Stein v. Berger

• Court: Court of Appeals of North Carolina
• Decided: October 15, 2025
• Docket: 24-440
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-440

Filed 15 October 2025

Wake County, No. 23CV028505-910

JOSHUA H. STEIN, in his official capacity as GOVERNOR OF THE STATE OF NORTH CAROLINA, Plaintiff,

v.

PHILIP E. BERGER, in his official capacity as PRESIDENT PRO TEMPORE OF THE NORTH CAROLINA SENATE; DESTIN C. HALL, in his official capacity as SPEAKER OF THE NORTH CAROLINA HOUSE OF REPRESENTATIVES; THE STATE OF NORTH CAROLINA; NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION; and JOHN (JD) SOLOMON, in his official capacity as CHAIR of the North Carolina Environmental Management Commission; CHRISTOPHER M. DUGGAN, in his official capacity as VICE-CHAIR of the North Carolina Environmental Management Commission; and YVONNE C. BAILEY, TIMOTHY M. BAUMGARTNER, CHARLES S. CARTER, MARION DEERHAKE, MICHAEL S. ELLISON, STEVEN P. KEEN, H. KIM LYERLY, JACQUELINE M. GIBSON, JOSEPH REARDON, ROBIN SMITH, KEVIN L. TWEEDY, ELIZABETH J. WEESE, and BILL YARBOROUGH, in their official capacities as COMMISSIONERS of the North Carolina Environmental Management Commission, Defendants.

Cross appeals by Plaintiff and Defendants from order entered 28 February

2024 by Judges John W. Dunlow, Dawn M. Layton, and Paul A. Holcombe III in Wake

County Superior Court. Heard in the Court of Appeals 17 February 2025.

Attorney General Jeff Jackson, by Deputy Solicitors General James W. Doggett and Daniel P. Mosteller, Special Deputy Attorney General Stephanie A. Brennan, and Senior Deputy Attorney General Amar Majmundar, for the State.

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jim W. Phillips, Jr., Daniel F. E. Smith, Eric M. David, and Amanda S. Hawkins, for Plaintiff Joshua H. Stein, Governor of the State of North Carolina. STEIN V. BERGER

Opinion of the Court

Womble Bond Dickinson (US) LLP, by Matthew F. Tilley, Russ Ferguson, Sean E. Andrussier, Michael A. Ingersoll, and Emmett Whelan, for Philp E. Berger, in his official capacity as President Pro Tempore of the North Carolina Senate, and Destin C. Hall, in his official capacity as Speaker of the North Carolina House of Representatives.

Southern Environmental Law Center, by Blakely E. Hildebrand, Brooks Rainey Pearson, and Kimberly Hunter, for Cape Fear River Watch and Haw River Assembly, amicus curiae.

Poyner Spruill LLP, by Andrew H. Erteschik, Edwin M. Speas, Jr., Caroline P. Mackie, and N. Cosmo Zinkow, for Former Governors James G. Martin, James B. Hunt, Jr., Michael F. Easley, Beverly E. Perdue, and Patrick L. McCrory, amicus curiae.

Dowling PLLC, by Troy D. Shelton and Craig D. Schauer, and North Carolina Home Builders Association, by J. Michael Carpenter, for the North Carolina Home Builders Association, amicus curiae.

North Carolina Institute for Constitutional Law, by Jeanette K. Doran, for the North Carolina Institute for Constitutional Law and the John Locke Foundation, amicus curiae.

CARPENTER, Judge.

Joshua H. Stein, in his official capacity as Governor of the State of North

Carolina; Philip E. Berger, in his official capacity as President Pro Tempore of the

North Carolina Senate, and Destin C. Hall, in his official capacity as Speaker of the

North Carolina House of Representatives (collectively, “Legislative Defendants”); and

the State appeal from the 28 February 2024 order entered by a three-judge panel in

Wake County Superior Court (the “Order”). The Order granted in part and denied in

part the motions for summary judgment filed by Plaintiff and Legislative Defendants,

addressing the constitutionality of two legislative enactments that restructured

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seven state boards and commissions. On appeal, the Governor and State argue the

panel erred by denying in part the Governor’s motion for summary judgment, while

Legislative Defendants argue the panel erred by denying in part their motion for

summary judgment. After careful review, we affirm in part and reverse in part.

I. Factual & Procedural Background

In 2023, the North Carolina General Assembly enacted Senate Bill 512 (“SB

512”) and House Bill 488 (“HB 488”). S.L. 2023-136, -108. Together, SB 512 and HB

488 restructured the membership and composition of seven state boards and

commissions, including the: Board of Transportation (“BOT”), Economic Investment

Committee (“EIC”), Commission for Public Health (“CPH”), Environmental

Management Commission (“EMC”), Coastal Resources Commission (“CRC”), Wildlife

Resources Commission (“WRC”), and Building Code Council (“BCC”). S.L. 2023-136,

-108.

On 10 October 2023, the Governor brought suit challenging the enactment of

SB 512 and HB 488 by filing: a motion for temporary restraining order, a motion for

preliminary injunction, and a request to transfer the case to a three-judge superior

court panel following the resolution of the motion for temporary restraining order.

The Governor argued the General Assembly’s restructuring of the seven boards and

commissions violated the separation of powers clause of Article I, Section 6 of the

North Carolina Constitution. The State supported the Governor’s motion for

preliminary injunction. On 11 October 2023, the superior court granted Legislative

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Defendants’ motion to transfer the case to a three-judge panel.1 On 1 November 2023,

the panel conducted a hearing on the Governor’s motion for preliminary injunction

and partially granted the Governor’s motion as to the BOT, EIC, and CPH. The panel,

however, denied the Governor’s motion as to the EMC and CRC. In addition, the

panel dismissed without prejudice the Governor’s motion concerning the WRC and

BCC.

On 8 December 2023, the Governor and Legislative Defendants filed motions

for summary judgment, which the panel heard on 16 February 2024. On 28 February

2024, the panel entered the Order, partially granting the Governor’s motion as to the

BOT and EIC after concluding their restructuring violated separation of powers. The

panel partially granted Legislative Defendants’ motion as to the remaining five

boards and commissions, after concluding their restructuring did not violate

separation of powers. In sum, the panel enjoined the restructuring of the BOT and

EIC, and allowed the restructuring of the CPH, EMC, CRC, WRC, and BCC. The

Governor, Legislative Defendants, and State all timely appealed to this Court.

II. Jurisdiction

This Court has jurisdiction under N.C. Gen. Stat. § 7A-27(b)(1) (2023).

