Governor Roy Cooper and Mandy Cohen

Forest v. Cooper officially filed

Lt. Gov. Dan Forest has filed his lawsuit against Gov. Roy Cooper. The Republican Forest and the Democrat Cooper face each other in the 2020 gubernatorial election.

This action is about the rule of law. That the chief executive must follow the law is as old as the idea of the rule of law itself. The legal maxims rex legi subjectus est (the king is subject to the law) and lex non a rege est violanda (the law is not to be violated by the king) makes this principle absolutely clear. …

… The executive power of the governor is not unlimited and portions of the overall executive power may be vested in other executive officials as “prescribed by law.” …

… The North Carolina Emergency Management Act provides .. that the most expansive statewide powers of the Governor can only be exercised during a declared state of emergency “with the concurrence of the Council of State.” …

… [T]he Emergency Management Act is an exercise of the General Assembly’s authority to “prescribe by law” the powers and duties of the members of the Council of State, including the Lieutenant Governor, as the Emergency Management Act places the duty on the Council of State to consider carefully the exercise of the most expansive of the Governor’s emergency actions, and places the power to check the exercise of those powers with the Council of State by requiring concurrence in those actions. …

… Despite failing to receive the concurrence of the Council of State, defendant still issued Executive Order No. 118 [closing restaurants statewide] … exercising the very authority that was prohibited by the Council of State’s vote. …

… [The Emergency Management Act] provides that defendant has certain powers if local control is insufficient to manage the emergency, however, the language of the Shutdown Orders themselves and ordinary principles of statutory construction demonstrate that [the Act] does not grant defendant the power he purports to exercise in the Shutdown Orders.

Forest’s complaint also contends that neither Cooper nor his state health director has taken proper legal action to extend quarantine orders beyond 30 days.

The suit seeks a temporary restraining order blocking enforcement of Cooper’s shutdown orders, along with a permanent injunction against enforcement of the orders until Cooper gets concurrence from the Council of State.

Six of the 10 members of the elected Council of State are Republicans.

Mitch Kokai / Senior Political Analyst

Mitch Kokai is senior political analyst for the John Locke Foundation. He joined JLF in December 2005 as director of communications. That followed more than four years as chie...

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