions.
See, e.g.
,
Clinton v. Clinton
,
Reference
- Full Case Name
- 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
- Cited By
- 22 cases
- Status
- Published
- Syllabus
- Facial constitutional challenge to 2016 law making Cabinet appointees subject to the advice and consent of the North Carolina Senate.