Cooper v. Berger

IN THE SUPREME COURT OF NORTH CAROLINA
No. 409PA17
Filed 21 December 2018
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
On discretionary review pursuant to N.C.G.S. § 7A-31 and on appeal of right
of a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) of a
unanimous, per curiam decision of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d
176 (2017), affirming an order of summary judgment entered on 17 March 2017 in
Superior Court, Wake County, by a three-judge panel under N.C.G.S. § 1-267.1.
Heard in the Supreme Court on 2 October 2018.
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.
MARTIN, Chief Justice.
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
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Opinion of the Court
Constitution of North Carolina enshrines this executive duty: “The Governor shall
take care that the laws be faithfully executed.” N.C. Const. art. III, § 5(4).
But the Governor is not alone in this task. Our state constitution establishes
nine other offices in the executive branch. See id. art. III, §§ 2, 7. These offices are
elected and consist of the Lieutenant Governor, Secretary of State, Auditor,
Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner of
Agriculture, Commissioner of Labor, and Commissioner of Insurance. Id.
Collectively, these ten offices are known as the Council of State. See id. art. III, § 8.1
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.” Id. art. III, § 5(10). The
heads of the administrative departments that are not headed by members of the
1 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.
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Council of State are appointed to their posts rather than being elected by the people.
See N.C.G.S. § 143B-9(a) (2017). These appointed officers make up the membership
of the Governor’s Cabinet. See, e.g., id. § 126-6.3 (2017 & Supp. 2018) (referring to
the administrative departments created by Chapter 143B of the North Carolina
General Statutes as “Cabinet agencies”); id. § 143-745(a)(1) (2017) (defining “Agency
head” as “the Governor, a Council of State member, a cabinet secretary, . . . and other
independent appointed officers with authority over a State agency” (emphasis
added)). “[T]o perform his constitutional duty,” the Governor must have “enough
control” over the members of his Cabinet to take care that the laws be faithfully
executed. McCrory, 368 N.C. at 646, 781 S.E.2d at 256.
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), 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,
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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., id. § 126-6.3. The constitution does not directly mention any of these
departments; they are statutory creations.
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., id.
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§ 143B-52 (2017) (naming the Secretary of Natural and Cultural Resources as the
head of the corresponding department); id. § 143B-139 (2017) (doing likewise for the
Secretary of Health and Human Services). These officers are appointed according to
a process defined by statute. That statute currently grants the Governor the power
to “appoint[ ]” individuals to fill each Cabinet position, “subject to senatorial advice
and consent in conformance with Section 5(8) of Article III of the North Carolina
Constitution [i.e., the constitution’s appointments clause].” Id. § 143B-9(a); see also
N.C. Const. art. III, § 5(8) (“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.”).
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.”
Id. § 143B-10(h) (2017). Cabinet members must also “develop and report to the
Governor legislative, budgetary, and administrative programs to accomplish” long-
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term policy goals. Id. § 143B-10(i) (2017). If the Governor wishes to remove any of
the members of his Cabinet, he or she may do so at any time, for any reason. See id.
§ 143B-9(a).
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); id. art. III, § 5(8) (appointments clause). Plaintiff sought a declaration that
this aspect of subsection 143B-9(a)’s appointments process is unconstitutional and a
permanent injunction barring the operation of section 143B-9 as written.
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
2 The legislative act initially challenged is not a subject of this appeal.
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a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and also
petitioned this Court for discretionary review of the same constitutional question
pursuant to N.C.G.S. § 7A-31. We retained plaintiff’s notice of appeal and allowed
plaintiff’s petition.
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
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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 N.C.G.S. § 143B-9(a)—that is, a challenge that subsection
143B-9(a)’s advice-and-consent provision is unconstitutional in all circumstances. Cf.
Hart, 368 N.C. at 131, 774 S.E.2d at 288 (“[T]he party making [a] facial challenge
[must] meet the high bar of showing ‘that there are no circumstances under which
the statute might be constitutional.’ ” (quoting Beaufort Cty. Bd. of Educ. v. Beaufort
Cty. Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009))).3
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 act . . . is the most difficult challenge to mount successfully.” Id. at 131, 774
S.E.2d at 288. “We seldom uphold facial challenges because it is the role of the
legislature, rather than this Court, to balance disparate interests and find a workable
compromise among them.” Beaufort Cty. Bd. of Educ., 363 N.C. at 502, 681 S.E.2d at
3While 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, 359 N.C. 554, 564,
614 S.E.2d 479, 486 (2005) (quoting State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277,
282 (1998)).
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280. These well-established principles provide the lens through which we view this
case.
