               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 409PA17

                              Filed 21 December 2018
ROY A. COOPER, III, in his official capacity as Governor of the State of North
Carolina
              v.
PHILIP E. BERGER, in his official capacity as President Pro Tempore of the North
Carolina Senate, and TIMOTHY K. MOORE, in his official capacity as Speaker of
the North Carolina House of Representatives


      On discretionary review pursuant to N.C.G.S. § 7A-31 and on appeal of right

of a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) of a

unanimous, per curiam decision of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d

176 (2017), affirming an order of summary judgment entered on 17 March 2017 in

Superior Court, Wake County, by a three-judge panel under N.C.G.S. § 1-267.1.

Heard in the Supreme Court on 2 October 2018.


      Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F.E. Smith,
      Jim W. Phillips, Jr., and Eric M. David, for plaintiff-appellant.

      Nelson Mullins Riley & Scarborough LLP, by D. Martin Warf, Noah H.
      Huffstetler, III, and Candace Friel, for defendant-appellees.


      MARTIN, Chief Justice.


      The Governor is our state’s chief executive. He or she bears the ultimate

responsibility of ensuring that our laws are properly enforced. See State ex rel.

McCrory v. Berger, 368 N.C. 633, 635, 781 S.E.2d 248, 250 (2016). Indeed, the
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                                      Opinion of the Court



Constitution of North Carolina enshrines this executive duty: “The Governor shall

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

       But the Governor is not alone in this task. Our state constitution establishes

nine other offices in the executive branch. See id. art. III, §§ 2, 7. These offices are

elected and consist of 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.

Collectively, these ten offices are known as the Council of State. See id. art. III, § 8.1

       To further assist the executive branch in fulfilling its purpose, our constitution

requires the General Assembly to “prescribe the functions, powers, and duties of the

administrative departments and agencies of the State.” Id. art. III, § 5(10). The

heads of the administrative departments that are not headed by members of the


       1  The historical roots of the Council of State can be traced to the advisory councils of
the English monarchs. The Research Branch, Div. of Archives & History, N.C. Dept. of
Cultural Res., The Council of State in North Carolina: An Historical Research Report 8 (1986).
In North Carolina, the use of an executive council predates our earliest constitution. See
generally id. at 8-127 (discussing the development of the Council of State before the American
Revolution). At the founding, the Council of State consisted of seven persons appointed by
the General Assembly to advise the Governor. N.C. Const. of 1776, § XVI. With the passage
of the Constitution of 1868, “the Council of State became a body of directly elected officers,
with executive duties of their own.” John V. Orth & Paul Martin Newby, The North Carolina
State Constitution 124-25 (2d ed. 2013); see also N.C. Const. of 1868, art. III, § 14 (“The
Secretary of State, Auditor, Treasurer, Superintendent of Public Works, and Superintendent
of Public Instruction, shall constitute, ex officio, the Council of State . . . . The Attorney
General shall be, ex officio, the legal adviser of the Executive Department.”). The most recent
iteration of the Council of State—consisting of the ten elected Article III officers that we have
just listed—has remained unchanged since our current constitution was ratified. See N.C.
Const. art III, §§ 7-8.

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Council of State are appointed to their posts rather than being elected by the people.

See N.C.G.S. § 143B-9(a) (2017). These appointed officers make up the membership

of the Governor’s Cabinet. See, e.g., id. § 126-6.3 (2017 & Supp. 2018) (referring to

the administrative departments created by Chapter 143B of the North Carolina

General Statutes as “Cabinet agencies”); id. § 143-745(a)(1) (2017) (defining “Agency

head” as “the Governor, a Council of State member, a cabinet secretary, . . . and other

independent appointed officers with authority over a State agency” (emphasis

added)). “[T]o perform his constitutional duty,” the Governor must have “enough

control” over the members of his Cabinet to take care that the laws be faithfully

executed. McCrory, 368 N.C. at 646, 781 S.E.2d at 256.

      In this case, plaintiff Roy A. Cooper, III, the Governor of North Carolina,

challenges the appointments provision of N.C.G.S. § 143B-9(a), which grants the

North Carolina Senate the power to confirm the people that he nominates to serve in

his Cabinet. Plaintiff alleges that senatorial confirmation undermines his control

over the views and priorities of those who serve in his administration and violates

the separation of powers that our constitution guarantees. See N.C. Const. art. I, § 6.

      We hold that senatorial confirmation of the members of the Governor’s Cabinet

does not violate the separation of powers clause when, as is the case here, the

Governor retains the power to nominate them, has strong supervisory authority over

them, and has the power to remove them at will. The Governor’s power to nominate

is significant, and the ultimate appointee will be a person that he alone has chosen,

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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-appointment

control over how his Cabinet members perform their duties. As a result, subsection

143B-9(a)’s senatorial confirmation requirement leaves the Governor with enough

control to take care that the laws be faithfully executed, and therefore does not violate

the separation of powers clause.

                                            I

      N.C.G.S. § 143A-11 creates ten principal administrative departments headed

by the members of the Council of State—sometimes called the “Council of State

agencies.” See, e.g., N.C.G.S. § 126-6.3; see also N.C. Const. art. III, §§ 2, 7, 8.

Supplementing these departments are eleven additional principal administrative

departments named in N.C.G.S. § 143B-6—the Community Colleges System Office

and the Departments of Natural and Cultural Resources, Health and Human

Services,   Revenue,   Public    Safety,   Environmental     Quality,   Transportation,

Administration, Commerce, Information Technology, and Military and Veterans

Affairs. These eleven departments are sometimes called “Cabinet agencies.” See,

e.g., id. § 126-6.3.    The constitution does not directly mention any of these

departments; they are statutory creations.

      The heads of these departments—i.e., the members of the Governor’s

Cabinet—are statutory officers; they hold offices created by statute. See, e.g., id.



