As I have discussed, Governor Bev Perdue issued an executive order creating a commission made up of special interests and political and partisan insiders to identify three potential judges, one of whom the governor is required to nominate, when a judicial vacancy occurs.

Is this executive order constitutional? It isn't a simple issue, but I believe the order is unconstitutional.

The governor's power to fill judicial vacancies is an express executive power granted to the governor under the North Carolina Constitution (Article IV, Section 19). The governor can't delegate away express power, and this point, which I believe to be noncontroversial, is supported by case law (see, e.g., Bacon v. Lee). In the Bacon case, which dealt with clemency power, the North Carolina Supreme Court discussed whether this exclusive executive power can be delegated away.

Citing the Public Papers of Gov. Terry Sanford, "To decide when and where such mercy should be extended is a decision which must be made by the Executive. It cannot be delegated even in part to anyone else, and the Executive. thus the decision is a lonely one."

The only question is not whether executive power can be delegated away, but whether executive power was improperly delegated away through this executive order. In my view, only two arguments can be made in favor of the constitutionality of the executive order. First, since the executive order can be rescinded by the governor at any time, the governor is not bound by it. Second, the commission makes only recommendations of three potential judges, not the actual final decision upon whom the governor nominates, but.

These arguments, or something similar, were made by the Massachusetts Supreme Court in a 1975 advisory opinion it wrote regarding a comparable executive order.

1) Executive Order Argument

An executive order isn't an internal memo or an informal document. It has the force of law (see, e.g., Article 3, Section 5 addressing executive orders regarding executive administration) and is binding on the present governor and also on future governors. While the executive order can be revoked by Gov. Perdue, she is acting pursuant to its terms so long as the executive order is in effect.

Suppose an executive order stated the governor may nominate only Catholic judges. Would it be constitutional simply because the executive order could be revoked? To a lesser extreme and closer to the judicial vacancy issue, what if the executive order stated that the governor was required to nominate the candidate selected by the North Carolina Bar Association? Would that be constitutional since the governor could revoke the executive order?

I think it is pretty clear that the answer is no. It may be true that these executive orders are unconstitutional on substantive grounds, but that's a different argument from whether they are constitutional simply because executive orders can be revoked.

Furthermore, agency rules can be repealed at any time. Legislation also can be repealed at any time as well. Are regulations and legislation, which otherwise would be deemed unconstitutional, considered constitutional because they can be repealed? The answer is no.

2) Required to Pick From Three Nominees

The executive order requires that the governor select a nominee from one of three candidates. If the commission could merely provide recommendations that the governor could ignore, there wouldn't be a legal issue.

Instead, the executive order gives unelected and unaccountable private parties (not even someone in government) the power to narrow down the judges among whom the governor may select from. The express power is severely diluted because she can't nominate anyone other than one of the three individuals chosen.

In many ways, the private parties have more power than the governor because at least they know that one of their three candidates must be nominated, whereas the governor could be stuck with three candidates that fail to meet her approval.

The private parties wouldn't be just influencing the process; in effect, they would be running it. The fact that the final "decision" regarding the candidates belongs to the governor doesn't negate the fact that she has delegated away a major part of her judicial appointment power, which constitutes the process of deciding whom will be appointed.

Getting Beyond the Realm of Legal Vacancy

To illustrate the point further, let's identify two more comparable situations in which the order's unconstitutional will appear more clearly:

1. The governor issues an executive order saying she is going to let special interest groups pick three bills, one of which she must veto.
   
   
2. The governor issues an executive order saying she's going to let special interest groups identify three prisoners, one of whom she must pardon.

In either case, would there be any doubt that the governor couldn't do it? This case with judicial powers is no different: the governor is giving away an express power in the same manner.

Conclusion

If Gov. Perdue decided to create some informal, behind-the-scene process that gave the same special-interest groups influence over her appointment decisions, there probably would not be a legal issue. What created the legal issue was her putting forth an executive order that gives away her executive power.

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