NFIB Legal Center Defends Regulatory Reform Efforts in North Carolina

Date: May 07, 2015

NFIB Legal Center Defends Regulatory Reform Efforts in North Carolina

This week, the NFIB Small Business Legal Center filed an amici curiae brief in defense of
regulatory reform efforts in North Carolina. The case, McCrory v. Berger, pits the Governor’s office against the
Legislature, and is to be heard in the coming months in the State Supreme
Court. We weighed in, along with other industry groups, in support of the
Legislature because the Governor’s position calls into question regulatory
reforms from the 1990s that were designed to guard against unduly burdensome,
or aggressive, interpretations of state statutes.

 

The case asks the question of whether, under the NC
Constitution, it is permissible for the Legislature to appoint commissioners to
boards and state agencies. Governor Pat McCrory and several former Governors
have taken issue with the practice, though there is a long history of
legislative appointments to state boards and commissions in North Carolina. And
as we argue in our brief, the NC Constitution (unlike the federal Constitution)
permits such legislative appointments by its plain terms.

 

Our specific interest in the case is in its implications for the
fate of the NC Rules Review Commission, which is comprised of appointments from
the Legislature. The Rules Review Commission is charged with reviewing all
proposed regulations in North Carolina. A regulation does not become effective
in North Carolina—and therefore cannot impact small business—unless the RRC
gives its stamp of approval. And RRC will only do so once it determines, as
required by statute, that: (1) the rule is within the statutory authority
delegated to the agency by the General Assembly; (2) the rule is clear and
unambiguous; and (3) the rule is reasonably necessary to fulfil a duty
delegated to the agency by the General Assembly.

 

Our concern is that the RRC will become a rubber-stamp for the Executive
Branch if the Governor alone is allowed to make appointments. As it currently
functions, the RRC is an effective check on efforts, on the part of NC’s
Executive Branch, to expand their statutory authorities through creative
interpretations of state law. But if the Governor alone is empowered to appoint
RRC commissioners, it is more likely the RRC will approve regulations that we
would take issue with. And though the current Governor may be a friend to small
business, the concern is that a future Governor may not be so friendly. We
maintain that it is important to protect the independence of the RRC as a check
on the Executive Branch, and a bulwark against over-regulation in the Tar Heel
State.

 

For more on the case,
the Raleigh News and Observer, the Charlotte Observer and WRLA provide insightful
analysis.

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