III. Issues

1 Facial challenges “to the validity of an act of the General Assembly” shall be appointed “to a three-

judge panel of the Superior Court of Wake County to hear the challenge.” N.C. Gen. Stat. § 1-267.1 (2023).

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The issues are whether the panel erred by: (1) enjoining the restructuring of

the BOT and EIC; and (2) allowing the restructuring of the CPH, EMC, CRC, WRC,

and BCC.

IV. Analysis

The Governor and State argue the panel erred by denying in part the

Governor’s motion for summary judgment, thereby allowing the restructuring of the

CPH, EMC, CRC, WRC, and BCC. Legislative Defendants argue the panel erred by

denying in part their motion for summary judgment, thereby enjoining the

restructuring of the BOT and EIC. In essence, the Governor and State contend the

restructuring of the seven boards and commissions violates the separation of powers

clause of Article I, Section 6 of the North Carolina Constitution, whereas Legislative

Defendants disagree.

This Court reviews an order granting or denying a motion for summary

judgment de novo. Cummings v. Carroll, 379 N.C. 347, 358, 866 S.E.2d 675, 684

(2021). In conducting a de novo review, this Court “‘considers the matter anew and

freely substitutes its own judgment’ for that of the lower tribunal.” Craig ex rel. Craig

v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009)

(quoting In re Greens of Pine Glen Ltd. P’Ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319

(2003)).

We also review constitutional arguments de novo. Town of Highlands v.

Hendricks, 164 N.C. App. 474, 478, 596 S.E.2d 440, 444 (2004). Under de novo review,

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“we presume that laws enacted by the General Assembly are constitutional, and we

will not declare a law invalid unless we determine that it is unconstitutional beyond

a reasonable doubt.” State ex rel. McCrory v. Berger, 368 N.C. 633, 639, 781 S.E.2d

248, 252 (2016); State ex rel. Martin v. Preston, 325 N.C. 438, 448, 385 S.E.2d 473,

478 (1989) (“[G]reat deference will be paid to acts of the legislature—the agent of the

people for enacting laws.”). “‘The presumption of constitutionality is not, however,

and should not be, conclusive,’ with an act of the General Assembly being subject to

invalidation if it offends a specific constitutional provision beyond a reasonable

doubt.” Cooper v. Berger, 376 N.C. 22, 33, 852 S.E.2d 46, 56 (2020) (quoting Moore v.

Knightdale Bd. of Elections, 331 N.C. 1, 4, 413 S.E.2d 541, 543 (1992)).

Separation of powers is one of the “ ‘fundamental principles on which state

government is constructed . . . .’ ” Cooper v. Berger (Cooper I), 370 N.C. 392, 407, 809

S.E.2d 98, 107 (2018) (quoting John V. Orth & Paul Martin Newby, The North

Carolina State Constitution 50 (2d ed. 2013)). The separation of powers clause of the

North Carolina Constitution mandates that the “legislative, executive, and supreme

judicial powers of the State government shall be forever separate and distinct from

each other.” N.C. Const. art. I, § 6. “[I]n other words, each branch is directed to

perform its assigned duties and avoid encroaching on the duties of another branch.”

Harper v. Hall, 384 N.C. 292, 297, 886 S.E.2d 393, 399 (2023).

The North Carolina Constitution also provides that the “Governor shall take

care that the laws be faithfully executed.” N.C. Const. art. III, § 5(4). But “the

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Governor is not alone in this task.” Cooper v. Berger (Cooper Confirmation), 371 N.C.

799, 800, 822 S.E.2d 286, 290 (2018). In addition to the Governor, nine elected officers

“assist the executive branch in fulfilling its purpose,” including the: Lieutenant

Governor, Secretary of State, Auditor, Treasurer, Superintendent of Public

Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor,

and Commissioner of Insurance. Id. at 800, 822 S.E.2d at 290; see N.C. Const. art.

III, §§ 2, 7. Together, the Governor and the nine executive officers comprise the

Council of State. Cooper Confirmation, 371 N.C. at 800, 822 S.E.2d at 290; see N.C.

Const. art. III, § 8. As a result, “the Governor’s duty to ‘take care that the laws be

faithfully executed’ . . . is a nonexclusive duty conferred upon all ten Council of State

members.” Stein v. Berger, 387 N.C. 575, 578 n.4, 915 S.E.2d 146, 148 n.4 (2025)

(quoting N.C. Const. art. III, § 5(4)).

When a branch is accused of violating separation of powers by encroaching

upon the executive branch’s authority, we consider whether the accused branch’s

actions “ ‘unreasonably disrupt a core power of the executive.’ ” McCrory, 368 N.C.

at 645, 781 S.E.2d at 256 (quoting Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840,

854 (2001)). Such action generally occurs when the accused branch “‘retains some

control’ over the executive branch’s functions.” See id. at 645, 781 S.E.2d at 256

(quoting Wallace v. Bone, 304 N.C. 591, 608, 286 S.E.2d 79, 88 (1982)). There is,

however, no “categorical rule that would resolve every separation of powers

challenge” because “each statutory scheme” varies. Id. at 646, 781 S.E.2d at 257.

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Consequently, “we must resolve each challenge by carefully examining its specific

factual and legal context.” Id. at 646–47, 781 S.E.2d at 257. Separation of powers

violations, therefore, can be “more nuanced” and occur “when the actions of one

branch prevent another branch from performing its constitutional duties.” Id. at 645,

781 S.E.2d at 256.

In McCrory, the General Assembly enacted a statute authorizing itself to

appoint the majority membership of three state commissions. Id. at 646, 781 S.E.2d

at 256. The commissions were “housed in the executive branch” and responsible for

executing state laws by promulgating rules, making determinations consistent with

legislation, and issuing permits. Id. at 636–37, 781 S.E.2d at 250–51. Because the

commissions were executive and administrative in nature, the Governor needed

“enough control over them” in order to “ ‘take care that the laws be faithfully

executed.’ ” Id. at 645–46, 781 S.E.2d at 256 (quoting N.C. Const. art. III, § 5(4)). In

evaluating the Governor’s control over the commissions, the Court considered his

ability to “appoint the commissioners, to supervise their day-to-day activities, and to

remove them from office.” Id. at 646, 781 S.E.2d at 256.