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§ 143B-52 (2017) (naming the Secretary of Natural and Cultural Resources as the

head of the corresponding department); id. § 143B-139 (2017) (doing likewise for the

Secretary of Health and Human Services). These officers are appointed according to

a process defined by statute. That statute currently grants the Governor the power

to “appoint[ ]” individuals to fill each Cabinet position, “subject to senatorial advice

and consent in conformance with Section 5(8) of Article III of the North Carolina

Constitution [i.e., the constitution’s appointments clause].” Id. § 143B-9(a); see also

N.C. Const. art. III, § 5(8) (“The Governor shall nominate and by and with the advice

and consent of a majority of the Senators appoint all officers whose appointments are

not otherwise provided for.”).

      Other provisions of Chapter 143B address the Governor’s ability to supervise

and remove Cabinet members. N.C.G.S. § 143B-4 reiterates the Governor’s role as

“the Chief Executive Officer of the State.” See also N.C. Const. art III, § 1 (vesting

the executive power of the State in the Governor). That same statute gives the

Governor final authority to “formulat[e] and administer[ ] the policies of the executive

branch.” N.C.G.S. § 143B-4 (2017). In addition, Cabinet members must provide the

Governor with extensive information about the work of their respective departments.

For example, Cabinet members must “submit to the Governor an annual plan of

work” and “an annual report covering programs and activities for each fiscal year.”

Id. § 143B-10(h) (2017). Cabinet members must also “develop and report to the

Governor legislative, budgetary, and administrative programs to accomplish” long-

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term policy goals. Id. § 143B-10(i) (2017). If the Governor wishes to remove any of

the members of his Cabinet, he or she may do so at any time, for any reason. See id.

§ 143B-9(a).

      Plaintiff alleges that the appointments process for Cabinet members set forth

in N.C.G.S. § 143B-9(a) is unconstitutional. On 30 December 2016, plaintiff filed a

complaint in Superior Court, Wake County, challenging the constitutionality of

another act of the General Assembly.2 On 10 January 2017, plaintiff amended his

complaint to allege that a separate act requiring senatorial confirmation of his

Cabinet members violates the appointments clause and the separation of powers

clause of our state constitution. See N.C. Const. art. I, § 6 (separation of powers

clause); id. art. III, § 5(8) (appointments clause). Plaintiff sought a declaration that

this aspect of subsection 143B-9(a)’s appointments process is unconstitutional and a

permanent injunction barring the operation of section 143B-9 as written.

      A divided three-judge panel of the superior court determined that the

appointments process in subsection 143B-9(a) does not violate the constitution and

granted summary judgment to defendants. Plaintiff appealed this decision to the

Court of Appeals. On 7 November 2017, the Court of Appeals issued a per curiam

opinion affirming the trial court’s decision. Cooper v. Berger, ___ N.C. App. ___, ___,

807 S.E.2d 176, 181-82 (2017) (per curiam). Plaintiff then filed a notice of appeal of



      2   The legislative act initially challenged is not a subject of this appeal.

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a substantial constitutional question pursuant to N.C.G.S. § 7A-30(1) and also

petitioned this Court for discretionary review of the same constitutional question

pursuant to N.C.G.S. § 7A-31. We retained plaintiff’s notice of appeal and allowed

plaintiff’s petition.

                                          II

       North Carolina courts have the power and the duty to determine whether

challenged acts of the General Assembly violate the constitution.          Bayard v.

Singleton, 1 N.C. (Mart.) 5, 6-7 (1787). This Court interprets the provisions of the

Constitution of North Carolina with finality. E.g., McCrory, 368 N.C. at 638, 781

S.E.2d at 252; Hart v. State, 368 N.C. 122, 130, 774 S.E.2d 281, 287 (2015). We review

constitutional questions de novo. Piedmont Triad Reg’l Water Auth. v. Sumner Hills,

Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001).

       Plaintiff alleges that the Senate’s “authority to approve, or disapprove, the

persons selected by the Governor to serve” as Cabinet members pursuant to

subsection 143B-9(a) “improperly encroaches upon the Governor’s constitutional

authority.” In his own words, plaintiff’s challenge pertains to “the structure created

by” subsection 143B-9(a) and to the degree of control that subsection 143B-9(a) allows

the Senate to exercise, “not [to] whether the [Senate] actually exerted that control.”

Cf. McCrory, 368 N.C. at 647, 781 S.E.2d at 257 (indicating that, when legislative

involvement in the appointment of executive officers is at issue, the separation of



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powers clause requires this Court to evaluate how much control the legislation in

question “allows the General Assembly to exert over the execution of the laws”

(emphasis added)). Plaintiff’s challenge thus amounts to a facial challenge to the

constitutionality of N.C.G.S. § 143B-9(a)—that is, a challenge that subsection

143B-9(a)’s advice-and-consent provision is unconstitutional in all circumstances. Cf.

Hart, 368 N.C. at 131, 774 S.E.2d at 288 (“[T]he party making [a] facial challenge

[must] meet the high bar of showing ‘that there are no circumstances under which

the statute might be constitutional.’ ” (quoting Beaufort Cty. Bd. of Educ. v. Beaufort

Cty. Bd. of Comm’rs, 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009))).3

       When reviewing an act of the General Assembly, we presume that the act is

constitutional, and we will declare it invalid only if it violates the constitution beyond

a reasonable doubt. Id. at 131, 774 S.E.2d at 287-88 (citing Baker v. Martin, 330 N.C.

331, 334-35, 410 S.E.2d 887, 889 (1991)). “[A] facial challenge to the constitutionality

of an act . . . is the most difficult challenge to mount successfully.” Id. at 131, 774

S.E.2d at 288. “We seldom uphold facial challenges because it is the role of the

legislature, rather than this Court, to balance disparate interests and find a workable

compromise among them.” Beaufort Cty. Bd. of Educ., 363 N.C. at 502, 681 S.E.2d at



       3While it is possible to envision a scenario in which the Senate’s arbitrary rejection of
capable nominees for a particular office might violate the separation of powers clause, “[t]he
fact that a statute might operate unconstitutionally under some conceivable set of
circumstances is insufficient to render it wholly invalid.” State v. Bryant, 359 N.C. 554, 564,
614 S.E.2d 479, 486 (2005) (quoting State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277,
282 (1998)).

