There is no expiry date for the separation of powers in government.
If a power belongs to the executive, the executive has no obligation to use it or lose it. The same applies to the powers attributed to the legislative and judicial powers.
When one branch chooses to use its legitimate powers in a way that other branches dislike, those competing branches cannot step in and take powers away.
That’s why a common argument in the ongoing Leandro School funding lawsuit in North Carolina should fall flat.
Lawyers representing both the plaintiffs in the case and the State Board of Education seem to think the time is up for the power of the NC General Assembly scholarship.
Critics complain that the legislature has yet to comply with the dictates of a 2004 NC Supreme Court decision in Leandro. They support a November 2021 trial judge’s decision to bypass the General Assembly. Judge David Lee ordered state officials to ignore the legislature and transfer money from the state treasury to pay for parts of a court-sanctioned Leandro plan.
“The trial court — acting with remarkable judicial restraint — granted the state near absolute discretion for nearly two decades to develop its Chosen Leandro Remedies plan,” attorney Melanie Black Dubis wrote in a statement. July 1 brief to the state Supreme Court. “The trial court went to extraordinary lengths to afford the political branches of government time, deference, and an opportunity to use their informed judgment as to the ‘cogs and bolts’ of the remedy.”
“In the 18 years since, a whole new generation of North Carolina schoolchildren, particularly those at risk and socioeconomically disadvantaged, have been denied a basic constitutional right,” Dubis added. .
NC Senior Deputy Attorney General Amar Majmundar also insists on the passage of time in the Leandro case. “After two decades of deference to the legislative and executive branches to develop a remedy for a continuing violation of the state’s constitutional obligation to provide all students with a sound basic education, the trial court has ruled Was he correct in ordering relevant state actors to take steps to ensure compliance with our state’s constitution, including ordering them to use available state funds in this effort?” Majmundar asked the Supreme Court of ‘State in his own memoir of July 1st.
Both Dubis and Majmundar imply that the alleged inaction of political branches takes on special significance after a certain period of time. “Two decades of deference,” they suggest, empowers a judge to take on a legislative role.
Recently retired state comptroller Linda Combs did not buy that argument. Directly targeted by Lee’s money transfer order, Combs sought relief in the North Carolina Court of Appeals. She argued that she would violate her constitutional oath — and commit a reprehensible offense — if she moved money from state coffers without legislative authority.
The Court of Appeal accepted. “Put simply, the finding of the trial court that it can order [Combs] paying unrestricted funds from the public purse is constitutionally impermissible and beyond the power of the trial court,” Justices Chris Dillon and Jefferson Griffin wrote.
Appeals judges have warned that Lee’s order could open the door to further court-mandated state government spending. “[T]The trial court’s reasoning would result in a slew of pending constitutional appropriations, enforceable by court order, that would destroy the clear separation of powers between the legislature and the judiciary and threaten to destroy the carefully crafted checks and balances that are the genius of our system of government,” Dillon and Griffin wrote.
These two judges are not alone. To date, the state Supreme Court has shown no interest in trampling on the legislature’s spending power.
“The Appropriations Clause of the North Carolina State Constitution provides that”[n]o the money shall be drawn from the state treasury but accordingly from statutory appropriations,” Judge Sam “Jimmy” Ervin IV wrote in December 2020 by a 6-1 majority. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the Appropriations Clause dating back to when the original state constitution was ratified in 1776.
“In crafting the Appropriations Clause, the drafters sought to ensure that the people, through their elected representatives in the General Assembly, have full and exclusive control over the allocation of state expenditures,” said added Ervin.
“Accordingly, the Appropriations Clause ‘declares in plain terms that no one can misunderstand that the legislature is supreme over the public purse’.”
This supremacy has no time limit. It does not expire after 18 years – or 100 years, for that matter. The separation of powers remains constant.
It is hoped that Ervin and the rest of the state Supreme Court will remember this fact when they consider Leandro again in the coming months.
Mitch Kokai is senior policy analyst for the John Locke Foundation.