Exile on Jones Street: Hitting reset and then what?

by Kirk Ross

Save for two pending recounts in a Supreme Court race and a Wake County state senate seat, the shakeout from the 2014 elections is pretty much over.

And as so many do during this election postpartum phase, there is a huge temptation to chase the squirrel and plunge right into speculating about the upcoming, and likely wild, election ahead in 2016.

But there’s a lot to consider other than parsing every word from first-, second- and third-tier presidential candidates and musing over the challenges of Richard Burr or the governor’s race. Before you get all worked up about #2016readyornot please remember that there are another crucial 365 days cued up in advance.

Behold 2015, a year of marvels to come.

The noise and dust kicked up from the race at the top of the ticket obscured some of the stories that will shape the year ahead.

Topping the list in likely importance is that while there was so much attention being paid to the voter, a serious fracture opened up between the governor and the legislature. Last week, after dropping several hints earlier in the month that he had serious constitutional concerns, the governor’s office announced a lawsuit challenging the legality of a handful of legislature-appointed boards and commissions that oversee executive branch functions. He was joined in this fight by former governors Jim Hunt and Jim Martin and for good reason. This particular constitutional fight goes back decades, to 1982 in fact. That’s when state the Supreme Court stopped a legislative attempt to add four members of the General Assembly to the state’s Environmental Management Commission, the commission that oversees the drafting of environmental rules and other environment-related executive branch functions.

The court ruled then that trying to pack the commission thusly violated the separation-of-powers requirements of state constitution.

Since then, just how far the legislature can go in running things has been somewhat murky and with the change in leadership at the beginning of this decade, there came further testing of the limits. In 2013, there were major changes written into law on the composition of several state boards coupled with the subsequent firing of current members and reappointments by the new legislature and governor.

While Gov. McCrory reaped the reward of being able to make dozens of new appointments ahead of the usual rotation, the legislature continued in ways that were more challenging to executive branch power, asserting its control through oversight boards controlled by legislative appointment.

Last year, McCrory showed that his patience was wearing thin. During legislative hearings on coal-ash legislation, he sent his top counsel to fire a warning shot about the proposed coal-ash management commission. Two-thirds of the commission’s nine members are legislative appointees and it was granted a good deal of independence as well.

McCrory telegraphed the pending lawsuit when he cited the new commission as a key reason he decided to let the coal-ash bill become law without his signature. He is also suing over an oil and gas commission set up last year as part of fracking legislation.

In announcing the suit, McCrory said the constitution is clear that one branch is supposed to make the laws and one assigned to carry them out. At the same time he tried to downplay that his sometimes frosty relations with the legislature were escalating into something more serious.

“The disagreement among the two branches is not acrimonious, but it is of fundamental importance,” said Governor McCrory. “I have too much respect for North Carolina’s constitution to allow the growing encroachment of the legislative branch into the responsibilities the people of North Carolina have vested in the executive branch.”

McCrory’s suit joins a similar challenge launched the week before by the State Board of Education against the Rules Review Commission, which is entirely appointed by the legislature and whose constitutionality has been questioned before.

McCrory took heat for the lawsuit from conservatives already miffed over his failure to sign on to a fight to the finish over gay marriage, a reminder that there is more than one legal disagreement between the governor and the legislature swirling around. And on top of the court battles, there’s a hole in the budget and another fight over Medicaid looming.

With the honorables preparing to elect a new speaker of the House this weekend and committee hearings on possible 2015 legislation already taking place, please note that while the election didn’t yield a lot of change, there’s still a lot of uncertainty ahead.