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280. These well-established principles provide the lens through which we view this

case.

                                            A

        The separation of powers clause states that “[t]he 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. This concept is “a cornerstone of

our state and federal governments.” State ex rel. Wallace v. Bone, 304 N.C. 591, 601,

286 S.E.2d 79, 84 (1982).      Separating the powers of the government preserves

individual liberty by safeguarding against the tyranny that may arise from the

accumulation of power in one person or one body. See Montesquieu, The Spirit of the

Laws 151-52 (Thomas Nugent trans., Hafner Press 1949) (asserting that “there can

be no liberty” where two or more of these governmental powers “are united in the

same person”). “The clearest violation of the separation of powers clause occurs when

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

McCrory, 368 N.C. at 645, 781 S.E.2d at 256. Whether or not a violation of this kind

has occurred is a binary question, not a question of degree; one branch either is, or is

not, exercising power vested exclusively in another branch.

        In State ex rel. Wallace v. Bone, for example, we considered the

constitutionality of a law providing for the appointment of four sitting legislators to

the North Carolina Environmental Management Commission (EMC). 304 N.C. at



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591-92, 606-07, 286 S.E.2d at 79, 87. The General Assembly created the EMC as a

commission of one of the Cabinet agencies and tasked it with “promulgat[ing] rules

and regulations” aimed at protecting our state’s water and air. Id. at 607, 286 S.E.2d

at 87-88.    The EMC’s powers included “grant[ing] and revok[ing] permits,”

investigating regulatory violations, and “issu[ing] special orders pursuant to certain

statutes to any person whom the commission finds responsible” for regulatory

violations. Id. at 607, 286 S.E.2d at 88. This Court found it “crystal clear” that the

EMC’s functions and duties were “administrative or executive in character.” Id. at

608, 286 S.E.2d at 88. We held that the General Assembly “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.” Id. (emphasis added). In other words,

legislators were wielding executive power, which violated the per se rule prohibiting

one branch of government from exercising powers vested exclusively in another

branch.

      In this case, though, the per se rule from Wallace does not apply. As we held

in McCrory, the appointments clause “authorizes the Governor to appoint all

constitutional officers whose appointments are not otherwise provided for by the

constitution.”   368 N.C. at 644, 781 S.E.2d at 255 (emphasis added).             The

appointments clause therefore does not prohibit the General Assembly from




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appointing, or from confirming the nominations of, statutory officers. See id.4 And

this Court has long held “that appointing statutory officers is not an exclusively

executive prerogative.” See id. at 648, 781 S.E.2d at 258 (first citing Cunningham v.

Sprinkle, 124 N.C. 638, 643, 33 S.E. 138, 139 (1899); and then citing Trs. of Univ. of

N.C. v. McIver, 72 N.C. 76, 85 (1875)). Because the power to appoint statutory officers

is not vested exclusively in any branch, the lesser power to confirm statutory officers

is not vested exclusively in any branch, either.             As a result, no branch can, in

exercising the power to confirm statutory officers, violate the per se separation of

powers rule that Wallace established.

       Cabinet members are statutory officers. Their existence stems directly from

the Executive Organization Act of 1973, codified in Chapter 143B of our General

Statutes, not from any provision of the constitution. It follows that the appointments

process in subsection 143B-9(a), which governs the appointments of these statutory

officers, does not violate the per se Wallace rule.



       4  Our state constitution’s appointment model thus differs from the federal
appointment model, in which “[t]he [United States Constitution’s] Appointments Clause
prescribes the exclusive means of appointing ‘Officers.’ ” Lucia v. SEC, ___ U.S. ___, ___,138
S. Ct. 2044, 2051 (2018) (emphasis added); see also McCrory, 368 N.C. at 640 n.3, 781 S.E.2d
at 252 n.3 (quoting Buckley v. Valeo, 424 U.S. 1, 132, 96 S. Ct. 612, 688 (1976) (per curiam))
(explaining that the federal appointments clause “deliberately denie[s] Congress” any
appointment power over officers, and highlighting how that clause differs from our state
constitution’s appointments clause). Because of the nature of the federal model, the relevant
inquiry under the Federal Constitution is not whether the office is constitutional or statutory,
but whether the appointee is an officer or a “non-officer employee[ ].” See Lucia, ___ U.S.
at ___, 138 S. Ct. at 2051 (stating that, if the appointees in question are non-officer
employees, “the Appointments Clause cares not a whit about who named them”).

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                                  Opinion of the Court



                                           B

      Next, we must address whether the challenged process satisfies the functional

separation of powers test set forth in McCrory—which, unlike Wallace’s per se rule,

is a question of degree. Cf. McCrory, 368 N.C. at 646-47, 781 S.E.2d at 257 (“We

cannot adopt a categorical rule that would resolve every separation of powers

challenge to the legislative appointment of executive officers. . . . [W]e must examine

the degree of control that the challenged legislation allows the General Assembly to

exert over the execution of the laws.” (emphases added)).        When the challenge

involves the Governor’s constitutional authority, we must ask “whether the actions

of a coordinate branch ‘unreasonably disrupt a core power of the executive.’ ” Id. at

645, 781 S.E.2d at 256 (quoting Bacon v. Lee, 353 N.C. 696, 717, 549 S.E.2d 840, 854

(2001)).

      Our constitution gives the Governor the power and the duty to “take care that

the laws be faithfully executed.” N.C. Const. art. III, § 5(4); see also McCrory, 368

N.C. at 645, 649, 781 S.E.2d at 256, 258. While, as we have just discussed, the

appointments clause places no per se restrictions on the appointment of statutory

officers, the separation of powers clause requires that the Governor have “enough

control over” executive officers “to perform his constitutional duty” under the take




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care clause. McCrory, 368 N.C. at 646, 781 S.E.2d at 256.5 Because there is no

categorical rule that determines whether a statutory framework which involves the

General Assembly in the appointment of executive-branch statutory officers affords

the Governor enough control over those officers, “we must resolve each challenge by

carefully examining its specific factual and legal context.” Id. at 646-47, 781 S.E.2d

at 257.