But through the challenged statute in McCrory, the General Assembly

restricted the Governor’s ability to appoint, supervise, and remove members of the

executive commissions. Id. at 646, 781 S.E.2d at 256–57. Indeed, the General

Assembly gave itself the authority to appoint the majority of each commission’s

members, and each commission required a majority quorum for the transaction of

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business. Id. at 636–38, 781 S.E.2d at 250–51. Moreover, the Governor could only

remove members from the commissions for “misfeasance, malfeasance, or

nonfeasance.” Id. at 636–38, 781 S.E.2d at 250–51. The Court noted:

When the General Assembly appoints executive officers that the Governor has little power to remove, it can appoint them essentially without the Governor’s influence. That leaves the Governor with little control over the views and priorities of the officers that the General Assembly appoints. When those officers form a majority on a commission that has the final say on how to execute the laws, the General Assembly, not the Governor, can exert most of the control over the executive policy that is implemented in any area of the law that the commission regulates.

Id. at 647, 781 S.E.2d at 257. The General Assembly, therefore, violated separation

of powers. Id. at 647, 781 S.E.2d at 257.

Similarly, in Cooper I, the General Assembly enacted a statute restructuring

the State Board of Elections to an eight-member bi-partisan board, where the

Governor appointed four members each from two lists submitted by the Republican

and Democratic parties. 370 N.C. at 415–16, 809 S.E.2d at 112–13. In addition, the

Governor could only remove members for “misfeasance, malfeasance, or

nonfeasance.” Id. at 416, 809 S.E.2d at 112 (internal quotation marks and citation

omitted). In effect, the General Assembly restricted the Governor’s ability to appoint

a majority of the board’s members from his political party and remove members at

will. Id. at 416, 809 S.E.2d at 112–13. The Court explained:

The General Assembly cannot . . . structure an executive

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branch commission in such a manner that the Governor is unable, within a reasonable period of time, to “take care that the laws be faithfully executed” because he or she is required to appoint half of the commission members from a list of nominees consisting of individuals who are, in all likelihood, not supportive of, if not openly opposed to, his or her policy preferences while having limited supervisory control over the agency and circumscribed removal authority over commission members. An agency structured in that manner leaves the Governor with little control over the views and priorities of the [majority of] officers and prevents the Governor from having the final say on how to execute the laws.

Id. at 418, 809 S.E.2d at 114 (alteration in original) (quoting N.C. Const. art. III, §

5(4)). Accordingly, the General Assembly violated separation of powers. Id. at 418,

809 S.E.2d at 114.

Later that year in Cooper Confirmation, the General Assembly enacted a

statute granting the “North Carolina Senate the power to confirm the people that [the

Governor] nominates to serve in his Cabinet.” 371 N.C. at 800–01, 822 S.E.2d at 290.

Although the General Assembly constrained the Governor’s appointment authority

over his Cabinet members—as the Governor’s nominees required confirmation by the

Senate—the Governor still had “the power to nominate them,” “strong supervisory

authority over them,” and “the power to remove them at will.” Id. at 807, 822 S.E.2d

at 294. The Court further explained:

The Governor’s power to nominate is significant, and the ultimate appointee will be a person that he alone has chosen, subject only to an up-or-down vote by the Senate. The Governor’s supervisory and removal powers, moreover, ensure that the Governor retains ample post-

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appointment control over how his Cabinet members perform their duties.

Id. at 801, 822 S.E.2d at 290. Because the Governor “retain[ed] enough control over

the members of his Cabinet to take care that the laws be faithfully executed[,]” the

General Assembly did not violate separation of powers. Id. at 809, 822 S.E.2d at 295.

In an earlier case, Wallace, the General Assembly enacted a statute

authorizing its members to serve on the EMC. 304 N.C. at 607, 286 S.E.2d at 88.

The Court explained it is “crystal clear” that the EMC’s duties are “administrative or

executive in character.” See id. at 608, 286 S.E.2d at 88. The EMC’s duties include:

granting and revoking permits; issuing orders; conducting investigations and

hearings; supervising air pollution control programs; approving and rejecting

applications for dam construction; establishing industry standards; and adopting

rules, regulations, and classifications. See id. at 607–08, 286 S.E.2d at 88. Because

“the legislature cannot constitutionally create a special instrumentality of

government to implement specific legislation and then retain some control over the

process of implementation by appointing legislators to the governing body of the

instrumentality,” the General Assembly violated separation of powers by authorizing

its members to serve on the EMC. Id. at 608–09, 286 S.E.2d at 88–89.

As an initial matter, McCrory and Wallace demonstrate that a state board or

commission is administrative or executive in character when its duties function to

implement legislation. Id. at 607–09, 286 S.E.2d at 88–89; McCrory, 368 N.C. at 645–

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47, 781 S.E.2d at 256–57. Specifically, a state board or commission is administrative

or executive in character when it is authorized to create and promulgate rules and

regulations, make final decisions regarding grants and permits, supervise programs,

set standards, conduct investigations, and approve plans or applications. Wallace,

304 N.C. at 607, 286 S.E.2d at 88; McCrory, 368 N.C. at 636–37, 781 S.E.2d at 250–

Here, based on their responsibilities described in detail below, the seven state

boards and commissions likewise function to implement legislation. See N.C. Gen.

Stat. § 143B-350 (2023) (BOT); N.C. Gen. Stat. §§ 143B-437.52, -437.54, -437.56, -

437.57, -437.60 (2023) (EIC); N.C. Gen. Stat. §§ 130A-9, 130A-22, 130A-29 (2023)

(CPH); N.C. Gen. Stat. §§ 143B-282, 143B-282.1 (2023) (EMC); N.C. Gen. Stat. §§

113A-104, -106.1, -107, -107.1, -113, -118, -134.2 (2023) (CRC); N.C. Gen. Stat. §§

143B-281.1, 143-239 (2023) (WRC); N.C. Gen. Stat. § 143-136 (2023) (BCC). Because

they are primarily executive or administrative in character, we next consider whether

the General Assembly violated separation of powers by restructuring the executive

branch’s control over each board and commission.

A. BOT

The BOT oversees the Department of Transportation and “develop[s]

transportation policy and projects for the benefit of the citizens of the State.” N.C.

Gen. Stat. § 143B-350(a). Responsibilities of the BOT include, in pertinent part:

formulating “policies and priorities, accountability and performance metrics” for the

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Department of Transportation; approving highway construction, construction

projects, and partnership agreements; promulgating “rules, regulations, and

ordinances concerning all transportation functions assigned” to the Department of

Transportation; and reviewing and approving the Department of Transportation’s

financial decisions. Id. § 143B-350(f)-(g). Prior to SB 512, the Governor appointed,

and could also remove, fourteen of the BOT’s twenty members. S.L. 2023-136, §

4.1.(b). The General Assembly appointed, and could also remove, six members. Id.

