IN THE SUPREME COURT OF NORTH CAROLINA

No. 113A15

Filed 29 January 2016

STATE OF NORTH CAROLINA, upon the relation of PATRICK L. McCRORY, 

individually and in his official capacity as Governor of the State of North Carolina; 

JAMES B. HUNT, JR.; and JAMES G. MARTIN

v.

PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North 

Carolina Senate; TIMOTHY K. MOORE, in his official capacity as Speaker of the 

North Carolina House of Representatives; and, in their official capacities as 

members of the Coal Ash Management Commission, HARRELL JAMISON AUTEN 

III, TIM L. BENNETT, D. ALLEN HAYES, SCOTT FLANAGAN, RAJARAM 

JANARDHANAM, and LISA D. RIEGEL

Appeal pursuant to N.C.G.S. § 7A-27(a1) from a decision and judgment entered 

on 16 March 2015 by a three-judge panel of the Superior Court, Wake County,

appointed under N.C.G.S. § 1-267.1(b1). Heard in the Supreme Court on 30 June 

2015.

Robinson, Bradshaw & Hinson, P.A., by John R. Wester, David C. Wright, III, 

and Andrew A. Kasper, for plaintiff-appellee Governors; and Office of General 

Counsel to the Governor, by Robert C. Stephens, Jr., General Counsel, and 

Jonathan R. Harris, Associate General Counsel, for Governor McCrory, 

plaintiff-appellee.

K&L Gates LLP, by John H. Culver III and Brian C. Fork, for legislator 

defendant-appellants; and Roy Cooper, Attorney General, by Alexander McC. 

Peters, Senior Deputy Attorney General, and Melissa L. Trippe and Ann W. 

Matthews, Special Deputy Attorneys General, for Coal Ash Management 

Commission defendant-appellants.

Arch T. Allen III, pro se, amicus curiae.

Troutman Sanders LLP, by Christopher G. Browning, Jr. and C. Elizabeth 

Hall, for Carolinas AGC (Associated General Contractors), Employers Coalition 

of North Carolina, National Federation of Independent Business Small 

Business Legal Center, North Carolina Chamber, North Carolina Forestry 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-2-

Association, North Carolina Home Builders Association, North Carolina 

Manufacturers Alliance, and North Carolina Retail Merchants Association, 

amici curiae.

Blanchard, Miller, Lewis & Isley, P.A., by E. Hardy Lewis, for North Carolina 

Council of State members Cherie Berry, Commissioner of Labor; Wayne 

Goodwin, Commissioner of Insurance; Steve Troxler, Commissioner of 

Agriculture; and Beth A. Wood, State Auditor, amici curiae.

Campbell Shatley, PLLC, by Robert F. Orr, for North Carolina Institute for 

Constitutional Law, amicus curiae.

MARTIN, Chief Justice.

Our founders believed that separating the legislative, executive, and judicial 

powers of state government was necessary for the preservation of liberty. The 

Constitution of North Carolina therefore vests each of these powers in a different 

branch of government and declares that “[t]he legislative, executive, and supreme 

judicial powers of the State government shall be forever separate and distinct from 

each other.” N.C. Const. art. I, § 6.

Each branch of government has a distinctive purpose. The General Assembly,

which comprises the legislative branch, enacts laws that “protect or promote the 

health, morals, order, safety, and general welfare of society.” State v. Ballance, 

229 N.C. 764, 769, 51 S.E.2d 731, 734 (1949); see also N.C. Const. art. II, §§ 1, 20. 

The executive branch, which the Governor leads, faithfully executes, or gives effect 

to, these laws. See N.C. Const. art. III, §§ 1, 5(4). The judicial branch interprets the 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-3-

laws and, through its power of judicial review, determines whether they comply with 

the constitution. See id. art. IV, § 1; Bayard v. Singleton, 1 N.C. 5, 6-7 (1787). 

The constitution also incorporates a system of checks and balances that gives 

each branch some control over the others. For example, the Lieutenant Governor is 

the President of the Senate and casts tie-breaking votes when the Senate is equally 

divided. N.C. Const. art. III, § 6. At the same time, the General Assembly can assign 

duties to the Lieutenant Governor. Id. Still, the separation of powers clause requires 

that, as the three branches of government carry out their duties, one branch will not 

prevent another branch from performing its core functions. See Hart v. State, 

368 N.C. 122, 126-27, 774 S.E.2d 281, 285 (2015).

In this case, plaintiffs challenge legislation that authorizes the General 

Assembly to appoint a majority of the voting members of three administrative 

commissions. Plaintiffs contend that, by giving itself the power to appoint 

commission members, the General Assembly has usurped Governor McCrory’s

constitutional appointment power and interfered with his ability to take care that the 

laws are faithfully executed. Plaintiffs’ contentions raise two important questions 

about the function and structure of state government: (1) Does the appointments 

clause in Article III, Section 5(8) of the state constitution prohibit the General 

Assembly from appointing statutory officers to administrative commissions? (2) If 

not, do the specific appointment provisions challenged in this case violate the 

separation of powers clause in Article I, Section 6?
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-4-

We hold that, while the appointments clause itself places no restrictions on the 

General Assembly’s ability to appoint statutory officers, the challenged provisions

violate the separation of powers clause. In short, the legislative branch has exerted

too much control over commissions that have final executive authority. By doing so, 

it has prevented the Governor from performing his express constitutional duty to take 

care that the laws are faithfully executed.

I

The Energy Modernization Act and the Coal Ash Management Act of 2014 

create three administrative commissions that are housed in the executive branch of 

government: the Oil and Gas Commission, the Mining Commission, and the Coal Ash 

Management Commission. See generally N.C.G.S. §§ 143B-290 to -293.6 (2014)

(effective July 31, 2015); id. §§ 130A-309.200 to -309.231 (2014). The Acts also specify 

how commission members will be appointed and how they may be removed. See 

generally id.

The Oil and Gas Commission is housed in the Department of Environment and 

Natural Resources (DENR)1 and has the power to promulgate rules, make 

 

1 The Department of Environment and Natural Resources is now called the 

Department of Environmental Quality. Current Operations and Capital Improvements 

Appropriations Act of 2015, ch. 241, sec. 14.30(c), 2015-5 N.C. Adv. Legis. Serv. 38, 322 

(LexisNexis). Because the Energy Modernization Act and the Coal Ash Management Act 

predate this name change and refer to the department as the Department of Environment 

and Natural Resources, we will continue to use this superseded name.
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-5-

determinations, and issue orders consistent with the Oil and Gas Conservation Act. 

N.C.G.S. § 143B-293.1. The commission has nine members: three appointed by the 

Governor and six appointed by the General Assembly. Id. § 143B-293.2(a1). Each 

member serves a three-year term. Id. § 143B-293.2(b). A majority of the members 

constitutes a quorum for the transaction of business. Id. § 143B-293.2(e). The 

commission elects one of its members to serve as chair. Id. § 143B-293.4. The chair 

appoints members of the commission to a Committee on Civil Penalty Remissions, 

which has the power to remit civil environmental penalties that DENR imposes. Id.

§ 143B-293.6(b), (c). The Governor may remove any member of the commission for 

misfeasance, malfeasance, or nonfeasance. Id. § 143B-293.2(c)(1).

Like the Oil and Gas Commission, the Mining Commission is housed in DENR. 

Id. § 143B-290. The Mining Commission has the power to promulgate mining rules

and affirm, modify, or overrule permit decisions that DENR makes. Id.

§ 143B-290(1)(c)-(e). This commission has eight members: two appointed by the 

Governor; four appointed by the General Assembly; the chair of the North Carolina 

State University Minerals Research Laboratory Advisory Committee; and the State 

Geologist, who is ex officio and nonvoting. Id. § 143B-291(a1). Each member serves 

a six-year term. Id. § 143B-291(b). As with the Oil and Gas Commission, a majority 

of the Mining Commission’s members constitutes a quorum for the transaction of 

business, and the Governor may remove any member for misfeasance, malfeasance, 

or nonfeasance. Id. § 143B-291(d), (f).
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-6-

The Coal Ash Management Commission is administratively located in the 

Division of Emergency Management of the Department of Public Safety but is 

expressly required to exercise its powers and duties “independently,” without “the 

supervision, direction, or control of the Division or Department.” 

Id. § 130A-309.202(n). This commission has the power to review and approve coal 

ash surface impoundment classifications and closure plans that DENR proposes. 

Id. § 130A-309.202(f); see also id. §§ 130A-290(a)(4a), -309.213, -309.214. The 

commission has nine members: three appointed by the Governor and six appointed 

by the General Assembly. Id. § 130A-309.202(b). Each member serves a six-year 

term. Id. § 130A-309.202(o). Five members constitute a quorum for the transaction 

of business. Id. § 130A-309.202(h). The Governor appoints the chair of the Coal Ash 

Management Commission from among the nine members, and that member serves 

as chair at the pleasure of the Governor. Id. § 130A-309.202(c). As with the other 

two commissions, the Governor may remove any member of the Coal Ash 

Management Commission for misfeasance, malfeasance, or nonfeasance. Id.

§ 130A-309.202(e).

On 13 November 2014, plaintiffs filed a complaint in Superior Court, Wake 

County, that challenged the constitutionality of certain provisions in the Acts. 

Plaintiffs argued that the provisions authorizing the General Assembly to appoint 

members to the commissions—specifically, N.C.G.S. §§ 130A-309.202(b), 143B291(a1), and 143B-293.2(a1)—violate the appointments clause in Article III, 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-7-

Section 5(8) and the separation of powers clause in Article I, Section 6. Plaintiffs also 

argued that the provision requiring the Coal Ash Management Commission to 

exercise its powers and duties independently of the Division of Emergency 

Management and the Department of Public Safety, see N.C.G.S. § 130A-309.202(n),

violates Article I, Section 6 and Article III, Sections 1 and 5(4). Plaintiffs sought a 

declaration that the challenged provisions are unconstitutional.

2 In addition, because

the General Assembly had already made appointments to the Coal Ash Management 

Commission, plaintiffs requested that those appointees be removed.