       As we have previously indicated, the degree of control that the Governor has

over executive officers can be measured by considering “his ability to appoint [them],

to supervise their day-to-day activities, and to remove them from office.” Id. at 646,

781 S.E.2d at 256. In McCrory, we considered the balance between these factors

within the statutory frameworks of three administrative commissions. See id. at 636,

781 S.E.2d at 250. In each framework, the General Assembly had granted itself the

majority of appointments on the commission in question, had insulated the

commission from gubernatorial supervision, and had allowed the Governor to remove

commissioners only for cause. Id. at 646, 781 S.E.2d at 256-57. These frameworks,

we noted, “le[ft] the Governor with little control over the views and priorities of the

officers that the General Assembly appoints” and enabled “the General Assembly . . .

[to] exert most of the control over . . . executive policy . . . in any area of the law that




       5As in McCrory, “[o]ur opinion takes no position on how the separation of powers
clause applies to those executive departments that are headed by the independently elected
members of the Council of State.” Id. at 646 n.5, 781 S.E.2d at 256 n.5.

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the commission[s] regulate[d].” Id. at 647, 781 S.E.2d at 257. We therefore found

that the provisions challenged there violated the separation of powers clause. See id.

      Turning to the facts of this case, we first acknowledge that the officers at issue

here are not just members of administrative commissions; they are the heads of entire

administrative departments. As department heads, Cabinet members have far more

discretion, and wield far more executive power, than the commissioners in McCrory

did. Among other things, they have the authority to reorganize their departments,

to create and fill subordinate staff positions, and to establish advisory committees.

N.C.G.S. § 143B-10 (2017). In addition, Cabinet members are some of the Governor’s

closest deputies, and are critical to the Governor’s ability to take care that the laws

be faithfully executed.

      So the authority of these appointees is undoubtedly substantial. But a faithful

application of the three-factor test set forth in McCrory shows that the Governor

retains enough control over them to perform his constitutional duties. In short,

senatorial confirmation of Cabinet members does not unconstitutionally impede the

Governor’s power and duty under the take care clause because the Governor still has

the power to nominate them, has strong supervisory authority over them, and has

the power to remove them at will.

      With respect to the first McCrory factor, senatorial confirmation curtails the

Governor’s appointment power only minimally. As Federalist 76 suggests, the power



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to nominate is superior to the power to confirm. “In the act of nomination, [the chief

executive’s] judgment alone would be exercised . . . .”       The Federalist No. 76

(Alexander Hamilton); see also Myers v. United States, 272 U.S. 52, 121, 47 S. Ct. 21,

27 (1926) (observing that, in the federal model, the Senate’s rejection of a nominee

“does not greatly embarrass [the President] in the conscientious discharge of his high

duties in the selection of those who are to aid him, because the President usually has

an ample field from which to select for office, according to his preference, competent

and capable men”). The universe of people from whom the Governor may choose is

open—he may nominate any eligible person to serve as a member of his Cabinet. In

granting the Senate the power to confirm Cabinet nominees, the General Assembly

has undoubtedly granted the Senate some piece of the appointment power. But the

Governor retains the most important role in the process: the ability to choose, from

the universe of all eligible people, the person on whom the Senate will have an up-or-

down vote.

      This arrangement starkly contrasts with the statutory frameworks at issue in

our recent separation-of-powers-clause decisions.        In McCrory, we struck down

legislation in which the General Assembly had granted itself the unilateral authority

to appoint a majority of the commissioners on each of the commissions at issue. 368

N.C. at 637, 781 S.E.2d at 251. And in Cooper v. Berger, we rejected a framework in

which the Governor had to choose his appointees from two short lists prepared “by

the State party chair[s] of the two political parties with the highest number of

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registered affiliates,” with an equal number of members to be drawn from each list.

370 N.C. 392, 396, 809 S.E.2d 98, 101 (2018). Here, the Governor may select his

nominees from a virtually unlimited pool of qualified people.

      With respect to the second McCrory factor, moreover, the Governor’s

supervisory powers augment his control over the views and priorities of his Cabinet

members. The Governor is ultimately “responsible for formulating and administering

the policies of the executive branch of the State government.” N.C.G.S. § 143B-4.

Each Cabinet member must “submit to the Governor an annual plan of work for the

next fiscal year,” id. § 143B-10(h), and “report to the Governor legislative, budgetary,

and administrative programs to accomplish comprehensive, long-range coordinated

planning and policy formulation in the work of his department,” id. § 143B-10(i). And

many of the Cabinet members’ discretionary decisions regarding department

organization and operation require the Governor’s approval before taking effect. See,

e.g., id. § 143B-10(b) (providing that each principal State department head may,

“[w]ith the approval of the Governor, . . . establish or abolish . . . any division” within

the department head’s department); id. § 143B-10(j)(2) (providing that each principal

State department head “may adopt . . . [r]ules, approved by the Governor, to govern

the management of the department, which shall include the functions of planning,

organizing, staffing, directing, coordinating, reporting, budgeting, and budget

preparation which affect private rights or procedures available to the public”). In

short, the Governor has extensive supervisory power, allowing him to directly

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manage his Cabinet members in virtually every aspect of their authority.

      Finally, with respect to the third McCrory factor, members of the Governor’s

Cabinet “serve at the Governor’s pleasure,” id. § 143B-9(a), meaning that the

Governor may remove them for any reason or for no reason at all. If a Cabinet

member’s performance does not conform to the Governor’s wishes, the Governor may

remove him or her. If a Cabinet member acts too slowly to implement the Governor’s

policies, the Governor may remove him or her. If the Governor decides to change

directions in a given policy area and the corresponding Cabinet member is not willing

to be flexible, the Governor may remove him or her. In other words, the Governor

retains plenary authority to remove the members of his Cabinet. With that authority,

he may prevent any member of his Cabinet from refusing to properly implement his

preferred policies.