The Governor appointed the chair. Id. § 4.1.(e). After SB 512, the Governor appoints

and removes six members, while the General Assembly appoints and removes

fourteen members. Id. § 4.1.(b). The BOT selects its own chair and a majority quorum

remains required “for the transaction of business.” Id. § 4.1.(e).

By restructuring the BOT in this manner, the General Assembly removed, and

gave to itself, the executive branch’s control over the BOT’s majority membership and

selection of the chair, as the BOT selects its own chair. Now, given the majority

quorum along with the General Assembly’s majority control, “the General Assembly,

not the Governor, can exert most of the control over the executive policy that is

implemented” by the BOT. See McCrory, 368 N.C. at 647, 781 S.E.2d at 257.

Consequently, the General Assembly disrupted a “ ‘core power of the executive[,]’ ”

see id. at 645, 781 S.E.2d at 256 (quoting Bacon, 353 N.C. at 717, 549 S.E.2d at 854),

by “‘retain[ing] some control’ over the executive branch’s functions[,]” see id. at 645,

781 S.E.2d at 256 (quoting Wallace, 304 N.C. at 608, 286 S.E.2d at 88). Accordingly,

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the General Assembly violated separation of powers. See id. at 647, 781 S.E.2d at

257. The panel, therefore, did not err by concluding that the BOT’s restructuring

violated separation of powers.

B. EIC

The EIC oversees the Department of Commerce’s Job Development Investment

Grant Program. N.C. Gen. Stat. § 143B-437.52(a). Responsibilities of the EIC

include: entering “into agreements with businesses to provide grants;” developing

“criteria to be used in” the selection of grant recipients; setting the amount of

incentives the Department of Commerce will pay recipients; and approving grants

paid by the Department of Commerce. Id. §§ 143B-437.52, -437.54, -437.56, -437.57,

-437.60. Prior to SB 512, the Governor appointed three of the EIC’s five members

and the General Assembly appointed two members. S.L. 2023-136, § 1.1.(a). The

General Assembly was not permitted to appoint its own members to serve as

members of the EIC. Id. After SB 512, the Governor appoints three members, the

General Assembly appoints two members, and the Speaker of the House and

President Pro Tempore of the Senate, or their designees, serve as two additional

members. Id. The EIC “may act only upon a decision of a majority of its members.”

Id.

By restructuring the EIC in this manner, the General Assembly removed the

Governor’s majority-appointment power and increased its own control by designating

additional membership spots to the Speaker and President Pro Tempore. In effect,

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the General Assembly gave itself “the power to appoint a majority of [the EIC’s] voting

members,” see McCrory, 368 N.C. at 646, 781 S.E.2d at 256, and ability to serve on

the EIC, see Wallace, 304 N.C. at 608, 286 S.E.2d at 88. As the General Assembly

granted itself membership on the EIC and restricted the Governor’s appointment

power, supervisory ability, and overall influence, it violated separation of powers. See

id. at 608, 286 S.E.2d at 88; McCrory, 368 N.C. at 646, 781 S.E.2d at 256. Accordingly,

the panel did not err by concluding that the EIC’s restructuring violated separation

of powers.

C. CPH

The CPH is “authorized to adopt rules necessary to implement the public

health programs administered by” the Department of Health and Human Resources;

create water, sanitary, and mosquito control districts; and establish “reasonable

standards governing the nature and scope of public health services rendered by local

health departments.” N.C. Gen. Stat. §§ 130A-9, -29(b)-(c). Prior to SB 512, the

Governor appointed, and could also remove, nine of the CPH’s thirteen members,

provided that six members work in specified professions. S.L. 2023-136, § 3.1.(a)-(b).

The North Carolina Medical Society appointed, and could also remove, the remaining

four members. Id. After SB 512, the Governor appoints and removes five members,

and all must work in specified professions. Id. The North Carolina Medical Society

and the General Assembly each appoint and remove four members. Id. A majority

quorum remains required “for the transaction of business.” Id. § 3.1.(d).

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Despite retaining greater appointment and removal power than the General

Assembly following the CPH’s restructuring, the Governor appoints and removes five

members while the General Assembly and North Carolina Medical Society appoint

and remove a combined eight members. Even though the North Carolina Medical

Society is a nongovernmental organization, its control, when combined with the

control the General Assembly removed from the Governor and vested in itself,

restricts the Governor’s majority-appointment power, supervisory ability, and

influence over the CPH. See McCrory, 368 N.C. at 645–47, 781 S.E.2d at 256–57.

While the General Assembly “clearly has the authority to establish qualifications for

commission membership, . . . mandate that differing policy preferences be reflected

in the commission’s membership[,]” and provide “the commission with a reasonable

degree of independence from short-term political influence[,]” the executive branch

must nonetheless be able to “ ‘take care that the laws be faithfully executed.’ ” Cooper

I, 370 N.C. at 417–18, 809 S.E.2d at 113–14 (quoting N.C. Const. art. III, § 5(4)).

Granted, separation of powers violations generally “occur when one branch

exercises power that the constitution vests exclusively in another branch.” See

McCrory, 368 N.C. at 645, 781 S.E.2d at 256. The General Assembly, however, does

not necessarily possess majority control over the CPH as to allow the General

Assembly to directly exercise the executive branch’s power to take care that the laws

be faithfully executed. Nevertheless, there is “no categorical rule” for separation of

powers violations, which can be more “nuanced” and occur “when the actions of one

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branch prevent another branch from performing its constitutional duties.” See id. at

646, 781 S.E.2d at 257. By giving itself control over four members previously

controlled by the Governor, where the North Carolina Medical Society already

controls four members, the General Assembly has effectively restricted the

Governor’s control to less than half of the CPH.

Consequently, the General Assembly has “prevent[ed] another branch from

performing its constitutional duties.” See id. at 645, 781 S.E.2d at 256. Indeed, when

a majority quorum is required “for the transaction of business” and the Governor only

controls five of thirteen members, the executive branch cannot take care that the laws

be faithfully executed as there is no guarantee that the members from the North

Carolina Medical Society will support the Governor’s policy preferences. See Cooper

I, 370 N.C. at 415–18, 809 S.E.2d at 112–14. Stated differently, given the Governor’s

“limited supervisory control” and “circumscribed” authority, the Governor is left “with

little control over the views and priorities” of the majority of the CPH’s members

which “prevents the Governor from having the final say on how to execute the laws”—

as the CPH can take action without approval from any of the Governor’s appointed

members. See id. at 418, 809 S.E.2d at 114. As a result, the General Assembly

violated separation of powers and the panel erred by concluding that the CPH’s

restructuring was constitutional. See id. at 416, 809 S.E.2d at 112.