On 16 March 2015, a three-judge panel of the superior court determined that 

the challenged appointment provisions did not violate the appointments clause but 

did violate the separation of powers clause. The panel also determined that the Coal 

Ash Management Commission’s independent status violated the separation of powers 

clause. Finally, the panel dismissed without prejudice plaintiffs’ action to remove 

Coal Ash Management Commission appointees. Defendants appealed directly to this 

Court pursuant to N.C.G.S. § 7A-27(a1) (2014). 

 

2 Plaintiffs also sought a declaration that a provision of the Coal Ash Management Act 

requiring the Governor to issue an executive order, see N.C.G.S. § 130A-309.202(j) (2014) 

(repealed 2015), was unconstitutional. The three-judge panel granted declaratory relief to 

plaintiffs on this issue, and the General Assembly subsequently repealed the provision. Act 

of Apr. 16, 2015, ch. 9, sec. 1.1, 2015-1 N.C. Adv. Legis. Serv. 63, 65 (LexisNexis). Defendants 

did not appeal this issue and, in any event, it is moot. 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-8-

II

This Court construes and applies the provisions of the Constitution of North 

Carolina with finality. Hart, 368 N.C. at 130, 774 S.E.2d at 287; State ex rel. Martin 

v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 479 (1989). We review constitutional 

questions de novo. Piedmont Triad Reg’l Water Auth. v. Sumner Hills, Inc., 353 N.C. 

343, 348, 543 S.E.2d 844, 848 (2001). In exercising de novo review, we presume that 

laws enacted by the General Assembly are constitutional, and we will not declare a 

law invalid unless we determine that it is unconstitutional beyond reasonable doubt. 

Hart, 368 N.C. at 131, 774 S.E.2d at 287-88; Baker v. Martin, 330 N.C. 331, 334-35, 

410 S.E.2d 887, 889 (1991). In other words, the constitutional violation must be plain 

and clear. Preston, 325 N.C. at 449, 385 S.E.2d at 478. To determine whether the 

violation is plain and clear, we look to the text of the constitution, the historical 

context in which the people of North Carolina adopted the applicable constitutional 

provision, and our precedents. See id. at 449, 385 S.E.2d at 479 (“In interpreting our 

Constitution—as in interpreting a statute—where the meaning is clear from the 

words used, we will not search for a meaning elsewhere.”); Sneed v. Greensboro City 

Bd. of Educ., 299 N.C. 609, 613, 264 S.E.2d 106, 110 (1980) (“Inquiry must be had 

into the history of the questioned provision and its antecedents, the conditions that 

existed prior to its enactment, and the purposes sought to be accomplished by its 

promulgation.”); Elliott v. State Bd. of Equalization, 203 N.C. 749, 753, 166 S.E. 918, 

921 (1932) (“Likewise, we may have recourse to former decisions, among which are 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-9-

several dealing with the subject under consideration.”). With these principles in 

mind, we now examine the two questions raised by defendants’ appeal.

A

We first address whether the appointments clause in Article III, Section 5(8) 

prohibits the General Assembly from appointing statutory officers. This clause

states: “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.” N.C. Const. art. III, § 5(8). Plaintiffs contend that the clause gives the 

Governor broad power to appoint both constitutional and statutory officers. In 

defendants’ view, the appointments clause implicitly gives the appointment power to 

the General Assembly. They cite the maxim that all power not expressly limited by 

the people in the constitution remains with the people and “is exercised through the 

General Assembly, which functions as the arm of the electorate.” Pope v. Easley, 

354 N.C. 544, 546, 556 S.E.2d 265, 267 (2001) (per curiam). Based on our review of 

the text of the appointments clause, its historical development, and our precedents 

interpreting it, we conclude that this clause gives the Governor the exclusive 

authority to appoint constitutional officers whose appointments are not otherwise 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-10-

provided for by the constitution. The appointments clause does not prohibit the 

General Assembly from appointing statutory officers to administrative commissions.3

The Constitution of 1776 did not have an analogue to the appointments clause. 

That constitution had specific provisions that expressly authorized the General 

Assembly to appoint certain officers. These officers included the Governor, N.C. 

Const. of 1776, § 15; all seven members of the Council of State, id. § 16; and the judges

of the Supreme Courts of Law and Equity, id. § 13. As a result, the General Assembly 

was the general appointing authority under our state’s first constitution. People ex 

rel. Nichols v. McKee, 68 N.C. 429, 431-32 (1873).

In 1835, the people ratified a constitutional amendment that gave them the 

power to directly elect the Governor. N.C. Const. of 1776, Amends. of 1835, art. II, 

§ 1. When they ratified the Constitution of 1868, they then shifted appointment 

power from the General Assembly to the Governor. McKee, 68 N.C. at 433. The

Constitution of 1868 removed all of the provisions that had authorized the General 

 

3 Our interpretation of the appointments clause in the state constitution differs from 

the United States Supreme Court’s interpretation of the federal constitution’s appointments 

clause. Under the latter clause, “[p]rincipal officers are selected by the President with the 

advice and consent of the Senate,” and Congress may allow “[i]nferior officers . . . to be 

appointed by the President alone, by the heads of departments, or by the Judiciary.” 

Buckley v. Valeo, 424 U.S. 1, 132 (1976) (per curiam); see U.S. Const. art. II, § 2, cl. 2. The 

text and drafting history of the federal clause indicate that the framers of the United States 

Constitution deliberately denied Congress “any authority itself to appoint those who were 

‘Officers of the United States.’ ” Buckley, 424 U.S. at 129. Congress therefore may not vest 

the appointment of any officers of the United States with itself or its own officers. Id. at 127. 

North Carolina’s appointments clause, however, differs in both text and history.
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-11-

Assembly to appoint executive and judicial officers.4 Instead, it introduced the 

appointments clause, which stated:

The Governor shall nominate, and, by and with the advice 

and consent of a majority of the Senators elect, appoint, all 

officers whose offices are established by this Constitution, 

or which shall be created by law, and whose appointments 

are not otherwise provided for, and no such officer shall be 

appointed or elected by the General Assembly.

N.C. Const. of 1868, art. III, § 10.

Shortly after the Constitution of 1868 was ratified, this Court stated that the 

phrase “whose appointments are not otherwise provided for” referred to those 

appointments not otherwise provided for by the constitution itself. People ex rel. 

Welker v. Bledsoe, 68 N.C. 457, 462-64 (1873); State ex rel. Clark v. Stanley, 

66 N.C. 59, 63 (1872). By 1875, it was “settled that the words ‘otherwise provided for’ 

mean[t] otherwise provided for by the Constitution.” People ex rel. Cloud v. Wilson, 

72 N.C. 155, 158 (1875) (citing Clark and Welker); accord Trs. of Univ. of N.C. v. 

McIver, 72 N.C. 76, 83 (1875). This Court also observed that the Constitution of 1868 

had “superadded” the phrase “and no such officer shall be appointed or elected by the 

General Assembly” to ensure that the General Assembly could not appoint 

constitutional or statutory officers, except where the constitution expressly provided 

for it. Clark, 66 N.C. at 63; see also Welker, 68 N.C. at 463-64; McKee, 68 N.C. at 432-

 

4 The Constitution of 1868 did give the General Assembly the power to appoint 

members of the Board of Public Charities. See N.C. Const. of 1868, art. XI, § 7.
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-12-

34. Under the original version of the appointments clause, then, the Governor had 

the exclusive power to appoint all constitutional and statutory officers unless the 

constitution itself provided otherwise. See also State ex rel. Salisbury v. Croom, 

167 N.C. 223, 226, 83 S.E. 354, 354-55 (1914); State Prison v. Day, 124 N.C. 362,

366-67, 32 S.E. 748, 749 (1899).

This expansive shift in the appointment power was “not . . . satisfactory to the 

dominant sentiment in the State,” Salisbury, 167 N.C. at 226, 83 S.E. at 355, and was 

short-lived. In 1876, the people ratified a set of thirty constitutional amendments. 

John L. Sanders, Our Constitutions: A Historical Perspective, in Elaine F. Marshall, 

N.C. Dep’t of Sec’y of State, North Carolina Manual 2011-2012 73, 76, 

https://www.secretary.state.nc.us/Publications/manual.aspx. These amendments 

restored much of the power that the General Assembly had lost in the Constitution 

of 1868. Id. at 77. One amendment modified the appointments clause, which now 

stated:

The Governor shall nominate, and by and with the advice 

and consent of a majority of the Senators elect, appoint all 

officers, whose offices are established by this Constitution, 

and whose appointments are not otherwise provided for.

N.C. Const. of 1868, art. III, § 10 (1876). We have indicated that the people 

purposefully deleted the phrases “or which shall be created by law” and “and no such 

officer shall be appointed or elected by the General Assembly” to restore the General 

Assembly’s ability to appoint statutory officers. See State ex rel. Cherry v. Burns, 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-13-

124 N.C. 761, 765, 33 S.E. 136, 137 (1899). In other words, the amended clause no 

longer gave the Governor the constitutional power to appoint statutory officers. Id.; 

see also Salisbury, 167 N.C. at 226, 83 S.E. at 355 (“It will thus be noted that the 

inhibition on the legislative power to appoint to office is removed and the inherent 

power of the Governor to appoint is restricted to constitutional offices and where the 

Constitution itself so provides.”). But the amendment did not change the language 

of the phrase “whose appointments are not otherwise provided for,” even though it 

was ratified in the wake of this Court’s authoritative and then-recent 

pronouncements about that phrase’s meaning. See Welker, 68 N.C. at 462-64; Clark, 

66 N.C. at 63. That phrase continued to mean “provided [for] by the constitution.” 

Cherry, 124 N.C. at 764, 33 S.E. at 137.