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, 304 N.C. 591, 601,
286 S.E.2d 79, 84 (1982). Separating the powers of the government preserves
individual liberty by safeguarding against the tyranny that may arise from the
accumulation of power in one person or one body. See Montesquieu, The Spirit of the
Laws 151-52 (Thomas Nugent trans., Hafner Press 1949) (asserting that “there can
be no liberty” where two or more of these governmental powers “are united in the
same person”). “The clearest violation of the separation of powers clause occurs when
one branch exercises power that the constitution vests exclusively in another branch.”
McCrory, 368 N.C. at 645, 781 S.E.2d at 256. Whether or not a violation of this kind
has occurred is a binary question, not a question of degree; one branch either is, or is
not, exercising power vested exclusively in another branch.
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). 304 N.C. at
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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
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appointing, or from confirming the nominations of, statutory officers. See id.4 And
this Court has long held “that appointing statutory officers is not an exclusively
executive prerogative.” See id. at 648, 781 S.E.2d at 258 (first citing Cunningham v.
Sprinkle, 124 N.C. 638, 643, 33 S.E. 138, 139 (1899); and then citing Trs. of Univ. of
N.C. v. McIver, 72 N.C. 76, 85 (1875)). Because the power to appoint statutory officers
is not vested exclusively in any branch, the lesser power to confirm statutory officers
is not vested exclusively in any branch, either. As a result, no branch can, in
exercising the power to confirm statutory officers, violate the per se separation of
powers rule that Wallace established.
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.
4 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. ___, ___,138
S. Ct. 2044, 2051 (2018) (emphasis added); see also McCrory, 368 N.C. at 640 n.3, 781 S.E.2d
at 252 n.3 (quoting Buckley v. Valeo, 424 U.S. 1, 132, 96 S. Ct. 612, 688 (1976) (per curiam))
(explaining that the federal appointments clause “deliberately denie[s] Congress” any
appointment power over officers, and highlighting how that clause differs from our state
constitution’s appointments clause). Because of the nature of the federal model, the relevant
inquiry under the Federal Constitution is not whether the office is constitutional or statutory,
but whether the appointee is an officer or a “non-officer employee[ ].” See Lucia, ___ U.S.
at ___, 138 S. Ct. at 2051 (stating that, if the appointees in question are non-officer
employees, “the Appointments Clause cares not a whit about who named them”).
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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.” N.C. Const. art. III, § 5(4); see also McCrory, 368
N.C. at 645, 649, 781 S.E.2d at 256, 258. While, as we have just discussed, the
appointments clause places no per se restrictions on the appointment of statutory
officers, the separation of powers clause requires that the Governor have “enough
control over” executive officers “to perform his constitutional duty” under the take
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care clause. McCrory, 368 N.C. at 646, 781 S.E.2d at 256.5 Because there is no
categorical rule that determines whether a statutory framework which involves the
General Assembly in the appointment of executive-branch statutory officers affords
the Governor enough control over those officers, “we must resolve each challenge by
carefully examining its specific factual and legal context.” Id. at 646-47, 781 S.E.2d
at 257.
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
5As 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, 781 S.E.2d at 256 n.5.
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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 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
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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
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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.” N.C.G.S. § 143B-4.
Each Cabinet member must “submit to the Governor an annual plan of work for the
next fiscal year,” id. § 143B-10(h), and “report to the Governor legislative, budgetary,
and administrative programs to accomplish comprehensive, long-range coordinated
planning and policy formulation in the work of his department,” id. § 143B-10(i). And
many of the Cabinet members’ discretionary decisions regarding department
organization and operation require the Governor’s approval before taking effect. See,
e.g., id. § 143B-10(b) (providing that each principal State department head may,
“[w]ith the approval of the Governor, . . . establish or abolish . . . any division” within
the department head’s department); id. § 143B-10(j)(2) (providing that each principal
State department head “may adopt . . . [r]ules, approved by the Governor, to govern
the management of the department, which shall include the functions of planning,
organizing, staffing, directing, coordinating, reporting, budgeting, and budget
preparation which affect private rights or procedures available to the public”). In
short, the Governor has extensive supervisory power, allowing him to directly
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manage his Cabinet members in virtually every aspect of their authority.
Finally, with respect to the third McCrory factor, members of the Governor’s
Cabinet “serve at the Governor’s pleasure,” id. § 143B-9(a), meaning that the
Governor may remove them for any reason or for no reason at all. If a Cabinet
member’s performance does not conform to the Governor’s wishes, the Governor may
remove him or her. If a Cabinet member acts too slowly to implement the Governor’s
policies, the Governor may remove him or her. If the Governor decides to change
directions in a given policy area and the corresponding Cabinet member is not willing
to be flexible, the Governor may remove him or her. In other words, the Governor
retains plenary authority to remove the members of his Cabinet. With that authority,
he may prevent any member of his Cabinet from refusing to properly implement his
preferred policies.
