North Carolina lacks unitary executive

The asymmetry is striking. In Washington, many Republicans take a maximalist position on the executive power of the president of the United States. All departments and agencies — even if created by Congress with the intent of limiting presidential authority over them — are as a constitutional matter subordinate to the president, who can fire their officers and overrule their decisions at will.

Democrats in Washington reject this argument. Yet in North Carolina, it is the Democrats who take a maximalist position on the executive power of our state’s governor: that the governor alone possesses the authority and responsibility to ensure “the laws be faithfully executed.” And it is the Republicans who argue that the legislative branch can empower other executive officers or agencies to act independently of the governor.

Hypocrisy? How dare you suggest such a thing.

Only kidding. I recognize reality. We are all fallen creatures — even politicians! We are vulnerable to various temptations, including motivated reasoning that serves the interests of our respective political teams.

In this case, however, contemporary disputes about executive power reflect more than just partisan cheerleading. The simple fact of the matter is that the federal and state constitutions aren’t mirror images. They were enacted in different contexts by different people to structure the operations of different levels of government.

Both charters do, indeed, contain identical “vesting clauses.” Article 2 of the federal constitution begins with this statement: “The executive Power shall be vested in a President of the United States of America.” Article 3 of the state constitution begins with this statement: “The executive power of the State shall be vested in the Governor.”

Both documents also contain identical “take care” clauses to the effect that the president/governor “shall take care that the laws be faithfully executed.” And both empower the president/governor to appoint other executive-branch officials with the “advice and consent” of their respective senates.

But in other ways, the two constitutions diverge. The federal constitution authorizes the election of just two executives, the president and vice president. The state constitution requires the election of 10 executives: governor, lieutenant governor, attorney general, state treasurer, state auditor, secretary of state, agriculture commissioner, insurance commissioner, labor commissioner, and superintendent of public instruction.

Furthermore, while the federal constitution delegates to Congress only a limited set of legislative powers, the constitution of North Carolina (and other states) gives state legislators broader authority, often called a general “police power,” to enact laws and policies on behalf of the people.

As Jeanette Doran, executive director of the NC Institute for Constitutional Law, put it in a recent friend-of-the-court brief filed by NCICL and the John Locke Foundation, the state judiciary has long recognized the sweeping nature of this grant of authority. “So long as an act is not forbidden,” the state supreme court ruled in 1982, “the wisdom and expediency of the enactment is a legislative, not a judicial, decision.”

When it comes to legislative power over the executive branch, what does the state constitution forbid? Well, I’m persuaded that, even in North Carolina, the General Assembly cannot simply take over and run executive agencies. The “legislative, executive, and supreme judicial powers of the State government shall be forever separate and distinct,” the constitution states. In the past, the high court has struck down encroachments such as the Advisory Budget Commission and, more recently, executive boards composed mostly of legislative appointments.

Still, North Carolina clearly lacks a unitary executive. There are 10 such offices, and the constitution unambiguously authorizes the General Assembly to assign roles and duties to them. Our vesting clause grants the governor executive power as a default but cannot reasonably be construed to prohibit lawmakers from, for example, assigning the power to enforce labor laws to the labor commissioner or the power to manage some funds to the state treasurer.

Last year, the General Assembly transferred authority over elections administration from the governor to the state auditor. A good idea? That’s certainly debatable. Unconstitutional? Certainly not.

John Hood is a John Locke Foundation board member. His books Mountain Folk, Forest Folk, and Water Folk combine epic fantasy and American history.