North Carolina Republicans’ budget prevents governor from suing.

North Carolina Republicans Have Come Up With a Diabolical Plan to Stop Losing in Court

North Carolina Republicans Have Come Up With a Diabolical Plan to Stop Losing in Court

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The Slatest
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June 21 2017 5:27 PM

North Carolina Republicans Are Trying to Strip the Governor of His Power to Challenge Laws

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North Carolina Democratic Gov. Roy Cooper

North Carolina Department of Transportation/Flickr

Shortly after Roy Cooper, a Democrat, won the North Carolina governorship, the GOP-dominated General Assembly launched an all-out assault on his office. Legislative Republicans, bolstered by an unconstitutional racial gerrymander, stripped the governor of various powers—most critically, his ability to restore voting rights and appoint certain judges. Cooper sued to block the new laws, and the state judiciary has mostly sided with him, striking down a slew of measures that restricted his ability to govern the state.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

Now, the state GOP believes it has devised a solution: stop Cooper from filing suit against unconstitutional laws in the first place. This week, the General Assembly’s Republican leaders released their final budget, which includes a brazen plan to thwart the governor in several ways. First, the budget prevents Cooper from using the governor’s office attorneys without the General Assembly’s permission. Second, the budget prevents Cooper from using “lapsed salary savings”—money saved when the state pays an employee less than it had budgeted—to hire outside counsel. These provisions effectively prevent Cooper from suing the legislature to halt unconstitutional laws. In order for him to do so, the General Assembly would have to give its permission to be sued, or Cooper would have to pay private lawyers out of pocket.

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The budget also takes aim at another office of the executive branch, the attorney general. Currently, Democrat Josh Stein serves as AG, which has caused problems for the GOP. After a federal court struck down the state’s draconian voter ID law, Republicans wanted to appeal the decision to the Supreme Court. But Stein refused to defend the law, prompting a confusing legal maelstrom that ultimately spurred the justices to reject the appeal altogether. The budget aims to avoid this problem by forcing the attorney general to defend the legislature any time it is sued. (If the AG recuses himself, he must select another lawyer at the state Justice Department to replace him.) This unusual requirement deprives the attorney general of his traditional discretion and raises grave constitutional concerns about legislative interference in executive affairs.

Republicans also added a provision to the budget mandating that the legislature participate in any suit challenging a North Carolina law. That means the General Assembly can always step into a lawsuit against the state and defend the challenged statute, even though the governor cannot—unless the General Assembly allows him to, and permits him to use his attorneys. Finally, just for good measure, Republicans slashed funding for the Department of Justice by nearly 40 percent, kneecapping Stein’s entire agency.

On Wednesday, I asked Cooper’s office what the governor made of the proposals.

“Since gaining a legislative majority, North Carolina Republicans have had more than a dozen unconstitutional laws overturned by the courts,” Ford Porter, a Cooper spokesman, told me. “In response, they appear intent on dismantling checks and balances in state government. In addition to a legislative assault on the courts, Republicans are now attempting to rig the system by limiting the Executive Branch’s ability to challenge unconstitutional laws.”

If the General Assembly passes the budget in its current form, Cooper will likely veto it. The legislature will then promptly override his veto, at which point Cooper will probably sue before the new provisions take effect. He will have a strong case: North Carolina courts have already found that the legislature’s intrusions into executive affairs violates the state’s constitutional command of separation of powers. But if Cooper loses, he may never be able to sue the General Assembly again.

The legislature’s chicanery here is especially galling given its recent losses in court. Earlier this month, the Supreme Court ruled that the state’s legislative districts were unlawfully gerrymandered along racial lines. This gerrymander gave Republicans their current supermajorities—meaning their power is ill-gotten and, arguably, illegitimate. Yet the GOP has not hesitated to use this power to incapacitate the executive in probable contravention of the constitution. The Republican-led breakdown of democracy in North Carolina continues apace.