In sum, this amendment to the appointments clause authorized the Governor 

to appoint only constitutional officers whose appointments were not otherwise 

provided for by the constitution. Because the scope of the appointments clause after 

1876 no longer encompassed statutory officers, the clause did not prohibit the General 

Assembly from appointing them. Salisbury, 167 N.C. at 226, 83 S.E. at 355; Cherry, 

124 N.C. at 765, 33 S.E. at 137; Cunningham v. Sprinkle, 124 N.C. 638, 641, 

33 S.E. 138, 138-39 (1899); Day, 124 N.C. at 366-67, 32 S.E. at 749; State ex rel. Ewart 

v. Jones, 116 N.C. 570, 571-74, 21 S.E. 787, 787-88 (1895).
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-14-

The appointments clause did not change again until the people adopted the 

current version of the clause in the Constitution of 1971. The current appointments 

clause states:

Appointments. 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.

N.C. Const. art. III, § 5(8). When the people enacted the current version of the clause, 

they deleted the phrase “whose offices are established by this Constitution.” But, as 

in 1876, they did not disturb the phrase “whose appointments are not otherwise 

provided for.” Compare N.C. Const. of 1868, art. III, § 10 (1876), with N.C. Const. 

art. III, § 5(8).

We conclude that the latter phrase still means “whose appointments are not 

otherwise provided for by the Constitution.” Welker, 68 N.C. at 463 (emphasis added). 

To conclude otherwise would imply that the drafters of the Constitution of 1971 

intended to change the meaning of this phrase while using the same words. That

inference would not be justified, especially since this Court had already given the 

phrase a settled construction before 1971.

We also conclude that the omission of the phrase “whose offices are established 

by this Constitution” in the current version of the appointments clause does not affect 

the clause’s meaning. At first glance, this omission seems to restore the Governor’s 

exclusive power to appoint statutory officers, whose offices are not established by the 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-15-

constitution. But the text of the current clause, as a whole, is unclear. Just as the 

phrase “whose appointments are not otherwise provided for” refers only to those 

appointments not otherwise provided for in the constitution itself, the phrase “all 

officers” might refer only to constitutional officers. The report of the North Carolina 

State Constitution Study Commission that drafted and proposed the Constitution of 

1971 resolves this ambiguity. Cf. Sneed, 299 N.C. at 615-16, 264 S.E.2d at 112 

(relying on this report to discern the meaning of another provision in the current 

constitution). That report shows that the current appointments clause does not 

enlarge the Governor’s appointment power.

According to the report, the Study Commission did not intend for the proposed 

constitution’s revisions “to bring about any fundamental change in the power of state 

and local government or the distribution of that power.” Report of the North Carolina 

State Constitution Study Commission 4 (1968). The report explains that the proposed 

constitution contained “editorial pruning, rearranging, rephrasing, and modest 

amendments,” but that the Study Commission had reserved its “more substantial 

changes” for a separate set of amendments that it was proposing along with the 

proposed constitution. Id. at 29. And the report notes that “[a]bbreviation of the 

constitution for brevity’s sake . . . has been an incident of [the Study Commission’s] 

work, since the great majority of the changes embraced in the proposed constitution 

take the form of deletions of or contractions in language.” Id.
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-16-

The report then addresses the proposed changes to Article III specifically. It 

states that, although the Study Commission “reorganized and abbreviated” Article 

III “by the omission of repetitive, legislative-type, and executed provisions,” the 

proposed constitution “contains few substantive changes of note” to that Article. Id.

at 31. The report goes on to discuss these few substantive changes but does not 

mention the appointments clause or anything about the appointment power. See id.

The report also states that the Study Commission was “recommending several 

changes that affect the executive branch of state government and especially the 

Governor,” but that “these [changes] are of sufficient moment that they take the form 

of separate amendments.” Id. And the Study Commission did propose a separate 

amendment that would have made significant substantive changes to the 

appointments clause. See id. at 47. The amendment would have given the Governor 

the power to “appoint and . . . remove the heads of all administrative departments 

and agencies of the State,” and would have stated that “[a]ll other officers in the 

administrative service of the State shall be appointed and may be removed as 

provided by law.” Id. (quoting the Study Commission’s proposed Amendment No. 5). 

Unlike the “general editorial revision” that the adopted language embodied, this

amendment entailed “a substantive constitutional change of such importance that . . .

the voters should have a chance to act upon it independently.” Id. at 4. The House 

Committee on Constitutional Amendments gave the amendment an unfavorable 

report, however, and the General Assembly did not submit it to the people for 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-17-

ratification. See N.C. House Journal, Reg. Sess. 1969, at 518, 520 (recording the 

introduction of the proposed amendment in H.B. 880); id. at 755, 757 (recording the 

unfavorable committee report on H.B. 880; no further action noted).

Given how careful the Study Commission was to identify any substantive 

changes in the proposed constitution—and given that the Study Commission 

proposed major substantive changes by separate amendments—it would be 

unreasonable to say that deleting the phrase “whose offices are established by this 

Constitution” dramatically changed the appointments clause’s meaning. The 

Governor’s power to appoint officers under the clause thus continues to extend only 

to constitutional officers.

As a result, the appointments clause means the same thing now that it did in 

1876. It authorizes the Governor to appoint all constitutional officers whose 

appointments are not otherwise provided for by the constitution. It follows that the 

appointments clause does not prohibit the General Assembly from appointing 

statutory officers to administrative commissions.

We now turn to plaintiffs’ separation of powers challenge.

B

Plaintiffs argue that the challenged provisions violate the separation of powers 

clause in Article I, Section 6 by preventing the Governor from performing his

constitutional duty under Article III, Section 5(4). To address an Article I, Section 6 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-18-

challenge, we necessarily examine the text of the constitution, our constitutional 

history, and this Court’s separation of powers precedents. 

The separation of powers clause declares that “[t]he legislative, executive, and 

supreme judicial powers of the State government shall be forever separate and 

distinct from each other.” N.C. Const. art. I, § 6. This principle is fundamental to

our form of government and has appeared in each of our state’s constitutions. See id.; 

N.C. Const. of 1868, art. I, § 8; N.C. Const. of 1776, Declaration of Rights § IV; 

see also State ex rel. Wallace v. Bone, 304 N.C. 591, 595-601, 596 n.2, 286 S.E.2d 79, 

81-84, 82 n.2 (1982).

Although the text of the separation of powers clause has changed very little 

since 1776, the powers that the current constitution allocates to the legislative and 

executive branches have changed significantly. In particular, the General Assembly 

lost the power to appoint the Governor in 1835, see N.C. Const. of 1776, Amends. 

of 1835, art. II, § 1; lost the power to appoint the Council of State in 1868, see N.C. 

Const. of 1868, art. III, §§ 1, 14; and has never regained the full scope of appointment 

power that it had in 1776. And unlike the Constitution of 1776, our subsequent state 

constitutions have given the Governor the duty to take care that the laws are 

faithfully executed. See N.C. Const. art. III, § 5(4); N.C. Const. of 1868, art. III, § 7. 

Because the “powers” that must be kept “forever separate and distinct from each 

other,” N.C. Const. art. I, § 6, are different in the current constitution than they were 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-19-

in the original constitution, the separation of powers clause applies differently as 

well.

The clearest violation of the separation of powers clause occurs when one 

branch exercises power that the constitution vests exclusively in another branch. 

See Houston v. Bogle, 32 N.C. 496, 503-04 (1849). Other violations are more nuanced, 

such as when the actions of one branch prevent another branch from performing its 

constitutional duties. See Bacon v. Lee, 353 N.C. 696, 715, 549 S.E.2d 840, 853, 

cert. denied, 533 U.S. 975 (2001). When we assess a separation of powers challenge 

that implicates the Governor’s constitutional authority, we must determine whether 

the actions of a coordinate branch “unreasonably disrupt a core power of the 

executive.” Id. at 717, 549 S.E.2d at 854; see also In re Alamance Cty. Ct. Facils., 

329 N.C. 84, 100-01, 405 S.E.2d 125, 133 (1991) (stating that one branch “must 

minimize the encroachment” on another branch “in appearance and in fact”). As part 

of the inquiry in this case, we must also consider whether the General Assembly has 

“retain[ed] some control” over the executive branch’s functions. Wallace, 304 N.C. at 

608, 286 S.E.2d at 88.

In the current constitution, Article III, Section 5(4) gives the Governor the duty 

to “take care that the laws be faithfully executed.” The challenged legislation 

implicates this constitutional duty because, as the three-judge panel correctly 

observed, all three commissions “are primarily administrative or executive in 

character,” and because they have final authority over executive branch decisions. 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-20-

See N.C.G.S. § 130A-309.202(f) (authorizing the Coal Ash Management Commission 

to overrule DENR classifications and closure plans for coal ash surface 

impoundments); id. § 143B-290 (authorizing the Mining Commission to overrule 

certain permit decisions that DENR makes); id. § 143B-293.6(b) (authorizing a 

committee within the Oil and Gas Commission to remit civil environmental penalties 

that DENR imposes). In light of the final executive authority that these three 

commissions possess, the Governor must have enough control over them to perform 

his constitutional duty.

5

The degree of control that the Governor has over the three commissions 

depends on his ability to appoint the commissioners, to supervise their day-to-day 

activities, and to remove them from office. The legislation that plaintiffs challenge 

here limits each of these methods of control. It gives the General Assembly the power 

to appoint a majority of each commission’s voting members and gives the Governor 

only two or three appointees per commission. See id. § 130A-309.202(b); id.

§§ 143B-291(a1), -293.2(a1). It also gives each commission final executive authority 

 

5 Our opinion takes no position on how the separation of powers clause applies to those 

executive departments that are headed by the independently elected members of the Council 

of State. See N.C. Const. art. III, § 7 (providing for the election of the Secretary of State, 

Auditor, Treasurer, Superintendent of Public Instruction, Attorney General, Commissioner 

of Labor, Commissioner of Agriculture, and Commissioner of Insurance). The facts of this 

case concern DENR, which unquestionably falls under the Governor’s purview. See N.C.G.S. 