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
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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
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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. N.C. Const. art. III, § 5(8); McCrory, 368 N.C. at 644, 781 S.E.2d at 255.
Second, he cites Article IX, Section 4(1), which states that “eleven members” of the
State Board of Education shall be “appointed by the Governor, subject to confirmation
by the General Assembly in joint session.”6
Plaintiff argues, based on these two provisions, that senatorial confirmation of
members of the Governor’s Cabinet is unconstitutional based on the canon of
expressio unius est exclusio alterius. Plaintiff essentially claims that, because the
constitution twice mentions some form of legislative confirmation for certain
constitutional officers but fails to require any form of legislative confirmation for
statutory officers, the constitution implicitly prohibits the General Assembly from
requiring legislative confirmation of statutory officers.
“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
6 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, 124 N.C. 638, 643, 33
S.E. 138, 139 (1899) (“[T]he election of officers is not an executive, legislative or judicial
power, but only a mode of filling the offices created by law . . . .”), and therefore is not an
“executive power of the State . . . vested in the Governor” by Article III, Section 1 of our state
constitution. See, e.g., McCrory, 368 N.C. at 648, 781 S.E.2d at 258 (first citing Cunningham,
124 N.C. at 643, 33 S.E. at 139; and then citing McIver, 72 N.C. 76, 85).
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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, 79 S. Ct. 985 (1959); and
then citing Greensboro-High Point Airport Auth. v. Johnson, 226 N.C. 1, 8, 36 S.E.2d
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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 what we held in McCrory.
7 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 (1819) (stating that the federal government “is
acknowledged by all to be one of enumerated powers” that “can exercise only the powers
granted to it”). Our state constitution, by contrast, functions in the opposite manner—that
is, the General Assembly is generally free to act unless prohibited by our constitution. See,
e.g., State ex rel. Ewart v. Jones, 116 N.C. 570, 570-71, 21 S.E. 787, 787 (1895) (“The only
limitation upon [the General Assembly’s] power is found in the organic law, as declared by
the delegates of the people in convention assembled from time to time.”).
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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
8 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, 480 S.E.2d at
697; see also Scalia & Garner, at 107 (explaining that expressio unius and inclusion unius are
interchangeable names for the same interpretive canon).
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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., N.C. Const. art. III, § 7(3) (granting the Governor the power
to fill vacant offices in the Council of State); id. art. IV, § 19 (granting the Governor
the power to fill vacant Article IV offices unless another process is constitutionally
specified). As with the two provisions that give the General Assembly some form of
confirmation power over constitutional officers, these provisions give the Governor
the power to nominate or appoint constitutional officers. But, just as no
constitutional provision gives the General Assembly the power to confirm statutory
officers, no constitutional provision gives the Governor the power to nominate or
appoint statutory officers. Thus, applying plaintiff’s suggested interpretation, it
would follow that the Governor could not nominate or appoint statutory officers. This
does not follow, however, and the constitution permits, but does not require, the
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Opinion of the Court
Governor to be able to nominate and appoint statutory officers. It likewise permits,
but does not require, the General Assembly to be able to confirm statutory officers.
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 case in point. They stand only for the proposition that, when
the appointment power is an executive power, the legislature may not confirm
gubernatorial appointees unless the state constitution expressly permits it to do so.
See Bradner v. Hammond, 553 P.2d 1, 7 (Alaska 1976) (“[U]nder Alaska’s constitution
the appointment of subordinate executive officers by the governor is an executive
function . . . .”); Matheson v. Ferry, 657 P.2d 240, 245 (Utah 1982) (Stewart, J.,
concurring). But as we have already discussed, our courts have long held that the
appointment power in North Carolina is “not an executive, legislative or judicial
power, but only a mode of filling the offices created by law.” Cunningham, 124 N.C.
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at 643, 33 S.E. at 139; see also McCrory, 368 N.C. at 648, 781 S.E.2d at 258
(“[A]ppointing statutory officers is not an exclusively executive prerogative.”).9 Thus,
these opinions reach a different result than we do because they rest on a different
premise that arises from different texts and histories.