D. EMC, CRC, and WRC

The EMC is housed within the Department of Environmental Quality. N.C.

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Gen. Stat. § 143B-282(a). The EMC’s responsibilities include promulgating rules for

the “protection, preservation, and enhancement of the water and air resources of the

State;” overseeing activities related to air and water pollution; and, if necessary,

overruling civil penalty assessments made by the Department of Environmental

Quality. Id. §§ 143B-282, -282.1. Prior to SB 512, the Governor appointed nine of

the EMC’s fifteen members, while the General Assembly appointed six members.

S.L. 2023-136, § 2.1.(a). The Governor selected the chair and could remove all

members. Id. § 2.1.(a)-(b). After SB 512, the Governor appoints seven members, the

General Assembly appoints six members, the Commissioner of Agriculture appoints

two members, the EMC selects its own chair, the Governor only removes the members

he appoints, and a majority quorum remains required. Id.

The CRC is housed within the Department of Environmental Quality. N.C.

Gen. Stat. §§ 113A-104(a). The CRC’s duties include: designating areas of

environmental concern in coastal regions and establishing and administering permit

rules in those areas; ruling on appeals contesting permit decisions; deciding whether

to allow erosion-control structures in state coastal waters; managing public access

points to state beaches; and administering the Public Beach and Coastal Waterfront

Access Program. Id. §§ 113A-104, -106.1, -107, -107.1, -113, -118, -134.2. Prior to SB

512, the Governor appointed nine of the CRC’s thirteen members, the General

Assembly appointed four members, and the Governor selected the chair. S.L. 2023-

136, § 5.1.(a). After SB 512, the Governor appoints six members, the General

- 18 - STEIN V. BERGER

Assembly appoints six members, the Commissioner of Insurance appoints one

member, the CRC selects its own chair, and a majority quorum remains required. Id.

The WRC is within the Department of Environmental Quality. N.C. Gen. Stat.

§ 143B-281.1. The WRC’s duties include: administering laws relating to game,

freshwater fish, and other wildlife resources; developing wildlife management policy

for state lands; creating licensing rules regarding hunting, fishing, and use of public

lands; and designating species as endangered or threatened and developing

conservation plans. N.C. Gen. Stat. §§ 143B-281.1, 143-239. Prior to SB 512, the

Governor appointed eleven of the WRC’s nineteen members and the General

Assembly appointed eight members. S.L. 2023-136, § 6.1.(a)-(b). The Governor

selected the chair while the WRC selected the vice-chair. Id. After SB 512, the

Governor appoints ten members, the General Assembly appoints ten members, and

the Commissioner of Agriculture appoints one member. Id. The WRC selects its chair

and vice-chair, and a majority quorum remains required. Id.

While the Governor does not directly appoint a majority of each commission’s

members, the executive branch holds majority-appointment power. In fact, the

Commissioner of Agriculture and Commissioner of Insurance, both members of the

Council of State, along with the Governor combine to grant the executive branch

majority-appointment power concerning the EMC, CRC, and WRC. Moreover, given

the commissions’ majority quorums for the transaction of business, the executive

branch “can exert most of the control over the executive policy that is implemented”

- 19 - STEIN V. BERGER

by the commissions. See McCrory, 368 N.C. at 647, 781 S.E.2d at 257. The

restructuring of the EMC, CRC, and WRC, therefore, does not violate separation of

powers because “the Governor’s duty to ‘take care that the laws be faithfully executed’

. . . is a nonexclusive duty conferred upon all ten Council of State members.” See

Stein, 387 N.C. at 578 n.4, 915 S.E.2d at 148 n.4. Accordingly, the panel did not err

by concluding that the restructuring of the EMC, CRC, and WRC was constitutional.

E. BCC

HB 488 takes the certain functions belonging to the BCC and assigns them to

a new entity, the Residential Code Council (“RCC”). S.L. 2023-108, § 1.(a). The RCC

is housed within the Department of Insurance and is responsible for: revising the

building codes applicable to residential properties in the State, hearing appeals, and

developing formal interpretations of building codes. Id.; N.C. Gen. Stat. § 143-136.

Prior to HB 488, the Governor appointed all seven members of the BCC, the BCC

selected its own chair, and four members were required for the quorum. S.L. 2023-

108, § 1.(a). After HB 488, with the RCC performing functions of the BCC, the

Governor appoints seven of the RCC’s thirteen members, the General Assembly

appoints six members, the Governor selects the chair, the chair appoints members to

committees, and nine members are required for the quorum. Id.

By restructuring the BCC in this manner, the Governor controls the majority

and the chair, who controls the composition of committees. While the change in size

and voting structure does not guarantee the Governor total control over the RCC’s

- 20 - STEIN V. BERGER

actions, the Governor nonetheless retains “enough control” because his appointed

members constitute seven of the nine members required for the quorum. See

McCrory, 368 N.C. at 646, 781 S.E.2d at 256; Cooper Confirmation, 371 N.C. at 800,

822 S.E.2d at 289–90. Given the quorum requirement, it is not as though the General

Assembly’s six appointed members can take action without the approval of at least

three of the Governor’s appointed members. As the General Assembly did not violate

separation of powers, the panel did not err by concluding that the restructuring of the

BCC was constitutional.

V. Conclusion

We conclude the General Assembly violated separation of powers by

restructuring the BOT, EIC, and CPH. The General Assembly, however, did not

violate separation of powers by restructuring the WRC, EMC, CRC, and BCC.

Accordingly, we affirm in part and reverse in part.

AFFIRMED in part and REVERSED in part.

Judge TYSON concurs.

Judge MURRY concurs by separate opinion.

- 21 - No. COA24-440 – Stein v. Berger

MURRY, Judge, concurring.

“Deriving a single definition of executive power could never be a simple

exercise.” Jack N. Rakove, Original Meaning: Politics and Ideas in the Making of the

Constitution 245 (1996) [hereinafter Rakove, Original Meaning]. So too here. Because

I agree with each Commission-specific examination of gubernatorial control over the

restructured appointment process, I fully concur with the majority’s well-reasoned

opinion. I write separately, however, for two reasons: (1) to address certain implicit

questions of North Carolina’s intra-Executive Branch separation of powers omitted

by Plaintiff in his principal brief and (2) to defend the methodological interpretation

most suited to the task of discerning the relevant constitutional provisions at issue—

original public meaning based on analogical reasoning from text, history, and

precedent.1 See Antonin Scalia, A Matter of Interpretation 44–46 (new ed. 2018)

[hereinafter Scalia, Interpretation]. Contra, e.g., Harper v. Hall, 384 N.C. 292, 393

(2023) (Earls, J., dissenting).

