Hundreds of pages into the North Carolina state budget, there’s a section that doesn’t have to do with money. Instead it has to do with power — specifically, the governor’s power during an emergency.
Republicans who control the legislature have criticized Democratic Gov. Roy Cooper’s handling of restrictions during the coronavirus pandemic, particularly the limits on businesses and the multiple extensions of executive orders over more than a year. Cooper has now lifted nearly all restrictions, except for mask requirements in certain settings like schools and health care facilities.
Several bills failed to become law over the past year that challenged the governor’s restrictions — all vetoed by Cooper. One tactic in the bills to limit Cooper’s power during states of emergency has been to require agreement from a majority of the rest of the Council of State, who are statewide elected officials. Another has been to limit the length of orders. One bill earlier this year passed the House but didn’t come up for a vote in the Senate.
The provision in the proposed budget would change state law to require agreement from the Council of State within 10 days of the governor issuing an executive order. If approved, the order would expire 45 days later unless the General Assembly takes action to extend it longer.
The budget provision also says that “the Governor shall not issue a substantially similar executive order arising from the same events that form the basis to issue the initial executive order that failed ...” related to Council of State concurrence and any extension from the legislature.
The Council of State includes the governor, lieutenant governor, attorney general, state treasurer, superintendent of public instruction, auditor, labor commission, agriculture commissioner, secretary of state and insurance commissioner. There is currently a Republican majority on the council. State law currently requires Council of State approval in certain situations. A lawsuit in 2020 from then-Lt. Gov. Dan Forest to challenge some orders that limited businesses failed.
Asked about changes to emergency powers previously, Cooper has told reporters that he doesn’t want changes in the middle of a pandemic.
The provision would be effective Sept. 1.
When Republicans in both chambers proposed limiting gubernatorial powers this spring, House Majority Leader Rep. John Bell, a Wayne County Republican, told reporters it was “not about reopening, or anything dealing with masks.” Rather, he said, it was about how one person should not have unilateral control.
Rep. Destin Hall, a Caldwell County Republican, said at the time that ““we need buy-in from folks” when government officials make statewide decisions. If Cooper had support from the rest of the Council of State with the COVID-19-related orders, “there wouldn’t have been as much partisan bickering,” Hall said.
However Rep. Rachel Hunt, a Mecklenburg County Democrat, said in March that she supported the Executive Mansion being “where the buck stops.”
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