North Carolina has seen its share of constitutional tugs-of-war between the legislative and executive branches over the governor's authority to manage state government and the requirement that the General Assembly's laws be carried out.
"Even when we were a purely Democratic state, you had these tensions between the Legislature and the governor," said Burley Mitchell, a former chief justice of the state Supreme Court. "Everybody wants to drive the bus."
There's a twist this time because outgoing Democratic Gov. Beverly Perdue is pressing the Republican-led Legislature. Lawmakers had voted to override Perdue's veto of the budget, the first time in state history that happened. And Republicans and their allies say Perdue recently crossed the line of executive power to a place never before seen.
Perdue signed an executive order Feb. 29 to delay by one year the collection of new and higher ferry tolls, even as the budget directed her administration to implement the fares starting April 1. The week before, she said she would shift $9.3 million in federal funds earmarked for child-care subsidies to enroll another 2,000 children in a state preschool program. The budget had cut spending from that program by 20 percent.
Lawmakers say either that Perdue's decisions are unenforceable or that her administration has given little explanation of how she'll carry them out.
What Perdue has done is "completely contrary to a budget that was passed, was adopted according to law and that she has a constitutional obligation to carry out," said Senate leader Phil Berger, R-Rockingham, adding she's "acting in a way that I don't believe a governor of North Carolina ever in the past would have contemplated acting."
Whether Berger's comment is fact or exaggeration may hinge on whether Perdue is challenged in court. Perdue so far is defending her actions more with partisanship and marketing — rather than legal arguments — that may make Republicans think twice before suing her. By announcing in January she's not running for re-election, Perdue also can repel criticism that she's only pandering to voters.
The governor "is determined to do whatever she can to help working families succeed in education and in a recovering economy rather than add to their burden, as the Legislature appears intent on doing," Perdue press secretary Chris Mackey said.
Perdue labels the new tolls a "ferry tax" placed by Republicans upon coastal residents still recovering from Hurricane Irene, suffering with high unemployment and who have expressed opposition to the tolls at public hearings. While Perdue said expanded preschool funding is necessary under a court order to get more children into the program, the television footage of her visiting Raleigh preschoolers just after she made the announcement is difficult for opponents to counter.
Republicans and other lawyers say Perdue has no legal leg to stand on with her toll moratorium.
The budget law told the Board of Transportation it "shall establish tolls for all ferry routes" save for those between Ocracoke and Hatteras islands and between Knotts Island and mainland Currituck County. The Department of Transportation has proposed higher tolls on three routes and new tolls on two others to meet the budget's directive to generate $5 million in fare revenues annually.
Perdue's executive order said the law gives DOT discretion to collect any established tolls as it deems expedient. But Gerry Cohen, a constitutional expert on the Legislature's nonpartisan staff, said that discretion doesn't exist anymore. The governor is bound by the constitution to carry out the budget law, Cohen wrote in a memo to the co-chairmen of the House transportation budget subcommittee meeting last week.
"She is required to administer the budget ... if she doesn't like it, she just has to suck it up and do her job," Jeanette Doran, executive director of the conservative-leaning North Carolina Institute for Constitutional Law, said in an interview.
Doran represented voters who challenged former Gov. Mike Easley's authority to take money from the Highway Trust Fund during a fiscal emergency to balance the budget. Mitchell, a Democrat who filed a friend-of-the-court brief in that case on behalf of three former Democratic and Republican governors supporting Easley, said on first glance the toll budget provision seems internally inconsistent.
"It sounds like to me that it leaves a lot of room for opposing lawyers on both sides to make very reasonable arguments," Mitchell said.
The transportation subcommittee is asking Attorney General Roy Cooper's office to weigh in. Pryor Gibson, the governor's leading lobbyist at the Legislature, said "the governor had legal opinions that stated she had full authority to issue this executive order."
Berger said he wants to hear from Cooper, too. Short of litigation, the Legislature also could pass a law this spring to nullify the executive order and order the tolls be collected, but Perdue could veto that, too.
In the trust fund case, the sides aligned along branches of government — Democratic and Republican governors versus Democratic and Republican legislative leaders. It doesn't appear that Democrats at the Legislature are willing yet to join Republicans in their complaints about Perdue.
Perdue has demonstrated in implementing a "very bad budget" that "she follows the mandates of the Legislature," said House Minority Leader Joe Hackney, D-Orange. The solution to the flap over the executive order, Hackney added, is "simply to repeal the tolls."
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