A Temporary Restraining Order (TRO) filed in favor of Gov. Roy Cooper Tuesday evening cut off what was to be the first of several confirmation hearings in the Senate to approve Cooper’s cabinet nominees.
A three-judge panel of the Wake County Superior Court handed down the ruling blocking Part III of HB 17, but the ruling does not affect the rest of the law.
The change requiring that the Senate approve Cooper’s picks to head some state agencies came in a 2016 bill, which cited the state Constitution, Article III sec. 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.”
Former Rep. Larry Hall (D-Durham), whom Cooper tapped for Secretary of the Department of Military and Veteran Affairs, was set to go before the Commerce and Insurance Committee at 11 a.m. Wednesday, but never showed for the meeting, though the TRO likely would have stopped the committee from proceeding even if Hall had appeared.
After waiting 10 minutes, Sen. Wesley Meredith (R-Cumberland), who chairs the committee, made a statement before adjourning the meeting.
“The purpose of today’s meeting was to implement a transparent and fair process to determine whether Gov. Cooper’s proposed cabinet secretaries are capable, qualified, without a conflict of interest and are willing to follow our laws of North Carolina and our nation,” he said. “The process is about good government and the North Carolina constitution clearly provides in black and white for the Senate to undertake these duties. The nearly identical federal process that is taking place in Washington D.C. even as we speak shows the public is paying attention and we ought to do everything we can to give the people confidence that their state leaders will be accountable to them.
“There is no question these nominees will wield a lot of power, control multi-billion dollar budgets and make decisions that affect millions of North Carolinians, but as of today Gov. Cooper has not even said how much taxpayers are paying these nominees” he continued. “The attempt by the three-judge panel to stop today’s proceeding is unprecedented in state history. Never before has a judge told a representative elected by the citizens that they cannot hold a committee meeting as allowed by the constitution. However, we are going to delay this meeting because the acting secretary is not present.
“But make no mistake, the General Assembly will meet to review the qualifications of Gov. Cooper’s cabinet nominees as allowed by the Constitution and we are going to get answers to questions regarding their qualifications, potential conflicts of interest, and willingness to obey the law. Until then this meeting is adjourned.”
In its ruling the panel said that it found that continuing with the confirmation process would be likely to “sustain irreparable harm” and the issuance of the TRO would protect Cooper’s right while litigation moves forward better than moving forward with the confirmation process while working to settle Cooper’s claim.
The TRO clears the way for Cooper’s nominees to take their positions, unimpeded by the legislature, saying that Cooper’s “selections of the individuals to lead the principal executive departments will not be disrupted in their daily activities to faithfully execute the laws.”
But if the confirmation process were found to be constitutional, then the Senate would be able to move forward with the confirmation process at that time.
Sen. Ralph Hise (R-Madison) said he is confident the meeting could have moved forward toward legislation to approve Hall as the nominee, had he shown up.
“I think we would have been very prepared to begin his process and the legislation had he been here today and they have given him an opportunity to fulfill his obligation,” he said. “I am sure that there are political reasons why he chose not to come and be here. He was probably directed not to be here by the governor, but if he wants to represent this state in the secretary role then he is going to respect the General Assembly and the state law.”
Hise said he can see no possible argument against the state’s authority to continue with the confirmation process laid out in the law.
“I’m not an attorney, I can’t pretend to be one at the General Assembly, but I can see no authority that they have,” he said. “I think you have a governor who’s been attorney general and has a lot of close friends in the judicial branch of government.”
However, the TRO is only good for 10 days and a hearing to dispense with Cooper’s motion for a preliminary injunction against Part III of HB 17 during the court proceedings will be held Friday at 11 a.m. in a location to be determined.
Civitas President Francis De Luca said, “This court ruling is nothing but judicial activism. The decision is truly disappointing, as it positions state courts to become more like federal courts in usurping the power of the elected legislature. The North Carolina constitution plainly speaks to legislative advice and consent on cabinet nominees.
“Rather than putting up a fight, Governor Cooper should embrace transparency and recognize that his appointees will have greater legitimacy and be more effective if they go through the legislative confirmation process.”
Civitas is a Raleigh-based policy organization.