I. Executive Structure

1 I leave the explanation of other originalist theories to minds far greater than my own. See generally, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 10, 16–17 (1971) (proposing jurisprudence based on “[F]ramers’ . . . inten[t]” as determined by “text and history”); Keith E. Whittington, Constitutional Interpretation 59 (1999) (advocating originalism based on “a prior and fixed idea . . . contained in the textual language”); John O. McGinnis & Michael B. Rappaport, Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction, 103 Nw. U. L. Rev. 751, 752 (2009) (deducing original meaning based on “content of the interpretive rules in place when the Constitution was enacted”); McKinney v. Goins, 387 N.C. 35, 60, 62 (2025) (Earls, J., concurring in result) (articulating “extreme originalism” based on circumstantial totality of “confus[ion], extrem[ity], and hypocri[sy]”). STEIN V. BERGER

MURRY, J., concurring

As articulated in a separate proceeding, some of Plaintiff’s arguments touch

upon “the General Assembly’s ability to reassign certain duties among executive

constitutional officers within the [E]xecutive [B]ranch.” Stein v. Berger, 387 N.C. 575,

577 (2025) (emphasis omitted). The text of the State Constitution’s Article III

specifies their respective duties and the General Assembly’s role in shaping them.

See N.C. Const. art. III. Our State’s robust corpus of historical scholarship informs

that text’s meaning as it constitutionally developed. See, e.g., Earle H. Ketcham, The

Sources of the North Carolina Constitution of 1776, 6 N.C. Hist. Rev. 215, 218–20

(1929) [hereinafter Ketcham, Sources]; Emery B. Denny et al., Report of the N.C. State

Constitution Study Commission 104 (1968) [hereinafter N.C. Const. Report]; John V.

Orth, North Carolina Constitutional History, 70 N.C. L. Rev. 1759, 1765–67 (1992)

[hereinafter Orth, N.C. Const. Hist.]. Our precedents reflect State traditions in

recognition of stare decisis’s “pedigree in the unwritten common law” of North

Carolina. Gamble v. United States, 587 U.S. 678, 714 (2019) (Thomas, J., concurring)

(citing 1 William Blackstone, Commentaries *68–89).

A. Text

Contrary to the unitary federal executive, see Steven G. Calabresi &

Christopher S. Yoo, The Unitary Executive 30–38 (2008), Article III divides our

Executive Branch’s powers among the plural Council of State, with the Governor chief

among them, N.C. Const. art. III, § 1–2, 7–8. Ratified again in 1971, the Article

outlines the structure and occupants of that Branch. Section 1 “vest[s] in the

2 STEIN V. BERGER

Governor” “[t]he executive power of the State.” Id. art. III, § 1. Section 5 specifies at

least eleven constitutional duties within the ambit of that power. E.g., id. art. III, § 5,

cl. 4 (Take Care Clause); id. art. III, § 5, cl. 5 (Commander in Chief Clause). Sections

2, 7, and 8 establish the other nine statewide-elected executive officers that

collectively form our Council of State, including the Lieutenant Governor. See id. art.

III, §§ 2, 7–8. Unlike for the Governor, though, Article III specifies only that the

Lieutenant Governor “perform such additional duties as the General Assembly or the

Governor may assign to h[er],” id. art III, § 6, and that the other Councilors’ “duties

shall be prescribed by law,” id. art. III, § 7, cl. 2. Article XIV reaffirms the General

Assembly’s authority to prescribe these “general laws.” Id. art. XIV, § 3.

Read together, these Clauses “fairly impl[y],” Antonin Scalia & Bryan A.

Garner, Reading Law 16 (2012), “at least ‘three categories’ of executive duties” that

fall syllogistically far short of some “[un]precedent[ed] . . . framework,” Stein, 387

N.C. at 591 (Earls, J., dissenting). First, the State Constitution does express specific

executive duties of the Governor and Lieutenant Governor. See id. at 579 (majority

op.). Second, it does express that other executive duties be specifically “assigned by

law.” Id. Thus, third, it does imply a potentially broader category of unspecified

“duties inherent in a given executive role.” Id. But true enough, executive inherency

is conceptually opaque enough to invite mischief. See Arthur M. Schlesinger, Jr., The

Rise of Presidential War, in The Imperial Presidency ch. 3 (1973); Youngstown Sheet

& Tube Co. v. Sawyer (Steel Seizure Case), 343 U.S. 579 (1952). So, unlike in past

3 STEIN V. BERGER

cases that addressed only inter-Branch separations of power, the question is now: To

whom and to what extent within the State Executive Branch can the General

Assembly exercise its legislative power to “alter from time to time” the executive

power? N.C. Const. art. III, § 5, cl. 10.

B. History

Our founding Constitution vested plenary power in the Legislative Branch,

with the Judicial and Executive Branches only attaining constitutional vestment in

1868. Compare N.C. Const. of 1776, Declaration of Rights, § 1 (legislative vesting

clause), with N.C. Const. of 1868 art. IV, § 4 (judicial vesting clause), and id. art. III,

§ 1 (executive vesting clause). The current Constitution of 1971 semantically

simplified but substantively reaffirmed these grants. See N.C. Const. Report 71–73.

After both houses rejected the originating bills under Article XIII, see H.B. 509, 1969

Gen. Assemb., Reg. Sess. (N.C. 1969); S.B. 272, 1969 Gen. Assemb., Reg. Sess. (N.C.

1969), the General Assembly declined to put an amendment to the voters that would

have granted the Governor any veto power.2 Contra N.C. Const. Report 101–06.

The Constitution of 1776 disregarded any pretense of coequality by subjecting

all executive officers to an annual legislative election and by “restrain[ing]” their

“executive [p]owers . . . according the [l]aws of the State.” N.C. Const. of 1776, § XIX;

2 A quarter-century after ratification, the General Assembly reconsidered this decision and put the gubernatorial veto to North Carolina’s voters, who collectively ratified an amendment subject to a three-fifths override vote in each house. See Act of Mar. 8, 1995, ch. 5, 1995 N.C. Sess. Laws 6.

4 STEIN V. BERGER

see Ketcham, Sources at 218 (“The legislature was composed of two houses[ ] . . . as

supreme as ever John Locke might desire.”). Contra The Federalist No. 68 (Alexander

Hamilton). The Constitution of 1868 vested the General Assembly with analogous

authority to “prescribe[ ] by law” the duties of every Councilor of State save the

Governor himself. N.C. Const. of 1868 art. III, §§ 13–14. To this day, the Assembly

has generally defined the scope and balance of these executive duties through its

“prescri[ption of] the functions, powers, and duties of the administrative departments

and agencies of the State,” N.C. Const. art. III, § 5, cl. 10, run by those Councilors

whose authorities it “prescribe[s] by law,” id. art III., § 7, cl. 2.