      In light of the Governor’s broad power to supervise and remove his Cabinet

members, and in light of the open universe from which the Governor may select his

Cabinet nominees, the confirmation power gives the Senate little ability to determine

who will be executing the law or how they will do so. Once confirmed, Cabinet

members are—to the extent that they are subject to control by another government

official—subject to complete control by the Governor. It follows that any effort by the

Senate to block one qualified nominee in the hopes that the Governor would then

nominate someone who shares the views and priorities of a majority of senators

(assuming that the views and priorities of a majority of senators differ from those of

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                                      Opinion of the Court



the Governor) would likely be futile. Thus, although the Governor does not have sole

appointment power under subsection 143B-9(a), he has immense influence over who

serves in his Cabinet and over what his Cabinet members do. More fundamentally,

he retains enough control over the members of his Cabinet to take care that the laws

be faithfully executed.

      Applying these factors to the statutory scheme as a whole, we hold that

senatorial     confirmation    of    the     Governor’s      Cabinet   nominees     does    not

unconstitutionally impede the Governor’s ability to take care that the laws be

faithfully executed.

                                               III

      Plaintiff makes four additional arguments to support his contention that

senatorial confirmation of Cabinet members is unconstitutional. Although these

arguments deal with many of the same concepts as separation-of-powers-clause

challenges do, they do not themselves arise out of the separation of powers clause.

Instead, they purport to use methods of constitutional construction, or methods of

construction    that   apply    to   legal     texts   more     broadly,   to   establish   the

unconstitutionality of subsection 143B-9(a)’s appointments process.

      Each argument revolves, in one way or another, around two constitutional

provisions that specify some form of legislative confirmation of gubernatorial

appointees.      First, plaintiff cites the appointments clause, which requires


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                                       Opinion of the Court



constitutional officers whose appointments are not otherwise provided for by the

constitution to be nominated by the Governor and confirmed by a majority of the

Senate. N.C. Const. art. III, § 5(8); McCrory, 368 N.C. at 644, 781 S.E.2d at 255.

Second, he cites Article IX, Section 4(1), which states that “eleven members” of the

State Board of Education shall be “appointed by the Governor, subject to confirmation

by the General Assembly in joint session.”6

       Plaintiff argues, based on these two provisions, that senatorial confirmation of

members of the Governor’s Cabinet is unconstitutional based on the canon of

expressio unius est exclusio alterius. Plaintiff essentially claims that, because the

constitution twice mentions some form of legislative confirmation for certain

constitutional officers but fails to require any form of legislative confirmation for

statutory officers, the constitution implicitly prohibits the General Assembly from

requiring legislative confirmation of statutory officers.

       “Under the doctrine of expressio unius est exclusio alterius, when a statute lists

the situations to which it applies, it implies the exclusion of situations not contained

in the list.” Evans v. Diaz, 333 N.C. 774, 779-80, 430 S.E.2d 244, 247 (1993) (citing


       6 To the extent that plaintiff asserts in his reply brief that “the power of appointment
is an executive power,” this premise directly conflicts with our prior decisions. The power of
appointment is not inherently executive, see Cunningham v. Sprinkle, 124 N.C. 638, 643, 33
S.E. 138, 139 (1899) (“[T]he election of officers is not an executive, legislative or judicial
power, but only a mode of filling the offices created by law . . . .”), and therefore is not an
“executive power of the State . . . vested in the Governor” by Article III, Section 1 of our state
constitution. See, e.g., McCrory, 368 N.C. at 648, 781 S.E.2d at 258 (first citing Cunningham,
124 N.C. at 643, 33 S.E. at 139; and then citing McIver, 72 N.C. 76, 85).

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                                   Opinion of the Court



Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 732, 407 S.E.2d 819, 822 (1991)).

“The canon depends on identifying a series of two or more terms or things that should

be understood to go hand in hand, which is abridged in circumstances supporting a

sensible inference that the term left out must have been meant to be excluded.”

Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 81, 122 S. Ct. 2045, 2050 (2002). In

other words, sometimes a provision is written (or a set of provisions are written) in

such a way that a reasonable negative inference can and should be drawn. See, e.g.,

Jennings v. Rodriguez, ___ U.S. ___, ___, 138 S. Ct. 830, 844 (2018). Because the

application of the expressio unius canon “depends so much on context,” however, “it

must be applied with great caution.” Antonin Scalia & Bryan Garner, Reading Law

107 (2012).

      Context significantly limits the application of this canon in cases like this one,

in which the scope of the General Assembly’s power is at issue.           “[O]ur State

Constitution is not a grant of power. All power which is not expressly limited by the

people in our State Constitution remains with the people, and an act of the people

through their representatives in the legislature is valid unless prohibited by that

Constitution.” State ex rel. Martin v. Preston, 325 N.C. 438, 448-49, 385 S.E.2d 473,

478 (1989) (citation omitted) (first citing McIntyre v. Clarkson, 254 N.C. 510, 515, 119

S.E.2d 888, 891 (1961); then citing Lassiter v. Northampton Cty. Bd. of Elections, 248

N.C. 102, 112, 102 S.E.2d 853, 861 (1958), aff’d, 360 U.S. 45, 79 S. Ct. 985 (1959); and

then citing Greensboro-High Point Airport Auth. v. Johnson, 226 N.C. 1, 8, 36 S.E.2d

                                          -20-
                                    COOPER V. BERGER

                                     Opinion of the Court



803, 809 (1946)).7 “Unless the Constitution expressly or by necessary implication

restricts the actions of the legislative branch, the General Assembly is free to

implement legislation as long as that legislation does not offend some specific

constitutional provision.” Baker, 330 N.C. at 338-39, 410 S.E.2d at 891-92; see id. at

343, 410 S.E.2d at 896 (Mitchell, J., dissenting) (asserting that the expressio unius

canon “should not be applied blindly in cases of state constitutional interpretation”).

