Separation of Powers: A Montesquieuian Showdown in Raleigh

By Rachel Pomerantz

Rachel Pomerantz is a rising freshman at the University of Pennsylvania.

In the 24 states where Republicans control both the legislature and governorship, the casual political observer might expect consensus on important legislative initiatives. [1] However, no such consensus exists in Raleigh, North Carolina, where disagreement between the legislature and the governorship has led to the case currently being decided by the state Supreme Court in McCrory v. Berger.

The case began when the state legislature established the Coal Ash Management Commission in the aftermath of the 2014 coal ash spill into the Dan River from a retired Duke Energy power plant. [2] The legislature gave itself the power to appoint the majority of the members of the commission, just as it did for the Oil and Gas Commission and Mining Commission. Joined by former North Carolina governors James Hunt and James Martin, Republican Governor Pat McCrory sued the Republican-controlled General Assembly in part because the legislature tasked itself with appointing people to these commissions that perform “executive functions.” [3] A three judge panel sided with the governors in March, and the North Carolina Supreme Court heard the case on appeal earlier this summer. [4]

What is most peculiar about this separation of powers case is the motive behind the challenge issued by the state’s executive power. In public statements, both the governors and leaders of the two legislative bodies have not referred to any disagreements over the policies that inspired the various commissions. [5] Therefore, it appears that, unlike recent prominent cases such as King v Burwell, where the plaintiff has obvious political motives, this case has been built upon the non-partisan Constitutional rule of separation of powers.

However, Governor McCrory’s close relationship with Duke Energy calls into question the purity of his motives in bringing this case against the General Assembly.  McCrory worked for the energy company for 28 years, becoming a top executive, and, to this day, he still holds at least $10,000 in the company’s stock. Campaign finance reports, which only take into account the organizations that are required to publically report their financial activity, reveal that since 2000, McCrory has received $16,000 from a Duke Energy PAC and $82,000 from top company officers. In addition, he has received, both directly, and indirectly through the PACs that support his political career, hundreds of thousands of dollars from Duke-related donors . [6]

In the 1990s, when McCrory was both the mayor of Charlotte and still an employee at Duke Energy, he testified before Congress against federal environmental regulations that could have cost the company over $500 million. [7] While McCrory has publically admonished Duke Energy’s environmental record, it would be naive to discount McCrory’s significant professional, monetary, and political history with the main company these North Carolina commissions will regulate. [8]

The dispute over the separation of powers between the executive and legislative branch has been brewing in North Carolina for the past few decades. In 1982, the State Supreme Court ruled against the General Assembly when it created a commission and designated four seats for legislators, claiming the legislature could not “exercise control over the implementation of its acts,” especially since the commission carried out duties of the executive branch. [9] Since then, there have been numerous cases that have complicated this simplistic view of the separation of powers. The most recent case, Bacon v. Lee (2001), set a new precedent for evaluating separation of powers cases. The question became whether the action in question interferes with another branch of government’s function “and, if so, whether the action by the intervening branch is justified by an overriding need to promote objectives within its own constitutional sphere of authority.” [10]

As Michael Crowell, a Professor of Public Law and Government at the University of North Carolina School of Government, explains, the legal understanding of the separation of powers has evolved from the strict interpretation that executive bodies perform executive functions, legislative bodies perform legislative ones, and so on. [11] The blended functions of government agencies, such as independent commissions, inherently have executive, legislative, and judicial roles, which require a more nuanced interpretation of separation of powers. Therefore, Crowell predicts that the General Assembly will win the case of McCrory v. Berger. However, even if the Supreme Court rules in favor of the governors, the General Assembly has many tools, undeniably belonging to the legislative branch, that it can use to reassert its power: requiring confirmation of the governor’s appointees, strategically reclassifying the commissions, and including contingencies in agency budgets. [12]

Separation of powers cases are a rare specimen in the age of modern American Constitutional law. However, they ask a fundamental question of government that should not be belittled: Who gets what power?



[1] Wilson, Reid. "Republican Sweep Extends to State Level." The Washington Post. November 6, 2014. Accessed July 26, 2015. http://www.washingtonpost.com/blogs/govbeat/wp/2014/11/05/republican-sweep-extends-to-state-level/.
[2] "Timeline: Dan River Coal Ash Spill." The News & Observer. February 20, 2015. Accessed July 28, 2015. http://www.newsobserver.com/news/local/article10883951.html.
[3] “Text of ruling in McCrory v. Berger.” The News & Observer. March 16, 2015. Accessed July 27, 2015. http://www.newsobserver.com/news/politics-government/politics-columns-blogs/under-the-dome/article14649578.html
[4] Valencia, Jorge. “NC Supreme Court Considers McCrory-Berger Separation of Powers Case.” North Carolina Public Radio. June 30, 2015. Accessed July 10, 2015. http://wunc.org/post/nc-supreme-court-considers-mccrory-berger-separation-powers-case
[5] Biesecker, Michael. “McCrory sues legislators over coal ash commission.” The Washington Times. November 13, 2014. Accessed July 20, 2015. http://www.washingtontimes.com/news/2014/nov/13/mccrory-sues-legislators-over-coal-ash-commission/?page=all
[6] Sturgis, Sue. “New details emerge on Gov. McCrory’s Duke Energy money ties.” The Institute for Southern Studies. April 22, 2014. Accessed July 26, 2015. http://www.southernstudies.org/2014/04/new-details-emerge-on-gov-mccrorys-duke-energy-mon.html
[7] Sturgis, Sue. “Will Gov. McCrory help his friend Duke Energy capture the N.C. Utility Commission?.” February 13, 2013. Accessed July 26, 2015. http://www.southernstudies.org/2013/02/will-gov-mccrory-help-his-friend-duke-energy-capture-the-nc-utility-commission.html
[8] Henderson, Bruce. “Gov. McCrory: Duke Energy’s coal ash record is ‘quite poor’.” December 7, 2014. Accessed July 27, 2015. http://www.charlotteobserver.com/news/local/article9242477.html
[9] Crowell, Michael. “Perspective on the Separation of Powers Case.” March 31, 2015. Accessed July 10, 2015. http://canons.sog.unc.edu/?p=8053
[10] Crowell, Michael. “Perspective on the Separation of Powers Case.” March 31, 2015. Accessed July 10, 2015. http://canons.sog.unc.edu/?p=8053
[11] Crowell, Michael. “Separation of Powers Case.” Telephone interview by author. July 21, 2015.
[12] Crowell, Michael. “Separation of Powers Case.” Telephone interview by author. July 21, 2015.

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