§ 143B-6(6) (2013) (identifying DENR as a principal department); id. § 143B-9 (2013) (“The 

head of each principal State department, except those departments headed by popularly 

elected officers, shall be appointed by the Governor and serve at his pleasure.”).
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-21-

over certain DENR decisions, sapping the power of a principal administrative 

department over which the Governor has greater control. See id. § 130A-309.202(f); 

id. §§ 143B-290(1)(c), -293.6; see also id. §§ 143B-9, -6(6). It insulates the Coal Ash 

Management Commission from executive branch control even more by requiring the 

commission to exercise its powers and duties “independently,” without the 

“supervision, direction, or control” of the Division of Emergency Management or the 

Department of Public Safety. Id. § 130A-309.202(n). And the challenged legislation

sharply constrains the Governor’s power to remove members of any of the three 

commissions, allowing him to do so only for cause. Id. § 130A-309.202(e); id. 

§§ 143B-291(d), -293.2(c)(1).

We cannot adopt a categorical rule that would resolve every separation of 

powers challenge to the legislative appointment of executive officers. Because each 

statutory scheme will vary the degree of control that legislative appointment 

provisions confer on the General Assembly, we must resolve each challenge by

carefully examining its specific factual and legal context. While the General 

Assembly’s ability to appoint an officer obviously does not give it the power to control 

what that officer does, we must examine the degree of control that the challenged 

legislation allows the General Assembly to exert over the execution of the laws.

Using that approach here, we hold that the challenged appointment provisions 

violate the separation of powers clause. When the General Assembly appoints 

executive officers that the Governor has little power to remove, it can appoint them 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-22-

essentially without the Governor’s influence. That leaves the Governor with little 

control over the views and priorities of the officers that the General Assembly 

appoints. When those officers form a majority on a commission that has the final say 

on how to execute the laws, the General Assembly, not the Governor, can exert most 

of the control over the executive policy that is implemented in any area of the law 

that the commission regulates. As a result, the Governor cannot take care that the 

laws are faithfully executed in that area. The separation of powers clause plainly 

and clearly does not allow the General Assembly to take this much control over the 

execution of the laws from the Governor and lodge it with itself. See Bacon, 

353 N.C. at 717-18, 549 S.E.2d at 854; Wallace, 304 N.C. at 608, 286 S.E.2d at 88; 

see also N.C. Const. art. III, § 5(4).

6

Under the rule that defendants advance, the General Assembly could appoint 

every statutory officer to every administrative body, even those with final executive 

authority, and could prohibit the Governor from having any power to remove those 

 

6 Because we hold that the challenged appointment provisions violate the separation 

of powers clause, we can no longer address plaintiffs’ separate claim that the Coal Ash 

Management Commission’s statutory mandate to act “independently” of the Division of 

Emergency Management and the Department of Public Safety violates that clause as well. 

The facts that existed when plaintiffs brought their claim—namely, that the Coal Ash 

Management Commission has final executive authority, that the Governor has limited 

removal power, and that the General Assembly appoints a majority of its voting members—

no longer exist now that the challenged appointment provisions have been invalidated. As a 

result, plaintiffs’ claim under the current statutory scheme is moot. We therefore vacate the 

portion of the three-judge panel’s decision that held N.C.G.S. § 130A-309.202(n)

unconstitutional.
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-23-

officers. This rule would nullify the separation of powers clause, at least as it 

pertained to the General Assembly’s ability to control the executive branch.

Our appointment cases do not embrace defendants’ proposed rule. Many do 

not even involve separation of powers challenges. See, e.g., Salisbury, 167 N.C. at

227, 83 S.E. at 355 (interpreting two statutes to determine that the Governor’s recess 

appointment without Senate confirmation was valid only until the Senate reconvened 

and confirmed a new appointee); Cherry, 124 N.C. at 764-65, 33 S.E. at 137 

(concluding that the “keeper of the capitol” was outside the scope of the appointments 

clause because it was not a constitutional office); Ewart, 116 N.C. at 573-74, 21 S.E. 

at 788 (determining that the General Assembly’s creation of a new office did not 

create a “vacancy” in that office).

Those appointment cases that do involve separation of powers challenges do 

not establish the proposed rule either. State ex rel. Martin v. Melott does not supply 

a majority rationale that supports its judgment, so it does not establish any 

separation of powers rule at all. Compare 320 N.C. 518, 523-24, 359 S.E.2d 783, 786-

87 (1987) (plurality opinion), with id. at 525-28, 359 S.E.2d at 788-89 (Meyer, J., 

concurring). In Trustees of the University of North Carolina v. McIver, where there 

was a clear majority, this Court held that the General Assembly could elect trustees 

of the University of North Carolina. There, a constitutional amendment separate 

from the appointments clause gave the General Assembly the “unlimited power” to 

determine who would elect the trustees. 72 N.C. at 83-85. The Court concluded that 
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-24-

this absolute discretion necessarily gave the General Assembly the power to elect 

them itself. See id. at 81-87. But that holding has no effect on this case because the 

constitutional provision in question—which pertained only to the University of North 

Carolina and its trustees—does not apply here. In Cunningham v. Sprinkle, a

constitutional amendment that directed the General Assembly to establish the 

Department of Agriculture likewise gave the General Assembly “the largest latitude 

of regulation” in establishing that department. 124 N.C. at 641-42, 33 S.E. at 139. 

The provision in Cunningham also does not apply here.

Notably, Cunningham and McIver both conclude that appointing statutory 

officers is not an exclusively executive prerogative. See Cunningham, 124 N.C. at 

643, 33 S.E. at 139; McIver, 72 N.C. at 85. We agree, and do not deny that the General 

Assembly may generally appoint statutory officers to administrative commissions.7 

We merely deny that it may appoint them in every instance and under all 

circumstances.

III

“A frequent recurrence to fundamental principles is absolutely necessary to 

preserve the blessings of liberty,” N.C. Const. art. I, § 35, and “the principle of 

 

7 As a corollary, the General Assembly may have broader latitude than it does here 

when it appoints members to commissions whose functions are different from those of the 

commissions in the present case, such as the Rules Review Commission. See N.C.G.S. § 143B30.1; id. §§ 150B-2(1d), -21.1 to -21.14 (2013).
STATE EX REL. MCCRORY V. BERGER

Opinion of the Court

-25-

separation of powers is a cornerstone of our state and federal governments,” Wallace, 

304 N.C. at 601, 286 S.E.2d at 84. The appointments clause does not prohibit the 

General Assembly from appointing statutory officers, and the General Assembly can 

appoint them in many instances. But the challenged appointment provisions, in their 

statutory context, prevent the Governor from performing his constitutional duty to 

take care that the laws are faithfully executed. By doing so, these provisions violate

the separation of powers clause.

We therefore modify and affirm the decision of the three-judge superior court 

panel in part and vacate it in part.

MODIFIED AND AFFIRMED IN PART; VACATED IN PART.

Justice NEWBY concurring part and dissenting in part.

This case presents the issue of whether the General Assembly has the 

constitutional power to fill a majority of positions on executive commissions it creates. 

Unlike the Federal Constitution, the state constitution is not an express grant of 

power but a limitation on power. All power not expressly granted to the federal 

government or limited by the constitution resides in the people and is exercised 

through the General Assembly. Since our original Constitution of 1776, except for a 

short time by explicit limitation, the General Assembly has had the constitutional 

authority to provide for the filling of statutory executive positions it creates. As an 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-26-

exercise of the General Assembly’s lawmaking power, this appointment authority,

both constitutionally prescribed and jurisprudentially recognized, does not implicate

separation of powers because under our jurisprudence the authority to appoint the 

official has never been deemed the power to control the appointee. Our state’s 

constitutional text and history and this Court’s precedent demonstrate that when the

legislature statutorily enables itself to select the official, it is simply filling the 

position and not controlling the appointee.8 Because the statutes at issue here are 

constitutional, I must respectfully dissent in part. 

The idea of one branch of government, the judiciary, preventing another 

branch of government, the legislature, through which the people act, from exercising 

its power is the most serious of judicial considerations. See Hoke v. Henderson, 15 

N.C. (4 Dev.) 1, 8 (1833) (“[T]he exercise of [judicial review] is the gravest duty of a 

judge, and is always, as it ought to be, the result of the most careful, cautious, and 

anxious deliberation.”), overruled in part on other grounds by Mial v. Ellington, 134 

N.C. 131, 162, 46 S.E. 961, 971 (1903); Trs. of Univ. of N.C. v. Foy, 5 N.C. (1 Mur.) 58, 

 

8 “The true test is, where does the [state] Constitution lodge the power of electing the 

various public agents of the government . . . .” Cunningham v. Sprinkle, 124 N.C. 638, 642, 

33 S.E. 138, 139 (1899) (quoting Trs. of Univ. of N.C. v. McIver, 72 N.C. 76, 85 (1875)). This 

precise question was asked and answered by this Court over 131 years ago. In rejecting the 

argument that the General Assembly violated separation of powers by exercising 

appointment authority over executive statutory offices, this Court stated that “a mode of 

filling the offices created by law” is the prerogative of the General Assembly, acknowledging 

that filling the position is not exercising the power of the position. Id. at 642-43, 33 S.E. at 

139. (Of note, many of the older opinions referenced in this opinion use the term “selection” 

when referring to a single appointing authority, such as the Governor, and “election” when 

referring to multiple decisionmakers, such as the General Assembly.) 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-27-

89 (1805)9 (Hall, J., dissenting) (“A question of more importance than that arising in 

this case [the constitutionality of a legislative act] cannot come before a court. . . . 

[W]ell convinced, indeed, ought one person to be of another’s error of judgment . . . 

when he reflects that each has given the same pledges to support the Constitution.”). 

Since its inception, the judicial branch has exercised its implied constitutional power 

of judicial review with “great reluctance,” Bayard v. Singleton, 1 N.C. (Mart.) 5, 6

(1787), recognizing that when it strikes down an act of the General Assembly, the 

Court is preventing an act of the people themselves, see Baker v. Martin, 330 N.C. 

331, 336-37, 410 S.E.2d 887, 890 (1991).