In the context of finding limitations on the General Assembly’s power, therefore, the

constitution must necessarily imply any reasonable negative inference if we are to

draw that inference through the use of the expressio unius canon.

       The two provisions in question here do have a necessary implication, but not

one that limits the General Assembly’s power. The necessary inference to be drawn

from the fact that the constitution requires some form of legislative confirmation as

to certain constitutional officers—but stays silent on the method of selection of

statutory officers—is that the constitution does not require some form of legislative

confirmation as to statutory officers. That is essentially what we held in McCrory.



       7 This is a fundamental distinction between our state and federal constitutions. The
Constitution of the United States is a grant of power to the federal government—that is, the
federal government can act only in ways permitted by the Constitution. See, e.g., McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819) (stating that the federal government “is
acknowledged by all to be one of enumerated powers” that “can exercise only the powers
granted to it”). Our state constitution, by contrast, functions in the opposite manner—that
is, the General Assembly is generally free to act unless prohibited by our constitution. See,
e.g., State ex rel. Ewart v. Jones, 116 N.C. 570, 570-71, 21 S.E. 787, 787 (1895) (“The only
limitation upon [the General Assembly’s] power is found in the organic law, as declared by
the delegates of the people in convention assembled from time to time.”).

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                                       Opinion of the Court



In saying that the appointments clause, standing alone, does not prohibit the General

Assembly from giving itself the power to appoint certain statutory officers outright,

we were saying that the appointments process did not have to conform to the

processes specified in the two constitutional provisions in question. See McCrory, 368

N.C. at 644, 781 S.E.2d at 255. In other words, the reasonable inference to be drawn

from the constitution’s failure to specify how statutory officers are to be appointed or

otherwise selected is that the constitution simply leaves this matter to be determined

by the political process.

       We reached a similar decision in In re Spivey, where we addressed the

respondent’s     argument      that,    because      district   attorneys   are   “independent

constitutional officer[s],” they can be removed only by impeachment. In re Spivey,

345 N.C. 404, 410, 480 S.E.2d 693, 696 (1997). We used the expressio unius canon8

to hold that, because the constitution and an arguably pertinent statute “expressly

provide[d] that most constitutional officers are removable by impeachment” but did

not “provide[ ] that district attorneys are subject to removal by impeachment,”

neither the constitution nor the statute subjected district attorneys to removal by

impeachment. Id. at 412, 480 S.E.2d at 697. Spivey therefore construed the absence

of a method of removal that is stated elsewhere in the constitution to mean that the


       8 In Spivey, we called the expressio unius canon by its alternative name—“inclusio
unius est exclusio alterius (inclusion of one is exclusion of another),” id. at 412, 480 S.E.2d at
697; see also Scalia & Garner, at 107 (explaining that expressio unius and inclusion unius are
interchangeable names for the same interpretive canon).

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                                  COOPER V. BERGER

                                   Opinion of the Court



constitution does not require that method of removal where it is absent. That is

precisely analogous to how we construe the constitutional provisions that plaintiff

raises here: the absence of a legislative confirmation requirement elsewhere in the

constitution means that the constitution does not require statutory officers to be

confirmed by the legislature. Nothing more, nothing less.

      In contrast, plaintiff suggests that, when the constitution requires a process in

one circumstance, it implicitly prohibits that process from being used in all other

circumstances.    But if we drew that inference, plaintiff’s argument would be

self-defeating. After all, the constitution delegates to the Governor the power to

nominate or appoint a number of constitutional officers—in these two provisions and

in others. See also, e.g., N.C. Const. art. III, § 7(3) (granting the Governor the power

to fill vacant offices in the Council of State); id. art. IV, § 19 (granting the Governor

the power to fill vacant Article IV offices unless another process is constitutionally

specified). As with the two provisions that give the General Assembly some form of

confirmation power over constitutional officers, these provisions give the Governor

the power to nominate or appoint constitutional officers.             But, just as no

constitutional provision gives the General Assembly the power to confirm statutory

officers, no constitutional provision gives the Governor the power to nominate or

appoint statutory officers. Thus, applying plaintiff’s suggested interpretation, it

would follow that the Governor could not nominate or appoint statutory officers. This

does not follow, however, and the constitution permits, but does not require, the

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                                   Opinion of the Court



Governor to be able to nominate and appoint statutory officers. It likewise permits,

but does not require, the General Assembly to be able to confirm statutory officers.

      In so concluding, we acknowledge that plaintiff cites several cases from our

sister states in support of his expressio unius argument. But using out-of-state cases

as persuasive authority in interpreting our own constitution can be ill-advised; each

state constitution has its own unique history of development, both in terms of the

constitutional text itself and of the judiciary’s interpretation of that text. See, e.g.,

McCrory, 368 N.C. at 640-44, 781 S.E.2d at 253-55 (discussing the history of the

appointment power in North Carolina with reference to a number of state-specific

constitutional ratifications and amendments); Rampton v. Barlow, 464 P.2d 378, 379

(Utah 1970) (discussing the connection between the Constitution of Utah and the

Organic Act creating the Territory of Utah). The opinions that plaintiff cites from

Alaska and Utah are a case in point. They stand only for the proposition that, when

the appointment power is an executive power, the legislature may not confirm

gubernatorial appointees unless the state constitution expressly permits it to do so.

See Bradner v. Hammond, 553 P.2d 1, 7 (Alaska 1976) (“[U]nder Alaska’s constitution

the appointment of subordinate executive officers by the governor is an executive

function . . . .”); Matheson v. Ferry, 657 P.2d 240, 245 (Utah 1982) (Stewart, J.,

concurring). But as we have already discussed, our courts have long held that the

appointment power in North Carolina is “not an executive, legislative or judicial

power, but only a mode of filling the offices created by law.” Cunningham, 124 N.C.

