North Carolina Governor’s Assault on Separation of Powers

A n impending decision from the North Carolina Supreme Court could threaten a core tenet of the state’s constitution: the separation of powers.

At issue is whether a judge can order state executive-branch officials to open the treasury and transfer $785 million to state agencies without the consent of the elected North Carolina General Assembly. The decision could open the door to billions of dollars of additional court-ordered spending in future years. The state constitution clearly directs that only the legislature can appropriate state money.

The 4–3 Democratic-majority N.C. Supreme Court heard arguments on August 31. A decision on the case is coming any day. If the court sides with the plaintiffs, the justices will establish that they believe the courts can bypass the North Carolina General Assembly and spend taxpayer money.

Such a decision could challenge the constitution’s budgetary safeguards and influence future relations between the state government’s legislative, executive, and judicial branches.

The story started in 1994. Five mostly rural North Carolina county-school systems and families of students attending schools in those systems filed suit against the state of North Carolina and the State Board of Education. The plaintiffs argued that the local schools were not receiving enough money from state taxpayers to meet North Carolina’s constitutional education obligations. The case came to be known as Leandro after Kathleen Leandro and her son Robert, the first plaintiffs named in the original complaint.

In 1997, the state Supreme Court ruled that state government’s constitutional education obligation did not mean that the plaintiff school systems were entitled to significant funding increases. But it did not end there. Over the next 20 years, a trial court held hearings to determine how well the state met its obligation to provide the “opportunity for a sound education.”

When Democratic governor Roy Cooper took office in 2017, Leandro gained steam. Cooper and Attorney General Josh Stein, another Democrat, started coordinating with the plaintiffs to request orders from trial judge David Lee. Among them was an order appointing a California-based education-consultancy firm called WestEd to develop a remedial education plan. The consultants gave the court a plan that called for $5.6 billion in new state education spending, along with recommending additional studies and reports that could generate even more expenses in the years to come.

Beyond questioning the authority that the executive branch used to secure WestEd’s plan and force it on the state, opponents also question the wisdom of a consulting firm from San Francisco — one that promotes social lessons more than academic ones — designing education priorities for the Tar Heel State.

On November 10, 2021, Lee ordered executive-branch officials to transfer $1.75 billion to two state agencies and North Carolina’s public-university system to implement two years of recommendations from the comprehensive remedial plan. The order bypassed the constitutional requirement that the state legislature appropriate state funds. Plaintiffs argue that if the legislature does not meet its constitutional obligation to provide the opportunity for an education, then the courts are obligated to do something about it.

State lawmakers hired their own lawyers to fight the order, saying that they are in fact funding education with the most recent budget by allotting $11.2 billion for K–12 public education — an increase of $352 million over last year’s budget and the twelfth consecutive year-to-year increase since 2011.

They also claim that the order violates the separation of powers and uses a decades-old case on education in a few counties to justify measures that would apply to every school system in the state. Lawmakers argue that the eight-year, 146-item WestEd plan no longer addresses the specific needs of students after schools were shut down for more than a year during Covid.

The acting state controller, appointed by Cooper, is following his predecessor and siding with lawmakers in opposing the forced money transfer. He says Lee’s order puts him in a legal bind. He would violate state law and his oath of office if he transferred money without authorization from the legislature.

The next round of decisions from the state Supreme Court is due November 4, but because Leandro is such a high-profile case, it could come out alone at an earlier date. The court’s justices have faced intense scrutiny this year. The court’s four Democrats stand accused of partisan stances, particularly after the court overturned the Republican legislature’s new congressional-district maps. The court supported trial judges’ decision to order “special masters” to redraw a congressional map for 2022.

Two seats on the state’s high court are on the ballot this November. If Republicans flip one of them, the court’s partisan majority flips. Before the election, though, the four Democrats on the court have agreed to hear a lawsuit opposing the state’s voter-ID law on October 3. The next day, the court will take another look at the redistricting dispute. Its decision in that case could impact election cycles in 2024 and beyond.

One of the key themes in the Leandro debate is trust. Opponents of the court-endorsed education-spending plan do not trust the court to consider the constitution’s separation of powers. They don’t trust Democrats to design a plan focused on academics with parental input. Proponents of Leandro don’t trust the Republican-led legislature to fund education to the degree they believe is needed.

In addition to the two Supreme Court seats, all seats in the state’s General Assembly are on the ballot this November. Republicans are trying to win back supermajorities that would enable them to override Cooper’s vetoes. Should the high court’s decision on Leandro come within days of the election, it is likely to impact the outcome, given North Carolina’s tightly divided electorate.