All political power resides in the people, N.C. Const. art. I, § 2, and the people 

act through the General Assembly, State ex rel. Ewart v. Jones, 116 N.C. 570, 570, 21 

S.E. 787, 787 (1895) (“[T]he sovereign power resides with the people and is exercised 

by their representatives in the General Assembly.”). Unlike the Federal Constitution, 

“a State Constitution is in no matter a grant of power. All power which is not limited 

by the Constitution inheres in the people, and an act of a State legislature is legal 

when the Constitution contains no prohibition against it.” McIntyre v. Clarkson, 254 

N.C. 510, 515, 119 S.E.2d 888, 891 (1961) (quoting Lassiter v. Northampton Cty. Bd. 

of Elections, 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958), aff’d, 360 U.S. 45, 79 S. 

 

9 The Court of Conference was the predecessor of this Court, which was statutorily 

established in 1818. Walter Clark, History of the Supreme Court of North Carolina, in 177 

N.C. 616, 619-20 (1919); see also Benzien’s Ex’rs v. Lenoir, 11 N.C. (4 Hawks) 403, 406 

(1826) (noting “[t]he act of 1818, New Rev., ch. 962, constituting the present Supreme 

Court” and discussing the Court of Conference). 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-28-

Ct. 985, 3 L. Ed. 2d 1072 (1959)); see also Jones, 116 N.C. at 570-71, 21 S.E. at 787 

(“The only limitation upon this power is found in the organic law, as declared by the 

delegates of the people in convention assembled from time to time.”). The 

presumptive constitutional power of the General Assembly to act is consistent with 

the principle that a restriction on the General Assembly is in fact a restriction on the 

people. Baker, 330 N.C. at 336, 410 S.E.2d at 890 (“[G]reat deference will be paid to 

acts of the legislature—the agent of the people for enacting laws.” (quoting State ex 

rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473, 478 (1989))). Thus, this 

Court presumes that legislation is constitutional, and a constitutional limitation 

upon the General Assembly must be express and demonstrated beyond a reasonable 

doubt. E.g., Hart v. State, 368 N.C. 122, 126, 774 S.E.2d 281, 284 (2015). 

This rigorous standard for constitutional challenges ensures uniformity and 

predictability in the application of our constitution. State v. Emery, 224 N.C. 581, 

584, 31 S.E.2d 858, 861 (1944) (“[Constitutions] should receive a consistent and 

uniform construction . . . even though circumstances may have so changed as to 

render a different construction desirable.” (citing, inter alia, State ex rel. Att’y-Gen. v. 

Knight, 169 N.C. 333, 85 S.E. 418 (1915))); see also Bacon v. Lee, 353 N.C. 696, 712, 

549 S.E.2d 840, 851-52 (“A primary goal of adjudicatory proceedings is the uniform 

application of law. In furtherance of this objective, courts generally consider 

themselves bound by prior precedent, i.e., the doctrine of stare decisis.” (citations 

omitted)), cert. denied, 533 U.S. 975, 122 S. Ct. 22, 150 L. Ed. 2d 804 (2001). Adhering 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-29-

to this fixed standard ensures that we remain true to the rule of law, the consistent 

interpretation and application of the law. State v. Bell, 184 N.C. 701, 720, 115 S.E. 

190, 199 (1922) (Stacy, J., dissenting) (“[T]here must be some uniformity in judicial 

decisions . . . or else the law itself, the very chart by which we are sailing, will become 

as unstable and uncertain as the shifting sands of the sea . . . .”).

Under a proper application of these foundational principles, the constitutional 

challenge here cannot surmount the high bar imposed by the presumption of 

constitutionality given to legislative acts. A clear understanding of the 

constitutionally prescribed powers and their division among the branches of 

government is a basis for stability and cooperation within government. Because that 

stability instills public confidence in governmental actions, this Court should follow 

its time-honored approach in assessing the powers conferred upon each branch of 

government and applying separation of powers principles. 

Since 1776 our constitutions have expressly vested the vast legislative power, 

the power to make laws, in two distinct chambers of the General Assembly, the 

Senate and the House of Representatives. N.C. Const. art. II, § 1; N.C. Const. of 1868, 

art. II, § 1; N.C. Const. of 1776, § I; see also Legislative Power, Black’s Law Dictionary 

(10th ed. 2014) (“The power to make laws and to alter them; a legislative body’s 

exclusive authority to make, amend, and repeal laws.”). This express power to make 

laws is broad and has not changed; it is limited only as expressly forbidden by the 

constitution and by federal law. McIntyre, 254 N.C. at 515, 119 S.E.2d at 891-92; 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-30-

Jones, 116 N.C. at 570-71, 21 S.E. at 787; see, e.g., Bayard, 1 N.C. (Mart.) at 7 

(declaring an act of the General Assembly unconstitutional because it violated the 

constitutional right to a trial by jury); see also Dickson v. Rucho, ___ N.C. ___, ___, 

___ S.E.2d ___, ___ (2015) (recognizing restriction of state legislative power by federal 

law). 

In addition to federal limitations on state legislative power, the state 

constitution provides express restrictions safeguarding against an abuse of legislative 

power. See, e.g., N.C. Const. art. II, § 23 (prescribing the procedure for the passing of 

revenue bills); id. art. II, § 24 (limiting certain local, private, or special acts); id. art. 

III, § 5(11) (limiting “reconvened sessions” to considering certain bills); id. art. IV, § 1 

(limiting authority to establish certain courts or to deprive courts of jurisdiction “that 

rightfully pertains to [the courts] as a co-ordinate department of the government”); 

id. art. V, §§ 1, 2(1)-(7) (limiting taxing authority); id. art. V, § 3(1)-(2), 4 (limiting 

authority regarding debt); id. art. VI, § 9 (preventing the appointment of an official 

already serving in one branch to serve simultaneously in another branch).10 

 

10 Every one of our state constitutions has placed express limitations or prohibitions 

on legislative power. See, e.g., N.C. Const. of 1868, art. I; id., art II, §§ 13, 14 (prohibiting 

the passing of certain private laws and providing a procedure by which to pass permissible 

private laws); id., art. II, § 16 (prescribing the procedure for passing laws regarding state 

debt or credit); N.C. Const. of 1776, Declaration of Rights, § III (prohibiting “exclusive or 

separate emoluments or privileges,” except for “in consideration of public services”); id., 

Declaration of Rights, § XII (prohibiting seizure of person and “freehold liberties or 

privileges” and deprivation of “life, liberty, or property, but by the law of the land”); id., 

Declaration of Rights, § XIV (prohibiting the suspension of trial by jury); id., Declaration of 

Rights, § XXII (prohibiting “hereditary emoluments, privileges or honors”).
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-31-

Moreover, the General Assembly is checked and balanced by its structure and 

its accountability to the people. See N.C. Const. art. I, § 2. Legislative power is 

divided between two chambers,11 with its combined one hundred seventy members. 

Id. art. II, §§ 2, 4 (providing for 50 senators and 120 representatives). The members 

of each chamber serve different constituencies with various needs and priorities. Id.

art. II, §§ 3, 5. The General Assembly’s power is diffused by its sheer magnitude, its 

diversity within each chamber, and, consequently, the need to find compromise. See 

1 James Bryce, The American Commonwealth 480 (3d ed. 1901) (“The Americans

restrain their legislatures by dividing them . . . .”). History has shown that the 

legislative branch is not a continuously cohesive force; disagreements between the 

two chambers are not infrequent.12 The diversity within the branch, however, 

ensures healthy review and significant debate of each proposed statute, the 

enactment of which frequently reaches final form through compromise. Likewise, 

 

11 Our constitution has even referred to the division of legislative power between the 

bicameral houses as “distinct branches” of government. N.C. Const. of 1868, art. II, § 1; 

N.C. Const. of 1776, § I.

12 Notably, the statutes in question here do not provide for appointments by the 

“General Assembly” but instead distribute legislative appointments between the Senate

and the House of Representatives. See Act of June 4, 2014, ch. 4, § 4(a), 2014 N.C. Sess. 

Laws 57, 61 (providing that the Oil and Gas Commission consists of nine members: three 

selected by the House, three by the Senate, and three by the Governor); id. § 5(a), 2014 N.C. 

Sess. Laws at 64-65 (providing that the Mining Commission consists of eight members: two 

selected by the House, two by the Senate, two by the Governor, along with the State 

Geologist and the chair of the North Carolina State University Minerals Research 

Laboratory Advisory Committee); Act of Sept. 20, 2014, ch. 122, § 3(a), 2014 N.C. Sess. 

Laws 828, 832 (providing that the Coal Ash Management Commission consists of nine 

members: three selected by the House, three by the Senate, and three by the Governor).
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-32-

members of the legislative branch face the most frequent elections, serving only twoyear terms,13 N.C. Const. art. II, §§ 2, 4, and are thereby most directly accountable to 

the people. Lawmakers represent the particular interests of their different 

constituents, who are limited in number. Id. art. II, §§ 3, 5. In addition to these 

structural safeguards, the final check on the legislative power of the General 

Assembly is judicial review, the implied constitutional authority of the court to decide 

if a law violates the constitution. See Bayard, 1 N.C. (Mart.) at 6-7; see generally 

Hoke, 15 N.C. (4 Dev.) at 28 (observing that the constitution “guards against abuse” 

of legislative power through “frequent elections,” protection of individual rights, 

division of powers, and judicial review).

This broad constitutional power to make laws includes the indisputable 

authority of the General Assembly to create executive statutory offices. Along with 

the power to create the office, the legislature has the power to assign the selection 

authority either to itself or another. See, e.g., State ex rel. Martin v. Melott, 320 N.C. 

518, 520, 524, 528, 359 S.E.2d 783, 785, 787, 789 (1987) (plurality) (stating, with one 

dissenting judge agreeing, that the General Assembly had the constitutional power 

to appoint the position itself); State ex rel. Cherry v. Burns, 124 N.C. 761, 765, 33 S.E. 

136, 137 (1899) (concluding that the constitution “leads us to the opinion that the 

Legislature may fill this [statutory] office” (citations omitted)); Cunningham v. 