The opposing two Branches and our citizenry have repeatedly acknowledged

the General Assembly’s relative power throughout the intervening centuries. See,

e.g., Trs. of Univ. v. Foy, 2 Hayw. 310, 320 (1804) (“The authority of the Executive is

too confined” “[by] the [C]onstitution” “to . . . give[ ] cause for apprehension . . . .”);

Members of the Gen. Assemb.—Privilege, 19 N.C. Op. Att’ys Gen. 67 (1926–1928)

(“Under our Constitution, the Legislative Department is the residuum of all power

not otherwise conferred or retained.”); N.C. Const. Report 104 (“In North Carolina,

most of the Governor’s powers derive from statute, not the [C]onstitution.”). Thus,

our Constitution “has its own unique history” of executive power and coequality

notions “both in terms of the constitutional text itself and of [our] judiciary’s

interpretation of that text.” Cooper v. Berger, 371 N.C. 799, 813 (2018).

C. Precedent Qua Tradition

5 STEIN V. BERGER

By structuralizing the Governor’s historical position as “only the leading

member” of a “plural body” “elected either by the assembly or by the people at large,”

Rakove, Original Meaning 252, our Constitution’s particularly plural executive

requires “unique state . . . theoretical considerations” inapposite to the federal

presidency,3 Jonathan L. Marshfield, America’s Other Separation of Powers

Tradition, 73 Duke L.J. 545, 575–77 (2023) (critiquing Cooper v. Berger¸ 371 N.C.

799, on those grounds). State-specific considerations relevant here include at least,

one, the historical and practical concentration of governmental power in the General

Assembly relative to its sibling Branches, see Orth, N.C. Const. Hist., 70 N.C. L. Rev.

at 1762–63; Harper, 384 N.C. at 322 (majority op.), two, that same Assembly’s

legislative ability to strip the Governor “of many of [his] present powers” “in a

moment of rashness,” N.C. Const. Report 104, three, the “clear potential for conflict

between” “constitutional[ly] independ[ent] . . . office[r]s” of the Executive Branch as

a result of “their differing functions and duties,” Tice v. Dep’t of Transp., 67 N.C. App.

48, 54 (1984), and, four, a State Founding Father’s recognition that we lack the

judicial “authori[ty] to say that an act is absolutely void merely because, in the

3 Our courts’ interpretations of the State Constitution’s separation of powers between its Branches regularly diverge from those of its federal counterparts (and with some occasional significance). Contrast, e.g., Bacon v. Lee, 353 N.C. 696, 717 (2001) (reasoning that “judicial review of the exercise of clemency” over a convicted felon “would unreasonably disrupt a core power” of North Carolina’s Governor), with Bob Woodward & Scott Armstrong, The Brethren 415 (1st pbk. ed. 2005) (“jettison[ing]” of Chief Justice Burger’s draft “core functions argument” by Associate Justices for what became a “due process” “basis” in United States v. Nixon, 418 U.S. 683 (1974)).

6 STEIN V. BERGER

opinion of the court, it is contrary to natural justice,” Minge v. Gilmour, 17 F. Cas.

440, 444 (C.C.D.N.C. 1798) (No. 9,631) (Iredell, Circuit Justice) (interpreting North

Carolina’s Law of the Land, Jury Trial, and Ex Post Facto Clauses).

II. Original Public Meaning

Recent State and Federal bench proclamations compel a recurrence to

fundamental principles of interpretation that I believe should and must control the

resolution of these issues. E.g., State v. Chambers, 387 N.C. 521, 530 (2025) (Riggs,

J., concurring in part and dissenting in part) (rejecting “arcane originalism”); Stanley

v. City of Sanford, 145 S. Ct. 2058, 2089 n.12 (2025) (Jackson, J., dissenting)

(dismissing “incessantly malleable” textualism). Like purposivism and pragmatism,

originalism and textualism4 are jurisprudential schools with divergent individual

conceptions of the “correct” inputs and assumptions. See Stephen Breyer, Reading the

Constitution: Why I Choose Pragmatism, Not Textualism 104–09 (2024) [hereinafter

Breyer, Constitution]; Keith E. Whittington, Constitutional Interpretation: Textual

Meaning, Original Intent, and Judicial Review 35–37 (1999). But all of them draw

upon certain fundamental canons of interpretation in hopes of respecting the

(small-r) republican principles of representative democracy. Compare Breyer,

4 Although bound in part by mutual disregard for drafters’ intent, contra McKinney, 387 N.C. at 61– 62, textualism focuses on the written text to the exclusion of its “broader social purposes,” Antonin Scalia, A Matter of Interpretation 23 (new ed. 2018). It typically (but not exclusively) applies to statutes instead of constitutions for reasons beyond the scope of this concurrence. See Antonin Scalia & Bryan A. Garner, Reading Law 16–26 (2012) [hereinafter Scalia & Garner, Reading Law].

7 STEIN V. BERGER

Constitution at 105 (“[A] purpose-oriented approach . . . is more consistent with the

democratic values upon which legislation rests.”), with Scalia, Interpretation 131–33

(“The criterion of ‘legislative intent[’] . . . invites the judge to impose his will.”).

A. Principles

Quite unlike the former two schools, however, originalists emphatically reject

the “idea that doctrine, ethos, or prudential concerns can trump the communicative

content of the constitutional text.” Lawrence B. Solum, Originalism and

Constitutional Construction, 82 Fordham L. Rev. 453, 482 (2013) [hereinafter Solum,

Originalism]. We instead center a constitution’s “text, history, and tradition.” N.Y.

State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 79 (2022) (Kavanaugh, J., concurring).

In lieu of “tradition” per se, though, North Carolinian jurists draw upon precedent to

acknowledge both our predecessors’ adjudications, e.g., Ballard v. Hill’s Heirs, 3 Mur.

410, 414 (1819) (“conne[ct]ion with . . . history”); State ex rel. Wilson v. Jordan, 124

N.C. 683, 694–95 (1899) (“doctrine of Hoke v. Henderson[, 4 Dev. 1 (1833)]”); State ex

rel. McCrory v. Berger, 368 N.C. 633, 639 (2016) (“text, . . . historical context, . . . and

our precedents”), and the States’ collective font of American common law, see N.C.G.S.