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                                       Opinion of the Court



at 643, 33 S.E. at 139; see also McCrory, 368 N.C. at 648, 781 S.E.2d at 258

(“[A]ppointing statutory officers is not an exclusively executive prerogative.”).9 Thus,

these opinions reach a different result than we do because they rest on a different

premise that arises from different texts and histories.

       In declining to adopt plaintiff’s application of the expressio unius canon, we do

not, as he suggests, render superfluous the language of the two constitutional


       9  Though the states are not unanimous in this view of the appointment power, North
Carolina is hardly an outlier in this respect. This theory of the appointment power is long
established and remains the law both here and in a number of other jurisdictions. See, e.g.,
Clinton v. Clinton, 305 Ark. 585, 590, 810 S.W.2d 923, 926 (1991) (reaffirming “that there
was no inherent appointment power in the Governor” (emphasis omitted) (citing Cox v. State,
72 Ark. 94, 78 S.W. 756 (1904))); Marine Forests Soc’y v. Cal. Coastal Comm’n, 36 Cal. 4th 1,
34, 113 P.3d 1062, 1080 (2005) (reaffirming the principle that “[t]he power to fill an office is
political, and this power is exercised in common by the Legislatures, the Governors, and other
executive officers, of every State in the Union, unless it has been expressly withdrawn, by
the organic law of the State” (quoting People ex rel. Aylett v. Langdon, 8 Cal. 1, 16 (1857)));
Stroger v. Reg’l Transp. Auth., 201 Ill. 2d 508, 527, 778 N.E.2d 683, 694 (2002) (reaffirming
the principle that “[t]he power to appoint to office is not inherent in the executive department
unless conferred by the constitution or the legislature” and that “[t]he creation of officers, the
delegation and regulation of the powers and duties of officers and the prescribing of the
manner of their appointment or election are legislative functions, which are restrained only
by the Constitution” (quoting People ex rel. Gullett v. McCullough, 254 Ill. 9, 16, 98 N.E. 156,
158 (1912))); Schisler v. State, 394 Md. 519, 584, 907 A.2d 175, 213-14 (2006) (explaining
“that the Legislature can by express provision in a prospective statute commit the
appointment process to entities other than the Executive,” reaffirming that court’s earlier
holding in Mayor of Baltimore v. State, 15 Md. 376, 455 (1860)); State ex rel. Clarke v. Irwin,
5 Nev. 111, 127 (1869) (stating that, “[i]n the Constitution of the State of Nevada, the
appointing power of the Legislature is neither cut up by the roots, nor in any manner
hampered, save where the Constitution itself . . . provides for filling a vacancy”); Richardson
v. Young, 122 Tenn. 471, 515-16, 125 S.W. 664, 674 (1909) (“We have no difficulty in coming
to the conclusion that [the appointment] power, under the constitution of this State, is not an
executive function, inherently in the executive department when not otherwise expressly
vested, but a political power, which, consistently with the distribution of powers of
government, may properly be vested in either the legislative, executive, or judicial
departments by the general assembly.”).

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                                  Opinion of the Court



provisions that require some form of legislative confirmation.          Consider the

appointments clause: “The Governor shall nominate and by and with the advice and

consent of a majority of the Senators appoint all officers whose appointments are not

otherwise provided for.” N.C. Const. art. III, § 5(8) (emphasis added). If one were to

remove the language that we have italicized, the Governor is left with the complete

power to “nominate and appoint” constitutional officers—a power that is not subject

to any form of legislative confirmation. Alternatively, if one were to remove the

italicized language plus the word “and” before it and the word “appoint” after it, the

appointments clause would be incomplete; it would describe only how constitutional

officers “whose appointments are not otherwise provided for” are to be nominated, not

how they are to be appointed.       Either way, removing the language requiring

senatorial confirmation would alter the meaning of the appointments clause. Thus,

that language is not superfluous, even if one rejects plaintiff’s expressio unius

argument.

      So too with the Board of Education provision. If one were to remove the

confirmation requirement from Article IX, Section 4(1), the clause in question would

simply provide for “eleven members” of that Board to be “appointed by the

Governor”—full stop. That too would morph the Governor’s appointment power from

one that is subject to legislative confirmation to one that is not, even accepting our

application of the expressio unius canon. As a result, the legislative confirmation

language in this provision is also not superfluous.

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                                   Opinion of the Court



      Next, quoting the report of the North Carolina Study Commission that drafted

our current constitution, plaintiff argues that—because our constitution restricts,

rather than enumerates, the General Assembly’s power—a constitutional provision

that “may appear in form to be a grant of authority to the General Assembly to act

on a particular matter normally is in legal effect a limitation, not a grant.” Report of

the North Carolina State Constitution Study Commission 2 (1968). In light of the rule

expressed in this statement, plaintiff concludes that the two provisions of the

constitution that confer confirmation capability on the General Assembly show that

the General Assembly has no general power to confirm.             Accordingly, plaintiff

maintains, these provisions must actually limit the General Assembly’s ability to

confirm to the two constitutionally specified instances.

      We do not have to decide, and do not decide, whether the statement from the

Commission report that plaintiff quotes is accurate. It is enough to say that its use

of the word “normally” permits exceptions to its purported rule, and that, even if that

rule is correct, the two constitutional provisions in question would both qualify as

exceptions to it. The grant of power to the General Assembly in those provisions must

be viewed hand-in-hand with the power that those provisions grant to the Governor.

When viewed in this way, it is easy see that, when the constitution creates

appointments processes in which both the General Assembly and the Governor have

a role, it needs to specify the power of both actors in those processes. That is all that

the constitution has done here.        Accordingly, those provisions specifying the

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                                  Opinion of the Court



appointments processes of constitutional officers should not be read as limitations on

the General Assembly as to the appointments of statutory officers.

      Finally, plaintiff takes issue with the language of subsection 143B-9(a) that

requires Cabinet members to be confirmed “in conformance with” the appointments

clause.   He claims that, because the appointments clause applies only to

constitutional officers, the appointments clause cannot “authorize” the General

Assembly to require senatorial confirmation of Cabinet members.