 

13 The terms for legislators were lengthened from one to two years by amendment in 

1835. N.C. Const. of 1776, art. I, § 1 (1835). 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-33-

Sprinkle, 124 N.C. 638, 641, 33 S.E. 138, 139 (1899) (“[B]eing of legislative creation,” 

appointments of members of the Board of Agriculture “are equally within the power 

of legislative appointment.”); State Prison v. Day, 124 N.C. 362, 367, 32 S.E. 748, 749 

(1899) (concluding that the constitution intended “to confer upon the General 

Assembly the power to fill offices created by statute”), abrogated on other grounds by 

State ex rel. Salisbury v. Croom, 167 N.C. 223, 228, 83 S.E. 354, 356 (1914); Jones, 

116 N.C. at 574, 21 S.E. at 788 (“Here, the Legislature had the constitutional power 

to create the office and fill it . . . .”).

The only express constitutional limitation on statutory appointments forbids 

any member of one branch from serving simultaneously in another branch of 

government; however, that prohibition does not speak to who has the authority to 

appoint. N.C. Const. art. VI, § 9; N.C. Const. of 1868, art. XIV, § 7 (1873); N.C. Const. 

of 1776, art. IV, § 4 (1835); N.C. Const. of 1776, §§ XXVI-XXX; see also State ex rel. 

Wallace v. Bone, 304 N.C. 591, 608-09, 286 S.E.2d 79, 88-89 (1982) (concluding that, 

if an appointing authority appoints an official from one branch to an official role in 

another branch, that official unconstitutionally exercises the power of two branches). 

There is no constitutional limitation on the General Assembly’s designating itself as 

the appointing authority of positions it creates by statute.

The people have retained for themselves alone the only constitutional method 

of changing the powers of each of the branches: the constitutional amendment. As 

discussed below, for only an eight-year period, the people limited the General 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-34-

Assembly’s power to designate the appointing authority for statutory offices. 

Thereafter, the people expressly removed any such limitation. Most recently, the 

people modified the legislative power by passing a constitutional amendment 

granting the Governor the power to veto certain legislation. See Act of March 8, 1995, 

ch. 5, §§ 3, 4, 1995 N.C. Sess. Laws 6, 8 (establishing referendum to amend the 

constitution to provide gubernatorial veto to take effect 1 January 1997). A 

gubernatorial veto requires a three-fifths vote in each chamber to override. N.C. 

Const. art II, § 22. Thus, legislative power remains broad, limited only by express 

constitutional provision. 

Unlike the unified executive present in the federal model, the state 

constitution has never had a unified executive; rather, executive power is dispersed 

among several specified constitutional executive officers, with the Governor being 

chief among them. N.C. Const. art. III, §§ 1, 7; N.C. Const. of 1868, art. III, § 1; N.C. 

Const. of 1776, §§ XIV, XIX. The 1776 constitution, like every constitution thereafter, 

placed the general executive power in the Governor. N.C. Const. art. III, § 1; N.C. 

Const. of 1868, art. III, § 1, 4; N.C. Const. of 1776, § XIX. This constitution vested 

the Governor with the power to “exercise all the other executive powers of 

government, limited and restrained as by this Constitution [as] mentioned, and 

according to the laws of the State.” N.C. Const. of 1776, § XIX; see also Executive 

Power, Black’s Law Dictionary (10th ed. 2014) (“The power to see that the laws are 

duly executed and enforced. . . . [G]overnors’ executive powers are provided for in 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-35-

state constitutions.”). This original constitution, like each constitution thereafter, 

also provided specific gubernatorial duties. E.g., N.C. Const. art. III, § 5 (outlining 

the “Duties of Governor”); N.C. Const. of 1868, art. III, § 6 (“to grant reprieves 

commutations and pardons”); id., art. III, § 9 (“to convene the General Assembly in 

extra session”); N.C. Const. of 1776, § XIX (including the “power to draw for and apply 

such sums of money as shall be voted by the general assembly” and to exercise 

clemency, “the power of granting pardons and reprieves”).

The 1776 constitution, like those that followed, divided the executive 

responsibilities between the Governor and others, including a Council of State, even 

though the Governor was expressly given the general executive authority and 

responsibility. N.C. Const. of 1776, § XIX. This model of diffused executive power, 

with the Governor exercising the general executive power, was unchanged in the 1868 

state constitution. Compare id. § XIX (“[Governor] may exercise all . . . executive 

powers of government . . . .”), with N.C. Const. of 1868, art. III, § 1 (“[Governor] shall 

be vested [with] the Supreme executive power . . . .”). Stylistically improved, the 1868 

constitution implemented separate articles for each branch, including the first 

constitutional establishment of the judicial branch. See N.C. Const. of 1868, 

arts. II-IV. The use of separate articles provided for more detailed descriptions of the

workings of each branch. John V. Orth & Paul Martin Newby, The North Carolina 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-36-

State Constitution 19-20 (2d ed. 2013) [hereinafter State Constitution].

14 As in the 

past, to enable the Governor to fulfill his supervisory role, the 1868 constitution 

authorized the Governor to gather information from the other executive branch 

officers and report to the General Assembly. N.C. Const. of 1868, art. III, § 7. In 

summarizing this supervisory role, this provision states: “[The Governor] shall take 

care that the laws be faithfully executed.” Id. This phrase did not expand the 

Governor’s powers but stated more explicitly this general supervisory aspect of the 

Governor’s executive responsibilities in a multimember executive branch. 

In other words, the constitution charged the Governor with supervising the 

executive branch and its functions while, at the same time, granting certain executive 

powers to other executive officers. E.g., id., art. III, § 1 (listing Governor as one of 

eight elected offices in the executive branch); id., art. III, § 7 (“The officers of the 

Executive Department . . . shall . . . severally report to the Governor, who shall 

transmit such reports, with his message, to the General Assembly . . . .”); id., art. III, 

§ 9 (authorizing the Governor to “convene the General Assembly in extra session” “by 

 

14 Professor John V. Orth is a legal historian and state constitutional scholar 

acknowledged and cited by both this Court and the United States Supreme Court. 

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 108, 120, 116 S. Ct. 1114, 1149, 1155, 134 L. 

Ed. 2d 252, 299, 306 (1996) (Souter, Ginsburg & Breyer, JJ., dissenting); Welch v. Tex. Dep’t 

of Highways & Pub. Transp., 483 U.S. 468, 499, 510 n.16, 520 n.20, 107 S. Ct. 2941, 2959, 

2965 n.16, 2970 n.20, 97 L. Ed. 2d 389, 413, 420 n.16, 426 n.20 (1987) (Brennan, Marshall, 

Blackmun & Stevens, JJ., dissenting); Hoke Cty. Bd. of Educ. v. State, 358 N.C. 605, 648, 

599 S.E.2d 365, 397 (2004) (quoting and citing John V. Orth, The North Carolina State 

Constitution: A Reference Guide (1993)); Stephenson v. Bartlett, 355 N.C. 354, 367, 562 

S.E.2d 377, 387 (2002) (referring to Orth as “a highly respected state constitutional 

scholar”).
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-37-

and with the advice of the Council of State”); id., art. III, § 13 (“The respective duties 

of the [constitutional executive officers] shall be prescribed by law.”); id., art. III, § 14 

(“The Secretary of State, Auditor, Treasurer, Superintendent of Public Works, and 

Superintendent of Public Instruction, shall constitute ex officio, the Council of State, 

who shall advise the Governor in the execution of his office . . . .”). The constitution 

allowed the General Assembly to assign executive duties and functions by statute. 

Id., art. III, § 13. Thus, while the Governor had general supervisory responsibility, 

id., art. III, §§ 1, 7, each constitutional executive officer was primarily responsible for 

executing the laws assigned to that official by the General Assembly, id., art. III, § 13.

The executive branch is fundamentally unchanged under the current 

constitution. The Governor continues to share the exercise of executive powers with 

the other constitutional executive officers who are separately elected members of the 

Council of State, N.C. Const. art. III, §§ 7(1)-(2), 8, while maintaining his supervisory 

role, id. art. III, §§ 1, 5(4), notwithstanding possible conflict among these officials, see

N.C.G.S. § 147-17 (2013) (allowing the Governor to employ independent counsel). The 

constitution continues to require the General Assembly to assign by statute executive 

duties and functions to the constitutional executive officers and the administrative 

departments. N.C. Const. art. III, § 5(10) (“The General Assembly shall prescribe the 

functions, powers, and duties of the administrative departments and agencies of the 

State and may alter them from time to time . . . .”); id. art. III, § 7(2) (“[R]espective 

duties [of the Council of State] shall be prescribed by law.”); id. art. III, § 11 (“[A]ll 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-38-

administrative departments, agencies, and offices of the State and their respective 

functions, powers, and duties shall be allocated by law . . . .”).

In addition to prescribing duties to the executive officers, our current 

constitution expressly recognizes the General Assembly’s power to organize and 

reorganize the executive branch. Id. art. III, § 5(10) (“The General Assembly shall 

prescribe the functions, powers, and duties of the administrative departments and

agencies of the State and may alter them from time to time . . . .”); see id. art. III, § 11 

(“Regulatory, quasi-judicial, and temporary agencies may, but need not, be allocated 

within a principal department.”). Thus, the executive power remains diffused and 

unchanged. Compare N.C. Const. of 1868, art. III, with N.C. Const. art. III. When 

the people have desired to expand executive authority, they have done so through 

express constitutional change. Such change occurred in the 1868 constitution, though 

it proved to be short-lived. 

The Constitution of 1868, through a controversial provision, expressly limited 

the General Assembly’s constitutional authority to assign the selection of statutory 

officers, expressly granting the appointment authority to the Governor, subject to 

consent of the Senate: 

The Governor shall nominate, and by and with the advice 

and consent of a majority of the Senators elect, appoint, all 

officers whose offices are established by this Constitution, 

or which shall be created by law, and whose appointments 

are not otherwise provided for, and no such officer shall be 

appointed or elected by the General Assembly.
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-39-

N.C. Const. of 1868, art. III, § 10. Notably, a specific constitutional provision was 

required to limit the General Assembly’s lawmaking power and to prevent it from 

designating an appointing authority other than the Governor. 