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
9 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, 305 Ark. 585, 590, 810 S.W.2d 923, 926 (1991) (reaffirming “that there
was no inherent appointment power in the Governor” (emphasis omitted) (citing Cox v. State,
72 Ark. 94, 78 S.W. 756 (1904))); Marine Forests Soc’y v. Cal. Coastal Comm’n, 36 Cal. 4th 1,
34, 113 P.3d 1062, 1080 (2005) (reaffirming the principle that “[t]he power to fill an office is
political, and this power is exercised in common by the Legislatures, the Governors, and other
executive officers, of every State in the Union, unless it has been expressly withdrawn, by
the organic law of the State” (quoting People ex rel. Aylett v. Langdon, 8 Cal. 1, 16 (1857)));
Stroger v. Reg’l Transp. Auth., 201 Ill. 2d 508, 527, 778 N.E.2d 683, 694 (2002) (reaffirming
the principle that “[t]he power to appoint to office is not inherent in the executive department
unless conferred by the constitution or the legislature” and that “[t]he creation of officers, the
delegation and regulation of the powers and duties of officers and the prescribing of the
manner of their appointment or election are legislative functions, which are restrained only
by the Constitution” (quoting People ex rel. Gullett v. McCullough, 254 Ill. 9, 16, 98 N.E. 156,
158 (1912))); Schisler v. State, 394 Md. 519, 584, 907 A.2d 175, 213-14 (2006) (explaining
“that the Legislature can by express provision in a prospective statute commit the
appointment process to entities other than the Executive,” reaffirming that court’s earlier
holding in Mayor of Baltimore v. State, 15 Md. 376, 455 (1860)); State ex rel. Clarke v. Irwin,
5 Nev. 111, 127 (1869) (stating that, “[i]n the Constitution of the State of Nevada, the
appointing power of the Legislature is neither cut up by the roots, nor in any manner
hampered, save where the Constitution itself . . . provides for filling a vacancy”); Richardson
v. Young, 122 Tenn. 471, 515-16, 125 S.W. 664, 674 (1909) (“We have no difficulty in coming
to the conclusion that [the appointment] power, under the constitution of this State, is not an
executive function, inherently in the executive department when not otherwise expressly
vested, but a political power, which, consistently with the distribution of powers of
government, may properly be vested in either the legislative, executive, or judicial
departments by the general assembly.”).
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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.” N.C. Const. art. III, § 5(8) (emphasis added). If one were to
remove the language that we have italicized, the Governor is left with the complete
power to “nominate and appoint” constitutional officers—a power that is not subject
to any form of legislative confirmation. Alternatively, if one were to remove the
italicized language plus the word “and” before it and the word “appoint” after it, the
appointments clause would be incomplete; it would describe only how constitutional
officers “whose appointments are not otherwise provided for” are to be nominated, not
how they are to be appointed. Either way, removing the language requiring
senatorial confirmation would alter the meaning of the appointments clause. Thus,
that language is not superfluous, even if one rejects plaintiff’s expressio unius
argument.
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 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.
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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
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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, 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.
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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 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, 781 S.E.2d at
255. We have long held that “[t]he Legislature is presumed to know the law.” Purnell
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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 subsection
143B-9(a) after we handed down McCrory. We therefore presume that the General
Assembly knew that the appointments clause could not be the source of its authority
to require senatorial confirmation of Cabinet members. The best reading of the “in
conformance with” language, then, is that it does not provide the source of the General
Assembly’s constitutional authority; rather, it simply requires that the appointments
process for Cabinet members mirror the process recited in the appointments clause.
After all, if one removes the phrase “in conformance with Section 5(8) of Article III of
the North Carolina Constitution” from subsection 143B-9(a), the statute would fail to
tell us how many senators must consent in order to confirm the Governor’s
appointees. By including that language, the statute appears to be telling us that a
majority of senators must consent in order for a Cabinet member to be confirmed.
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
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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, 2011 N.C. Sess. Laws 1087, 1099
(codified as amended at N.C.G.S. § 97-77(a), (a1) (2017 & Supp. 2018)) (requiring
legislative confirmation of gubernatorial nominees for the North Carolina Industrial
Commission). Because these appointments processes are consistent with the
demands of the constitution, “it is entirely within the power of the Legislature to deal
with [statutory officers] as public policy may suggest and public interest may
demand.” N.C. State Bd. of Educ. v. State, ___ N.C. ___, ___, 815 S.E.2d 67, 74 (2018)
(quoting Mial v. Ellington, 134 N.C. 131, 162, 46 S.E. 961, 971 (1903)).
* * *
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
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otherwise prohibit the General Assembly from requiring senatorial confirmation of
members of the Governor’s Cabinet. As a result, the appointments provision of
subsection 143B-9(a) withstands plaintiff’s facial constitutional challenge. We
therefore affirm the decision of the Court of Appeals.
AFFIRMED.
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