Old North News

A political analyst with the John Locke Foundation said in an op-ed piece on March 24 that North Carolina Gov. Roy Cooper did what amounts to an end-run power grab in his handling of a business shutdown to deal with the COVID-19 epidemic.

"Disagreement stemmed from the governor’s unilateral decision to shut down bars and restaurants statewide,” Mitch Kokai wrote in an opinion piece for The Robesonian. “It’s worth pointing out that emergencies often test the boundaries of government power.”

The Locke Foundation is a conservative think-tank nonprofit based in North Carolina.

Kokai said the governor has access to emergency powers including evacuation orders, economic controls, and regulation of car and pedestrian traffic flow. But he added that each requires “the concurrence of the Council of State.”

“To take any of these unusual steps, the governor must get concurrence from the Council of State,” Kokai wrote. “That’s the collected group of North Carolina’s nine other statewide elected executive branch officers. None of them works for the governor. The lieutenant governor, attorney general, state treasurer, and other council members must appeal to voters across North Carolina every four years to keep their jobs.”

Kokai wrote that Cooper’s March 17 order closing restaurants and bars as a safeguard against the spread of the COVID-19 virus should raise red flags. He said Cooper’s staff submitted his proposed order to Council of State members via email around 12:45 p.m. that day. The governor asked for a response within 30 minutes; then announced the plan during a 2 p.m. news conference. The order went into effect at 5 p.m.

"Cooper advanced his proposal despite a majority of the council voting against the plan,” Kokai wrote. “Regardless of the merits of Cooper’s shutdown, his decision to act without meaningful consultation and advice from the Council of State ought to concern any supporter of limited constitutional government.”

Kokai alleged Cooper has a history of shifting power in his favor.

“When the General Assembly tried to remake the State Board of Elections, granting the two major parties an equal number of board seats, Cooper sued,” he wrote. “Among his arguments, his party’s one-seat majority would give him effective control over the board. That was an interesting stance to take. Prior to Cooper, the elections board traditionally had been viewed as operating outside direct influence from elected officials.”

Cooper won a court fight in that case, Kokai noted.

In another instance, he said Cooper unsuccessfully argued in a lawsuit that lawmakers had no right to confirm his cabinet appointments.

“A unanimous North Carolina Supreme Court affirmed a unanimous Appeals Court ruling against the governor,” Kokai wrote.

He added that bipartisan rulings against Cooper at the trial-court level and in the state's Court of Appeals have not stopped the governor from continuing attempts to gain control over state spending decisions that involve federal funding.

“Fights over budgets and government appointments differ from a dispute about a public health crisis,” Kokai wrote. “But both types of disagreement could affect the long-term stability of North Carolina’s constitutional structure. As state government takes steps to protect the foundation of our society’s health, it shouldn’t damage its own foundation in the process.”