Eight years later, the people specifically repealed this limitation on the 

General Assembly’s legislative power by constitutional amendment in 1876. The 

amendment “restore[d] in considerable measure the former power of the General 

Assembly.” Thad Eure, Sec’y of State, North Carolina Government 1585-1974 at 798 

(John L. Cheney, Jr. ed., 1975). Thereafter, the explicit constitutional power to 

designate the appointing authority, including the authority to designate itself, again 

resided in the General Assembly. See N.C. Const. of 1868, art. III, § 10 (1876); Day, 

124 N.C. at 367, 32 S.E. at 749 (“[I]t is clear that the [Constitutional] Convention of 

1875 intended to alter the Constitution . . . to confer upon the General Assembly the 

power to fill offices created by statute.” (citation omitted)); Jones, 116 N.C. at 572-73, 

21 S.E. at 788 (“[T]he [Constitutional] Convention refused to incorporate the words 

‘and no such officer shall be appointed or elected by the General Assembly.’ ” (citing 

Convention Journal of 1875, at 175-76)); see, e.g., Burns, 124 N.C. at 765, 33 S.E. at 

137 (“[T]he Legislature may fill [the] office [of keeper of the capitol].”); Cunningham, 

124 N.C. at 641, 33 S.E. at 139 (“[M]embers of the Board of Agriculture . . . being of 

legislative creation, . . . are equally within the power of legislative appointment.”).15 

 

15 See State Constitution 25 (“[T]he General Assembly now reclaimed the power to 

provide for legislative appointments to executive offices created by statute.”). In 1911 two 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-40-

Since this fundamental return to the historical status quo, the constitutional 

authority to provide the method of filling statutory offices resides squarely with the 

General Assembly; the relevant provisions of our constitution regarding legislative 

power have remained unchanged. N.C. Const. art. II, § 1; see id. art. III, §§ 5(8), (10), 

11. In 1968 the North Carolina State Constitution Study Commission acknowledged 

this broad legislative power. The Study Commission was tasked with drafting and 

proposing amendments to our current constitution. See N.C. State Constitution 

Study Comm’n, Report of the North Carolina State Constitution Study Commission iii (1968) [hereinafter Report]. The Study Commission reviewed our constitution and 

transmitted a special report to the Governor and General Assembly, which would 

serve “as the primary source of guidance for the 1969 legislative session” and adoption 

of our current constitution. N.C. State Bar v. DuMont, 304 N.C. 627, 635, 286 S.E.2d 

89, 94 (1982). As we noted, 

a comparison . . . reveals that our Legislature relied almost 

exclusively on the Report. Hence, a close study of the 

 

of the foremost legal scholars in North Carolina, Henry G. Conner, a former Supreme Court 

Justice, then serving as a federal district court judge, and Joseph B. Cheshire, Jr., an 

attorney in Raleigh, North Carolina, published an annotation of the state constitution. 

Henry G. Connor & Joseph B. Cheshire, Jr., The Constitution of the State of North Carolina 

Annotated i (1911). They stated that “the amendment to this section by the Convention of 

1875 altered the Constitution as construed [previously] . . . and conferred upon the General 

Assembly the power to fill offices created by statute.” Id. at 140. This Court has quoted 

and cited this valuable work on our state constitution throughout the past century. See, 

e.g., Coley v. State, 360 N.C. 493, 497, 631 S.E.2d 121, 125 (2006); State v. Furmage, 250 

N.C. 616, 618, 109 S.E.2d 563, 564-65 (1959); Penny v. Salmon, 217 N.C. 276, 279, 7 S.E.2d 

559, 561 (1940); Moose v. Bd. of Comm’rs, 172 N.C. 419, 441-42, 90 S.E. 441, 452 (1916) 

(Brown, J., concurring).
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-41-

Report allows us “to place [ourselves] as nearly as possible 

in the position of the men who framed the instrument” and 

allows us to “look to the history [and] general spirit of the 

times” . . . . 

Id. at 635, 286 S.E.2d at 94 (brackets in original) (quoting Perry v. Stancil, 237 N.C. 

442, 444, 75 S.E.2d 512, 514 (1953) (“The court should place itself as nearly as 

possible in the position of the men who framed the instrument.”)).

In its report the Study Commission explained:

The General Assembly will not be deprived of any of its 

present authority over the structure and organization of 

state government. It retains the power to make changes 

on its own initiative, it can disapprove any change initiated 

by the Governor, and it can alter any reorganization plan 

which it has allowed to take effect and then finds to be 

working unsatisfactorily. 

Report at 131-32; see also N.C. Const. art. III, §§ 5(10), 11. Moreover, the Study 

Commission recommended limiting legislative appointment authority by 

constitutional amendment. Its proposed amendment would have vested sole 

authority in the Governor to “appoint and [ ] remove the heads of all administrative 

departments and agencies.” Report at 113. This proposed constitutional amendment, 

modestly limiting some legislative appointment authority, was not adopted, thus 

perserving for the General Assembly its historically broad appointment authority. 

See N.C. Const. art. III, § 7. 

Thus, aside from a short-lived express limitation, the constitutional authority 

to designate the appointing authority for statutory positions has resided and 

continues to reside squarely in the General Assembly under its general legislative 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-42-

power to make laws. Therefore, not only does the General Assembly have the 

undisputed constitutional power to create positions in the other branches, it may also 

designate to itself the authority to fill the positions.

Since 1776 our state constitutions have contained a separation of powers 

provision stating “[t]hat the legislative, executive, and supreme judicial powers of 

government, ought[

16] to be forever separate and distinct from each other.” N.C. 

Const. of 1776, Declaration of Rights, § IV; see N.C. Const. art. I, § 6; N.C. Const. of 

1868, art. I, § 8. Notably, the plain language of the provision states that “powers” are 

to be “separate and distinct.” A violation of separation of powers occurs when one 

branch of government exercises the power reserved for another branch of 

government.

17 

 

16 Even though the word “ought” in both the 1776 and 1868 constitutions was 

changed to “shall” in the 1971 constitution, the Study Commission noted there was no 

substantive change to the separation of powers clause. Report at 73-75; see also Smith v. 

Campbell, 10 N.C (3 Hawks) 590, 591, 598 (1825) (providing that “ought” is synonymous 

with “shall,” noting that “the word ought, in this and other sections of the [1776 

constitution], should be understood imperatively”).

17 This Court has consistently recognized this application of the separation of powers 

principle. See, e.g., State v. Whitehead, 365 N.C. 444, 448-49, 448 n.1, 722 S.E.2d 492, 496 

& n.2 (2012) (providing that the judiciary cannot exercise executive power under N.C. 

Const. art. III, § 5(6) to invalidate sentence for nonlegal error); Bacon, 353 N.C. at 717-18, 

722, 549 S.E.2d at 854-55, 857 (recognizing that the judiciary cannot impose additional 

constraints on the executive’s “exclusive prerogative” to grant clemency under N.C. Const. 

art. III, § 5(6)); Hogan v. Cone Mills Corp., 315 N.C. 127, 138-40, 142-43, 337 S.E.2d 477, 

483-44, 486 (1985) (holding the legislature cannot exercise judicial power extended to the 

Industrial Commission under the Worker’s Compensation Act by retroactively altering a 

judgment rendered by that agency); State v. Elam, 302 N.C. 157, 160, 273 S.E.2d 661, 664 

(1981) (holding the General Assembly cannot exercise constitutional power granted to the 

judiciary under N.C. Const. art. IV, § 13(2) in making rules of appellate practice and 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-43-

The first case in which this Court18 addressed separation of powers, decided 

less than fifty years after the adoption of the original constitution, arose in a land 

title dispute. In Robinson v. Barfield the General Assembly passed a private act 

attempting to cure a flaw in a deed. 6 N.C. (2 Mur.) 391, 418-19 (1818). The Court 

said that the General Assembly violated separation of powers by exercising power 

reserved for the judiciary. Id. at 419. The Court noted that in passing the act, the 

legislature was attempting to determine “the effects in law of the several deeds. By 

the Constitution they are restricted from this exercise of power; they are to make the 

law, and the judicial power is to expound and determine what cases are within its 

operation.” Id.

Similarly, in a more recent case, Bacon v. Lee, a convicted criminal asked this 

Court to intrude into the Governor’s clemency review—an explicit constitutional

power vested in the Governor since 1776. 353 N.C. at 704, 549 S.E.2d at 846-47. The 

 

procedure); Person v. Bd. of State Tax Comm’rs, 184 N.C. 499, 513-14, 115 S.E. 336, 345 

(1922) (holding the judiciary cannot invalidate a statute found not in conflict with the 

exercise of the legislature’s constitutional taxation power under N.C. Const. of 1868, art. V, 

§ 3); Houston v. Bogle, 32 N.C. (10 Ired.) 496, 503-04 (1849) (holding the legislature cannot 

exercise judicial power to retroactively determine “what the law is and what it was”); Hoke, 

15 N.C. (4 Dev.) at 13-15 (holding the General Assembly violates separation of powers by 

exercising judicial power when it passes a law which attempts to settle a dispute between 

competing claimant to a public office); Robinson v. Barfield, 6 N.C. (2 Mur.) 391, 418-19 

(1818) (holding that the legislature cannot exercise judicial power by deciding whether a 

deed “was executed according to . . . [the] law”); see also Ivarsson v. Office of Indigent Def. 

Servs., 156 N.C. App. 628, 631, 577 S.E.2d 650, 652 (“A violation of the separation of powers 

required by the North Carolina Constitution occurs when one branch of state government 

exercises powers that are reserved for another branch of state government.”), disc. rev. 

denied, 357 N.C. 250, 582 S.E.2d 269 (2003). 

18 See footnote 2.
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-44-

criminal defendant sought substantive review from this Court because the thenserving Governor had represented the State during Bacon’s appeal. Id. at 701-02, 

711, 549 S.E.2d at 844-45, 851. This Court concluded that clemency was an explicit 

constitutional power of the Governor to be exercised solely at the Governor’s 

discretion. Id. at 704, 549 S.E.2d at 846-47. As such, clemency was a nonjusticiable, 

political question. Id. at 716-17, 549 S.E.2d at 854. In explaining nonjusticiability, 

the Court noted that any substantive review by the Court would interfere with the 

Governor’s express constitutional authority. Id. at 716-17, 549 S.E.2d at 854. When 

one branch interferes with another branch’s performance of its constitutional duties, 

it attempts to exercise a power reserved for the other branch. Id. at 721-22, 549 

S.E.2d at 857. Therefore, if the Court conducted a substantive review of the clemency 

proceeding, the judicial branch would be exercising a power constitutionally reserved 

for the Governor, thus violating separation of powers. Id. at 721-22, 549 S.E.2d at 

857.

