Last month, dramatic legislative maneuvering over redistricting in North Carolina in response to a court order once again brought scrutiny to the state’s lawmakers. But the partisan rancor over redistricting and power is hardly a new phenomenon.
After Democratic Governor Roy Cooper was elected in North Carolina in 2016, the lame-duck Republican-controlled legislature and lame-duck Republican Governor Pat McCrory worked to pass a number of reforms which limited the power of the North Carolina governor’s office. As Vox reported, the legislature imposed a legislative approval requirement on gubernatorial appointments and cut the number of appointed positions the governor could fill to less than a third of its prior size – from 1,500 to roughly 400.
This change isn’t just a political move – it’s unconstitutional. It has disproportionately affected the most vulnerable in North Carolina and creates a dangerous precedent for other states.
The elimination of positions can, of course, hamstring a branch’s ability to get work done. As former Chief Justice William Rehnquist highlighted when he described “an alarming number of judicial vacancies” in 2001, separation of powers concerns result when one branch intentionally deprives another branch of the opportunity to fill positions. A number of scholars across the political spectrum, including celebrated scholar Arthur Rizer, agree with this diagnosis.
Further, the Supreme Court has made clear that the legislature may not entrench its power. In cases as early as 1853, the Court emphatically declared, “no one Legislature can, by its own act, disarm their successors of any of the powers or rights of sovereignty confided by the people to the legislative body.” Ohio Life Insurance and Trust Company v. Debolt, 57 U.S. (16 How.) 416, 387. 100 U.S. 548 (1879). In another case, the Court stated even more explicitly, “Every succeeding Legislature possesses the same jurisdiction and power… as its predecessors. The latter must have the same power of repeal and modification which the former had of enactment, neither more nor less. . . . A different result is fraught with evil.” Newton v. Commissioners, 100 U.S. 548 (1879). The Court echoed the sentiment more than fifty years later, noting that “the will of a particular Congress . . . does not impose itself upon those to follow in succeeding years.” Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). While the cases the Court considered involved the legislature’s ability to bind itself in the future, the principle is the same when applied to the executive – and the concern is intuitive: a departing executive should not have the same authority to bind a future executive. Thus, when considering cases that substantially alter the power of an office, courts must scrutinize the decision more strongly when it is made by a departing member of the office.
While typically, separation of powers principles between the legislature and the executive rest in part on each branch having a concerted interest in keeping its own power, in lame-duck sessions, unfortunately, this breaks down. Executives who are forced out of office have no incentive in lame-duck sessions to protect their office’s power, and the incentives to bow to partisan incentives are too high. As Federalist 51 stated,
“[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”
Thus, the most practical reading of separation of powers principles is that no major legislation which alters the powers between branches should be allowed to be enacted in lame-duck sessions.
Legislative entrenchment, of course, contravenes checks and balances. Scholars and activists concerned with constitutional rights, thus, may be concerned with separation of powers violations because the judiciary often can protect constitutional rights better than the more majoritarian-focused legislatures. Thus, when there are majoritarian power grabs, political minorities – and, more generally, those without political power who lack equal access to the system – are more likely to be hurt. To make matters worse, as this separation of powers violation occurred in a lame-duck session, those attempting the majoritarian power grab were no longer in the majority at all – they merely attempted to keep power within their party despite losing an election.
The results of the North Carolina effort were disastrous. As Vox has reported, the reasoning for these changes “all goes back to gerrymandering.” The goal behind the change was to dilute the governor’s power in a redistricting period. The prior Congressional map had been struck down as an unconstitutional racial gerrymander by the Supreme Court in Cooper v. Harris, 137 S. Ct. 1455 (2017). The new maps were, similarly, drawn with malicious intent, but the Republican legislature explicitly claimed their intent was merely partisan, and not racial. Thus, the power grab helped entrench an unchecked political minority in a legislative body. While the maps were ultimately struck down by a state court in Common Cause v. Lewis, the Governor’s limited staff were forced to spend much of their time on a multitude of lawsuits, and due to the increase in power, the legislature was able to propose various additional state constitutional changes, including voter ID provisions.
Now that the dust has settled in North Carolina, it is clear that separation of powers principles were not respected. As other state legislatures have followed suit, with similar measures passed in Michigan and Wisconsin after the 2018 elections, courts must recognize the inherent incentive problems that lame-duck measures on separation of powers present. This will not only limit the ability of advocates to hold legislators accountable but also practically allows for gerrymandering to continue. And, as US Rep. Gwen Moore of Wisconsin made clear, “[t]he [b]urdens of [g]errymandering [a]re [b]ourne by [c]ommunities of [c]olor.” Power grabs are not a mere partisan issue, but a fundamental justice issue, as well.