§ 4-1 (2023); Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

So we ground our consideration of the three hierarchical factors—text, history,

and precedent—on the twin principles of (1) legal “fixation” by which a provision’s

meaning is determined at the certain point our citizenry commonly understood it as

ratified and (2) normative “constraint” by which we ought to reduce the projection of

8 STEIN V. BERGER

our subjective value judgments onto positive law.5 Solum, Originalism at 459–60.

Contrary to the exclamations of its harshest critics (and, yes, some of its biggest fans),

originalism properly understood does not purport to be “a mechanical process” and

does “require judgment” to reach the most accurate constitutional meaning. Keith E.

Whittington, The New Originalism, 2 Geo. J.L. & Pub. Pol’y 599, 611 (2004). But it

also decreases the risk of mistaking individual policy preferences for common law or

constitutional doctrine, see, e.g., N.C. State Conf. of NCAAP v. Moore, 382 N.C. 129,

160–65 (2022), in search of “a roving jurisdiction to do good.” Bob Woodward & Scott

Armstrong, The Brethren 106 (1st pbk. ed. 2005) (quoting then-Justice Hugo Black).

B. Considerations

5 To be sure, originalism lacks the epistemic “illuminat[ion of] a path,” State v. Borlase, 387 N.C. 295, 327 (2025) (Earls & Riggs, JJ., dissenting), towards those “evolving standards of decency that mark the progress of a maturing society,” State v. Kelliher, 381 N.C. 558, 596 (2022); State v. Conner, 381 N.C. 643, 660 (2022); Dewalt v. Hooks, 382 N.C. 340, 355 (2022) (Earls, J., dissenting). But after five decades of open debate in the classroom, courtroom, and public square, its established framework is hardly “pseudo-intellectual[ ].” McKinney v. Goins, 387 N.C. 35, 61 (2025) (Earls, J., concurring in result).

By virtue of the General Assembly’s de facto (much less de jure) supremacy through the people, our State courts lack the opportunities for platonic guardianship that living constitutionalism and its “noninterpretivist” derivatives offer, John Hart Ely, Democracy and Distrust 88 n. (1980) (“seeking . . . constitutional judgment in one’s [own] rendition of society’s fundamental values”)—all theories of jurisprudence enviably unburdened by constitutional text, electoral accountability, or self-doubt, see, e.g., McKinney, 387 N.C. at 60 n.1 (criticizing majority’s use of “a stagnant, archaic, hidebound document steeped in the prejudices and superstitions of a time long past” (quoting Michael H. v. Gerald D., 491 U.S. 110, 141 (1989) (Brennan, J., dissenting)); accord Stuart Banner, The Most Powerful Court in the World 406 (2024) (then-President Johnson admitting that “to amend the [Federal] Constitution[,] we need a 2/3 majority in Congress and then a vote of 3/4 of the [S]tates” but that then- Justice William Douglas “can do it in one afternoon” (quoting Mr. Justice Douglas’ Twenty-Fifth Anniversary on the Supreme Court: Dinner Proceedings 3 (May 14, 1964) (on file with F.D.R. Presid’l Libr., James H. Rowe, Jr. Papers, Box 89))).

9 STEIN V. BERGER

Plaintiff implausibly asserts that the Council of State’s executive status is

“irrelevant” to his “duty to take care the laws are faithfully executed.” But that

category of authorities “inherent in a given executive role,” Stein, 368 N.C. at 579,

definitionally falls outside the State Constitution’s textually committed separation of

powers, thus creating a “construction zone”6 of “concurrent authorit[ies] . . . in which

[their] distribution is uncertain,” Solum, Originalism at 502 (quoting Steel Seizure

Case, 343 U.S. at 637 (Jackson, J., concurring)).

To wit, the majority correctly upholds the constitutionality of restructuring the

WRC, EMC, and CRC into the Agriculture and Insurance Commissioners’ portfolios

because doing so preserves the power of the Executive Branch relative to the

Legislative. But that conclusion leaves open questions of the assignments to those

discrete Councilors per se. These assignments certainly fall within the conceptually

“major purposes” of the Councilors’ respective “core constitutional roles.” Stein, 387

N.C. at 581–82 (Deitz, J., concurring) (quoting N.C. Const. art. III, § 11). But the

Major Purposes Clause may plausibly modify “as part of its core prepositional phrase”

the possible “head noun,” State v. Jenkins, COA24-899, 2025 WL 2232043, at *5 (N.C.

6 At the risk of (more) pretension, I refer only to a situation “where the communicative content of the constitutional text is vague” enough to permit multiple reasonable conclusions about the original meaning of North Carolina’s executive power. Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 502 (2013). The underlying “interpretation–construction distinction” is a compelling principle of but ultimately parenthetical to my broader point here. Id. at 490–94, contested in Scalia & Garner, Reading Law 13–15. See generally Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning 208 (1999) (defining “construction” as “realiz[ation through] . . . political practice” of “a denser web of values, institutions, procedures, and rights” “established by the constitutional text”).

10 STEIN V. BERGER

Ct. App. Aug. 6, 2025), of only administrative departments and not offices of the State,

N.C. Const. art. III, § 11. Administrative law being largely a New Deal creation, these

two latter Clauses may have materially distinct historical pedigrees relative to their

respective major purposes. See Samuel Estreicher & David L. Noll, Legislation and

the Regulatory State 445–48 (3d ed. 2022).

I also agree our Constitution “contemplate[s]” “th[is] mere reallocation of . . .

authority within the Council of State,” Stein, 387 N.C. at 581 (Berger, J., concurring),

but could see an implicit “play in the joints” between the Executive Vesting and

Administrative Reorganization Clauses, cf. Locke v. Davey, 540 U.S. 712, 718 (2004).

The “portfolio of responsibilities” “for disfavored members of the Council” are indeed

“gutt[able] by legislative fiat” (subject to a presumably overridden veto). Stein, 387

N.C. at 592 (Earls, J., dissenting); accord N.C. Const. Report 104 (“in a moment of

rashness”). And an “ultimate responsibility” for law enforcement does not mean a

singular one. Cooper, 371 N.C. at 799. Contrast Ultimate, Black’s Law Dictionary (4th

ed. 1968) (“[L]ast in the . . . sequence tended toward by all that precedes . . . .”), with

Singular, id. (“Unitary; . . . affecting only one person . . . .”). While Plaintiff is “vested”

with “[t]he executive power of the State,” Article III’s specific enumeration of those

substantial gubernatorial powers may imply a limitation to them alone. N.C. Const.

art. III, § 1. But because the majority’s well-reasoned opinion recognizes the breadth

and limitations of the General Assembly’s power to alter the Executive Branch’s own

powers, I, with this further explanation, concur in full.