As discussed, the General Assembly has the constitutional power to assign

itself the authority to fill statutory positions; this designation does not violate 

separation of powers. From our founding, the authority to appoint has simply been 

a mode of filling the position and has not in any way implicated control over the 

official or an exercise of any official duties. Cunningham, 124 N.C. at 642-43, 33 S.E. 

at 139 (holding that legislative appointment is “only a mode of filling the offices” and 

that “[t]his view . . . was strictly in accordance with the constitutional history of this 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-45-

State”); Jones, 116 N.C. at 580, 21 S.E. at 790 (Avery, J., concurring) (“[B]efore any

such express power was given or limited to the Chief Executive, when by the 

Constitution as amended in 1835 no express grant of authority to appoint or elect was 

conferred upon either of the coördinate departments, the residuary power of the 

people to provide for filling offices, already existing, and to create others, was 

exercised by their representatives in the General Assembly.”); Trs. of Univ. of N.C. v. 

McIver, 72 N.C. 76, 85 (1875) (“Now the election of officers is not an executive, 

legislative or judicial power, but only a mode of filling the offices created by law, 

whether they belong to one department or the other. The election of a judge is not a 

judicial power, nor the election of a Governor an executive power; for if so, all elections 

by the people would be an infringement upon the executive department.”). 

If the appointing of the official is simply a mode of filling the position and does 

not implicate control, then the appointment does not in any manner amount to 

exercising the duties of the office. Thus, whether appointing an official or a majority 

of a group of officials, the appointing authority is not exercising any responsibilities 

of the position. This principle has existed since our independence from Great Britain

and has been reiterated throughout our history. 

In 1776 the Drafters of the Declaration of Rights in our state constitution 

provided for separation of powers, N.C. Const. of 1776, Declaration of Rights, § IV; 

the next day, those same Drafters specified legislative appointment of the entire 

executive and judicial branches, N.C. Const. of 1776, §§ XIII-XVI, XXII-XXIV. In
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-46-

appointing the Governor, the then-seven-member Council of State, an Attorney 

General, Secretary of State, and Treasurer, id., the General Assembly did not exercise 

the power of those offices. The authority to appoint all the officials of the other 

branches did not violate separation of powers because a separation of powers violation 

only occurs when one branch of government exercises the power belonging to another 

branch. Once appointed, the Governor and other executive branch officials each took 

an oath to perform the duties of the office and served a designated term. N.C. Const. 

of 1776, §§ XII, XV, XVI. Similarly, the legislature did not exercise the judicial power 

by creating a judicial system and appointing and removing judges. Id. § XIII. The 

judges took an oath to perform their duties and did so, despite the possibility of 

removal. Id. §§ XII, XIII. 

Our original judges aptly demonstrated that a selected officer exercises

independent judgment after appointment, even in the face of the legislature’s removal 

authority. In Bayard v. Singleton the three judges had been appointed by the General 

Assembly and were subject to removal by that body. See id. § XIII. Nonetheless, the 

judges held an act of the General Assembly unconstitutional. 1 N.C. (Mart.) at 7. 

The Court observed

that the obligation of their oaths and the duty of their office 

required them, in that situation, to give their opinion on 

that important and momentous subject; and that 

notwithstanding the great reluctance they might feel 

against involving themselves in a dispute with the 

Legislature of the State, yet no object of concern or respect 

could come in competition or authorize them to dispense 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-47-

with the duty they owed the public, in consequence of the 

trust they were invested with under the solemnity of their 

oaths.

Id. at 6-7. As demonstrated by the behavior of the judges and their decision in Bayard 

v. Singleton, appointment was simply a means of filling the position, not controlling 

the official and thereby exercising the power of the office.19 

Our current constitution and a variety of statutes continue to recognize that 

the authority to appoint an official does not result in control of the appointee; having 

and exercising such authority does not implicate separation of powers. The 

constitution and statutes place with one or more officials in one branch the authority 

to appoint officials in another branch.20 Moreover, various statutory schemes allow 

 

19 The commissioners appointed under the statutes at issue here likewise must take 

oaths before taking on the responsibilities of their positions. See N.C.G.S. § 11-1 (2013) 

(“[O]aths . . . are necessary . . . to the important end of good government . . . [and] ought to 

be taken and administered with the utmost solemnity.”); id. § 11-7 (2013) (“[E]very person 

elected or appointed to hold any office . . . shall . . . take and subscribe to the following oath: 

‘I . . . do solemnly and sincerely swear that I will . . . be faithful and bear true allegiance to 

the State of North Carolina, and to the constitutional powers and authorities which are or 

may be established for the government thereof; and that I will endeavor to support, 

maintain and defend the Constitution of said State . . . .’ ”); see also id. § 143B-13(a) (2013) 

(“[E]ach member [is appointed] on the basis of interest in public affairs, good judgment, 

knowledge, and ability in the field for which appointed, and with a view to providing 

diversity of interest and points of view in the membership.”).

20 See N.C.G.S. §§ 7A-752, -753 (Chief Justice makes appointments to the Office of 

Administrative Hearings, housed in the executive branch); Melott, 320 N.C. at 526, 359 

S.E.2d at 788 (Meyer, J., concurring in result) (recognizing that the Office of Administrative 

Hearings exercises judicial functions, yet is housed in the executive branch); see, e.g., N.C. 

Const. art IV, § 19 (Governor fills judicial vacancies); N.C.G.S. § 163-9(a) (2013) (same); see 

also N.C. Const. art. III, §§ 3(4), (5) (General Assembly determines Governor’s mental 

capacity and has power to impeach); id. art. III, § 7(6) (General Assembly determines 

incapacity of executive officers); N.C.G.S. § 106-2 (2013) (Governor appoints Agriculture 

Board, housed under elected Council of State member); id. §§ 162-5, -5.1 (2013) (vacancy in 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-48-

for the branches to share appointments21 and even authorize the political parties to 

recommend certain appointees.22 This historically recognized principle, that 

appointment is simply a means of filling the position, is true regardless of the function 

ultimately exercised by the official.23 Thus, for example, when the Governor appoints 

a judge, the Governor is not controlling the judge or exercising a judicial power; 

separation of powers is not implicated. N.C. Const. art. IV, § 19. 

The principle of separation of powers is certainly not implicated by the General 

Assembly’s appointment of a majority of the members of various executive 

commissions, particularly in light of the General Assembly’s significant express 

constitutional authority to assign executive duties to the constitutional executive 

 

the office of sheriff, exercising the executive function of enforcing the laws, filled by board of 

county commissioners, a legislative body).

21 See, e.g., N.C.G.S. § 7A-375 (2013) (Judicial Standards Commission) (providing for 

thirteen members severally appointed by the Chief Justice, State Bar Council, Governor, 

and General Assembly to serve six-year terms, and for cause and disqualification removal); 

id. § 115D-2.1 (2013) (State Board of Community Colleges) (providing for twenty-one 

members appointed by the Governor and General Assembly, various limited terms, and 

removal by vote and recommendation from the Ethics Commission); id. § 138A-7 (2013) 

(State Ethics Commission) (providing for eight members, four each appointed by the 

General Assembly and Governor to serve staggered terms, and removal for cause).

22 See, e.g., N.C.G.S. § 162-5.1 (2013) (In forty six counties, the board “shall elect the 

person recommended by” the prior sheriff’s political party to fill a vacancy in the office of 

sheriff.); id. § 163-19 (2013) (State Board of Elections) (providing for five members, 

requiring the Governor to appoint members from a list of nominees submitted by the two 

largest political parties, and limiting members to two consecutive four-year terms).

23 See, e.g., N.C.G.S. § 62-10(f) (2013) (Utilities Commission) (independent 

commission performing judicial functions but residing in executive branch; members 

appointed by Governor subject to legislative confirmation); id. § 97-77(a1) (2013) (Industrial 

Commission) (independent commission performing judicial functions but residing in 

executive branch; members appointed by Governor but must be confirmed by the General 

Assembly).
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-49-

officers and organize executive departments. The executive branch executes the laws 

as enacted by the General Assembly. The constitution expressly acknowledges the 

General Assembly’s power to assign duties and functions to the executive branch 

under its broad lawmaking power. N.C. Const. art. III, §§ 5(10), 7(1)-(2), 8, 11. The 

executive branch officials and their departments carry out these statutory duties and 

functions. Id. art. III, §§ 5(10), 7(1)-(2). The General Assembly retains the 

prerogative to change these duties, the organization of the executive branch, and the 

branch’s supervisory structure. Id. art. III, §§ 5(10), 7(1)-(2), 11. Though the General 

Assembly may have assigned a particular function to a constitutional executive 

officer at present, the constitution provides that the legislature can assign that 

function elsewhere. Id.

To overturn a law of the people acting through the General Assembly, the 

Court must find an express constitutional violation beyond a reasonable doubt. As 

demonstrated by the text and history of our constitution and by our jurisprudence, 

the General Assembly in exercising its express constitutional lawmaking power has

the authority to appoint a majority of the members of executive commissions that it 

has created by statute. The authority to appoint is simply a mode of filling positions 

and does not result in control over the appointed officials. Absent an explicit 

constitutional amendment such as that proposed in 1968, the General Assembly’s 

constitutional power, including its appointment authority, remains unchanged. 

While I agree with the majority that the statutes in question do not violate the 
STATE EX REL. MCCRORY V. BERGER

NEWBY, J., concurring part and dissenting in part

-50-

appointments clause, id. art. III, § 5(8), I do not believe that the challenged provisions 

violate separation of powers. Accordingly, I concur in part and dissent in part.