As I have discussed, Governor Perdue issued an executive order creating a commission made up of special interests and political and partisan insiders to identify three potential judges, one of whom the Governor is required to nominate, when a judicial vacancy occurs.
Is this executive order constitutional? It isn’t a simple issue, but I believe it is unconstitutional.
The Governor’s power to fill judicial vacancies is an express executive power granted to the Governor under the North Carolina Constitution (Article IV, Section 19).
The Governor can’t delegate away express power, and this point, which I believe to be noncontroversial, is supported by case law (see e.g. Bacon v. Lee). In the Bacon case, which dealt with clemency power, the North Carolina Supreme Court discussed whether this exclusive executive power can be delegated away.
Citing the Public Papers of Governor Sanford, “To decide when and where such mercy should be extended is a decision which must be made by the Executive. ? It cannot be delegated even in part to anyone else, and thus the decision is a lonely one.”
The only question is not whether executive power can be delegated away, but whether executive power was improperly delegated away through this executive order.
There really are two arguments, in my view, that can be made as to whether this executive order is constitutional. First, since the executive order can be rescinded by the Governor at any time, the Governor is not bound by it and therefore the executive order is constitutional. Secondly, the commission doesn’t make the actual final decision as to who the Governor nominates, but only recommends three options.
These arguments, or something similar, were made by the Massachusetts Supreme Court in a 1975 advisory opinion it wrote regarding a comparable executive order.
1) Executive Order Argument
An executive order isn’t an internal memo or an informal document. It has the force of law (see e.g. Article 3, Section 5 addressing executive orders regarding executive administration) and is binding on the Governor and binding on future governors. While the executive order can be revoked by Governor Perdue, she is acting pursuant to its terms so long as the executive order is in effect.
If an executive order stated the Governor may only nominate Catholic judges, would that be constitutional simply because the executive order can be revoked? Going less extreme and closer to the judicial vacancy issue, what if the executive order stated that the Governor was required to nominate the candidate selected by the North Carolina Bar Association? Would that be constitutional because the Governor could revoke the executive order?
I think it is pretty clear that the answer is no. It may be true that these executive orders are unconstitutional on substantive grounds, but that’s a different argument as to whether they are constitutional simply because the executive order can be revoked.
Further, agency rules can be repealed at any time. Legislation also can be repealed at any time as well. Are regulations and legislation, which otherwise would be deemed unconstitutional, considered constitutional because they can be repealed? The answer is no.
2) Required to Pick From Three Nominees
The executive order requires that the Governor select a nominee from one of three candidates. If the Commission could only provide recommendations that the Governor could ignore, there wouldn’t be a legal issue.
Instead, the executive order gives unelected and unaccountable private parties (not even someone in government) the power to narrow down the judges she can select. The express power is severely diluted because she can’t nominate anyone other than one of the three individuals chosen.
In many ways, the private parties have more power than the Governor because at least they know that one of three candidates they like will be nominated whereas the Governor could be stuck with three candidates she doesn’t approve of.
The private parties aren’t influencing the process but are in effect running it. The fact that the final “decision” regarding candidates is the Governor’s doesn’t negate the fact that she is delegating away a major part of her judicial appointment power, which constitutes the process of deciding who will be appointed.
Getting Beyond the Legal Vacancy Realm
For some reason, I think the judicial vacancy scenario doesn’t seem as bad, so let’s identify two comparable situations where I think most people would agree the executive order is clearly unconstitutional.
1) The Governor issues an executive order saying she is going to let special interest groups pick three bills, one of which she must veto.
2) The Governor issues an executive order saying she’s going to let special interest groups identify three prisoners, one of whom she must pardon.
In either case, is there any doubt that she couldn’t do this? There’s no difference when it comes to judicial vacancies. It is an express power that she is giving away in the same manner.
If Governor Perdue decided to create some informal behind-the-scene process that gave the same special interest groups influence over her appointment decisions, there probably would not be a legal issue. Once though she created an executive order that gave away her executive power, there is an issue.