A three judge panel of the North Carolina Superior Court issued another temporary restraining order (“TRO”) temporarily blocking further legislative over-reach by the Republican controlled General Assembly.

Days after Roy Cooper officially won the North Carolina governorship, and after weeks of hearings related to unsubstantiated allegations of voter fraud by GOP legislators, the NC General Assembly attempted to limit the powers of the NC governor by legislative fiat.  The “Advice and Consent” amendment, passed on December 19, 2016 attempted to create a process, not otherwise present in the NC Constitution, that required advice and consent of the NCGA for cabinet nominees.  In other words, the NCGA wanted veto power over Cooper’s political appointments.

The statutory deadline for Governor Cooper to submit nominees to the President of the NC Senate, Phil Berger, under this legislation is May 15, 2017. However, in spite of this deadline, the Senate scheduled confirmation hearings between Wednesday February 8 and Thursday March 16, presumably as a hurry-up-offense strategy to hold hearings before the lawsuit could be decided. Larry Hall, the appointee for the Department of Military and Veterans Affairs, was scheduled for hearing today, February 8, 2017 at 11:00 a.m.

The court found that Governor Cooper’s claim that the law is unconstitutional had a high “likelihood of success on the merits.” It further held that it must stop the advice and consent hearings to preserve the status quo while the lawsuit proceeds. The court specifically found that Governor Cooper may select individuals to lead executive departments without advice and consent in order to facilitate the functioning of the government. If the legislation is ultimately found to be constitutional, those individuals can be vetted at that time.

This is a short term order that expires on Friday, February 10, 2017, when the court will hear full arguments and evidence on whether a longer term injunction is warranted.