NC budget reshapes governor’s appointment power

Gov. Josh Stein signed North Carolina’s new state budget despite provisions that reduce his power over key state boards and commissions, transferring dozens of appointments from the governor’s office to lawmakers and other Council of State officials.

The changes mark the latest action in a long-running fight over executive authority in North Carolina, where governors and legislative leaders have repeatedly clashed over who controls appointments to boards and commissions that help carry out state law.

“Power struggles between the executive and legislative branch are as old as the initial separation of government powers, but Republican legislative leaders have focused quite a bit of attention on the issue, especially since Democrats took back the governor’s mansion after the 2016 election,” said Mitch Kokai, John Locke Foundation senior political analyst.

The roughly $34 billion spending plan includes raises, tax relief, Hurricane Helene recovery funding, and other major state priorities. But deeper in the budget are provisions that reshape who gets to appoint members of several influential state boards, reducing the governor’s role and spreading appointment power among the General Assembly and other statewide elected officials.

Stein, a Democrat, criticized the provisions at the budget bill signing on July 7.

“It’s full of unconstitutional and petty provisions that strip power from the executive branch, politicize the state government, and undermine its efficiency,” Stein said.

The appointment changes affect boards involved in banking, agriculture, historical preservation, real estate regulation, workers’ compensation, the lottery, economic development, and the arts. In several cases, boards previously controlled largely or entirely by the governor moved to shared-appointment structures.

In all, the budget moves 85 appointment slots away from the governor across more than a dozen boards and commissions, though the changes are phased in as current members’ terms expire. 

“These latest changes all seem to follow a pattern that state courts have endorsed,” Kokai said. “Rather than allow the governor to appoint all members to the targeted boards, the General Assembly has assigned some appointments to other members of the Council of State and some appointment authority to itself. In each case, the executive branch officials have maintained a majority of appointments.”

Kokai said that point may matter in court, even as critics are likely to focus on which officials receive the new appointment power.

“Critics will note that the General Assembly has looked only to Republican Council of State members for new appointments, meaning that GOP appointees are likely to outnumber Stein’s Democratic members,” Kokai added. “But courts have been willing to go along with that type of arrangement in recent decisions.”

That puts the budget changes squarely in the middle of an ongoing legal and political fight over the separation of powers.

Stein and Republican legislative leaders are already before the North Carolina Supreme Court in cases involving earlier laws that changed appointments to state boards and commissions and limited the governor’s choices for statewide judicial vacancies.

“Ever since Roy Cooper moved into the governor’s mansion, top GOP lawmakers have looked for ways to reduce the governor’s authority over state boards and commissions,” Kokai added. “The trend has continued under Gov. Stein. Courts have approved some of these changes while rejecting others.”

Those cases could help determine how far lawmakers can go in redistributing appointment authority away from the governor. The new budget provisions are not part of those pending cases.

“These changes are likely to stand or fall based on the outcomes of two cases at the North Carolina Supreme Court dealing with previous appointment changes,” Kokai said. “If the state’s highest court sides with lawmakers in Stein v. Berger and Stein v. Hall, the governor is unlikely to be able to challenge these latest changes with much success.”

“If the high court strikes down the previous appointment changes, on the other hand, don’t be surprised to see the governor move as quickly as possible to get these changes rescinded,” Kokai added.

Republican legislative leaders have argued in court that the General Assembly has broad authority to create state agencies, structure boards and commissions, and determine how appointments are made. Stein has argued that lawmakers cross a constitutional line when they take enough appointment power away from the governor to prevent him from controlling executive-branch functions.

The budget provisions follow another House-backed proposal aimed at changing appointment power in state government. In May, the House approved House Bill 443, a proposed constitutional amendment that would change how vacancies are filled for eight Council of State offices.

Under the proposal, the governor would be required to fill a vacancy from a list provided by the political party of the departing official. The measure passed the House 73-46 on May 20 but was referred to the Senate Rules Committee and did not clear the Senate before lawmakers adjourned the regular short session.

“They really cannot help themselves when it comes to trying to take power away from the executive branch,” Stein told Carolina Journal when asked about the proposed amendment. “What they should be doing is focusing on passing a budget and meeting their deadline. They should not spend as much mental energy as they do trying to take away the power of the governor.”

The proposal was not part of the budget, but Berger has said the Senate will vote on the measure when the body reconvenes at the end of July.

“NC budget reshapes governor’s appointment power” was originally published on www.carolinajournal.com.