      But, as plaintiff concedes, our constitution does not enumerate the powers of

the General Assembly. As we have already mentioned, unlike the powers of Congress

in the federal model, the General Assembly has the power to legislate on all matters

unless the constitution prohibits it from doing so. See McIntyre, 254 N.C. at 515, 119

S.E.2d at 891 (“All power which is not limited by the Constitution inheres in the

people, and an act of a State legislature is legal when the Constitution contains no

prohibition against it.”); see also Pope v. Easley, 354 N.C. 544, 546, 556 S.E.2d 265,

267 (2001) (per curiam) (“[T]he power [that] remains with the people . . . is exercised

through the General Assembly . . . .”). Thus, the General Assembly need not identify

the constitutional source of its power when it enacts statutes.      In fact, in most

instances, there will be no particular grant of constitutional authority on which the

General Assembly will rely. It will instead rely on its general power to legislate,

which it retains as an arm of the people.



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                                    Opinion of the Court



      Plaintiff’s argument therefore makes sense only in conjunction with one or

more of his earlier arguments that the constitution implicitly limits the General

Assembly’s legislative confirmation power to the two instances enumerated in the

appointments clause and in Article IX, Section 4(1). His argument is predicated, in

other words, on the theory that the constitution elsewhere limits the General

Assembly’s authority to confirm executive officers, which would then require express

constitutional authorization for the General Assembly to be able to call for senatorial

confirmation in this instance. Because plaintiff’s earlier arguments are unavailing,

though, this argument is as well.

      Notably, under our analysis, subsection 143B-9(a) would still be constitutional

even if the General Assembly had mistakenly intended the “in conformance with”

phrase to identify the constitutional source of its authority. The General Assembly

would still in fact have the authority to enact this statutory provision as long as its

enactment was not otherwise prohibited by the constitution—which it is not. And we

would therefore uphold the statute as a valid exercise of that authority—even if the

General Assembly had not properly identified the source of its authority.

      But it is also worth noting that the “in conformance with” language does not

appear to be intended to provide constitutional authority for the General Assembly’s

enactment anyway. McCrory clearly holds that the appointments clause refers only

to constitutional officers, not to statutory ones. See 368 N.C. at 644, 781 S.E.2d at

255. We have long held that “[t]he Legislature is presumed to know the law.” Purnell

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                                   Opinion of the Court



v. Page, 133 N.C. 125, 130, 45 S.E. 534, 536 (1903). And it is undisputed that the

General Assembly added the senatorial confirmation language to subsection

143B-9(a) after we handed down McCrory. We therefore presume that the General

Assembly knew that the appointments clause could not be the source of its authority

to require senatorial confirmation of Cabinet members. The best reading of the “in

conformance with” language, then, is that it does not provide the source of the General

Assembly’s constitutional authority; rather, it simply requires that the appointments

process for Cabinet members mirror the process recited in the appointments clause.

After all, if one removes the phrase “in conformance with Section 5(8) of Article III of

the North Carolina Constitution” from subsection 143B-9(a), the statute would fail to

tell us how many senators must consent in order to confirm the Governor’s

appointees. By including that language, the statute appears to be telling us that a

majority of senators must consent in order for a Cabinet member to be confirmed.

      Because none of plaintiff’s arguments about how to properly construe the two

legislative confirmation provisions in the constitution are convincing, these

arguments do not give us any basis on which to hold the senatorial confirmation

provision in subsection 143B-9(a) unconstitutional.

      It has long been the practice of the General Assembly, moreover, to require

confirmation of certain gubernatorial nominees to statutory offices. See, e.g., An Act

of March 8, 1941, ch. 97, sec. 2, 1943 N.C. Pub. [Sess.] Laws 151, 151 (codified as

amended at N.C.G.S. § 62-10(a) (2017 & Supp. 2018)) (requiring legislative

                                          -30-
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                                   Opinion of the Court



confirmation of gubernatorial nominees for the North Carolina Utilities Commission);

see also Current Operations and Capital Improvements Appropriations Act of 2014,

ch. 100, sec. 18B.6, 2013 N.C. Sess. Laws (Reg. Sess. 2014) 328, 539 (codified as

amended at N.C.G.S. § 7A-45.1(a10) (2017)) (requiring legislative confirmation of

gubernatorial nominees for special superior court judgeships); Protecting and Putting

North Carolina Back to Work Act, ch. 287, sec. 17, 2011 N.C. Sess. Laws 1087, 1099

(codified as amended at N.C.G.S. § 97-77(a), (a1) (2017 & Supp. 2018)) (requiring

legislative confirmation of gubernatorial nominees for the North Carolina Industrial

Commission). Because these appointments processes are consistent with the

demands of the constitution, “it is entirely within the power of the Legislature to deal

with [statutory officers] as public policy may suggest and public interest may

demand.” N.C. State Bd. of Educ. v. State, ___ N.C. ___, ___, 815 S.E.2d 67, 74 (2018)

(quoting Mial v. Ellington, 134 N.C. 131, 162, 46 S.E. 961, 971 (1903)).

                                       *    *     *

      The separation of powers clause safeguards the Governor’s ability to have

enough control over his Cabinet members to perform his duty under the take care

clause.   Because Cabinet members play such a critical role in executive branch

functions, the Governor’s control over them must be significant. Here, however, the

Governor has unfettered power to nominate any eligible individual to serve in his

Cabinet, has significant supervisory power over his Cabinet members, and has the

power to remove Cabinet members at will. The constitution, moreover, does not

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                                  Opinion of the Court



otherwise prohibit the General Assembly from requiring senatorial confirmation of

members of the Governor’s Cabinet. As a result, the appointments provision of

subsection 143B-9(a) withstands plaintiff’s facial constitutional challenge.   We

therefore affirm the decision of the Court of Appeals.

      AFFIRMED.




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