Gov. Roy Cooper’s office filed on Friday a lawsuit contending that the 10-member Rules Review Commission, or RRC, is unconstitutional and should have a majority of its members appointed by the executive branch, not the General Assembly, as the case is now.
The lawsuit filed in Wake County Superior Court argues that the membership of the RRC is not in accordance with the the state constitution’s Separation-of-Powers Clause.
The RRC, an executive branch agency created in 1986 by the General Assembly, reviews and approves rules adopted by state agencies. The 10 members are appointed by the General Assembly, five on the recommendation of the President Pro Tempore and five on the recommendation of the Speaker of the House, which the Cooper administration says gives the legislative branch an unconstitutional veto authority over rules and regulations issued by the executive branch.
“The current makeup of the RRC allows the legislature to interfere with and undermine the executive branch’s authority to establish policy through rulemaking,” according to the governor’s office. “This authority is used to make important rules that protect the environment, safeguard public safety, and preserve public and individual health. It could even block the executive branch’s ability to quickly and fully respond to COVID-19 related issues. In recent years, the RRC has been particularly active in second-guessing the policy judgments of the Department of Health & Human Services.”
The lawsuit contends that the RRC, is “indisputably, an executive agency exercising final executive authority. It has the authority to veto, for substantive reasons, rules and regulations promulgated by executive agencies and commissions. Yet, in spite of the Supreme Court’s clear teaching regarding gubernatorial control of such bodies, the General Assembly continues to appoint all ten commissioners on the RRC.”
The governor has no power to appoint RRC commissioners, supervise activities, and lacks any meaningful control over the RRC, which violates separation of powers and prevents the governor from fulfilling his constitutional duties, the lawsuit continues.
This is not the first lawsuit filed by a North Carolina governor about the unconstitutionality of the RRC. Lawsuits span the last three administrations, under governors of both parties.
The governor’s challenge to the RRC’s appointment structure follows McCrory v. Berger, which the Supreme Court held that the General Assembly cannot appoint a majority of the members of commissions that perform executive functions, like the RRC.