By Nyamekye Daniel
(The Center Square) – Gov. Roy Cooper filed a lawsuit Friday, Aug. 28, challenging the constitutionality of the Rules Review Commission.
Cooper claims the commission is unconstitutional because all of its members are appointed by the General Assembly when he should select most of them.
“The current makeup of the RRC allows the legislature to interfere with and undermine the executive branch’s authority to establish policy through rulemaking,” Cooper’s office said in a statement.
According to North Carolina law, RRC is an executive agency that reviews and approves state agencies’ rules. Created in 1986 by the General Assembly, RRC has veto power over executive agencies and commissions, court documents said.
State law also calls for RRC members to be appointed by the legislature. The House speaker must select five appointees for the two-year terms, and the Senate leader must pick the other five.
After five Rules Review commissioners’ terms ended in June, legislative leaders reappointed four of them and selected a new member.
Cooper contends separation-of-powers rules established by the North Carolina Supreme Court in 2016 and 2018 call for the membership to be changed. He is suing the state, Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.
“The court held in order to fulfill the governor’s constitutional duties and conform with separation-of-power principles, the governor must have sufficient control over the administrative bodies that have final executive authority, such as the authority to promulgate rules and regulations,” court documents said.
Sen. Ralph Hise, R-Mitchell, who co-chairs the Senate Elections Committee, said Friday the lawsuit was a “power grab” by Cooper.
Cooper won a previous legal battle in 2018 after suing for more authority over the N.C. State Board of Elections. Democrats now have full control of the board.
Hise believes Cooper filed the lawsuit because he was displeased with RRC’s decision in May to block rules proposed by NCSBE Executive Director Karen Brinson Bell. The rules would have given Bell the sole authority to change numerous election-related laws, Hise said.
“Now, the governor is using the same strategy he employed to gain control of elections administration to try to gain control of the Rules Review Commission,” Hise said. “His answer for getting caught trying to illegally consolidate power over his own election is to sue to undo a check on executive authority that’s existed for 34 years.”
Cooper said he is concerned RRC may restrict his office from responding to the COVID-19 crisis.
“In recent years, the RRC has been particularly active in second-guessing the policy judgments of the Department of Health and Human Services,” a statement from Cooper’s office said.