Saturday, May 16, a US District Court judge ruled Gov. Roy Cooper’s stay-at-home order regarding religious services unconstitutional, and it appears there are other legal issues with the executive orders coming from Cooper that may be raised.
For instance, before the order went out at 2 p.m. on March 17 closing all bars and dine-in restaurants in the state at 5 p.m., Cooper did not get concurrence from the Council of State as is required by state statute.
The Emergency Management Act, which gives the governor a great deal of additional power during a state of emergency, doesn’t give the governor unlimited power, and to take action such as closing down businesses and putting hundreds of thousands of people out of work, the law requires the governor to get concurrence from the Council of State. Cooper was evidently aware of this because he asked the Council of State to concur with his order shortly before it was issued.
The Council of State, which is made up of the 10 state officials elected statewide, was consulted, but it did not concur with the order. At 12:41 p.m., March 17, the members of the Council of State were contacted by email and given 30 minutes to concur with the proposed executive order.
Cooper was requesting not only an extremely quick decision on closing down thousands of small businesses across the state, but the members of the Council of State were not even provided with copies of the proposed executive order. Council of State members were being asked to make a decision that would have a disastrous effect on small business owners and put hundreds of thousands of people out of work without the knowledge of how it would be done.
Far from concurrence, five of the 10 members of the Council of State by email stated that they did not concur with the action.
The 12:41 p.m. email to Council of State members listed two actions the governor planned to take: #1 had to do with unemployment and #2 with closing bars and dine-in restaurants.
Lieutenant Governor Dan Forest replied to the email with a question: “In #2 are you asking for concurrence in something the Governor has already announced?”
Cooper had earlier announced his plan to close bars and dine-in restaurants but had scheduled a 2 p.m. press conference to make the official announcement.
In a later email Forest went into more detail, ending with this sentence: “I do not concur in request number 2.”
Insurance Commissioner Mike Causey responded, “I feel this needs further discussion.” And in a later email stated, “I do not concur on #2.”
State Treasurer Dale Folwell responded, “On item #2, it should highly encourage these limitations on operations, NOT mandate them.”
Commission of Agriculture Steve Troxler responded, “As to #2, I do not concur.”
Superintendent of Public Instruction Mark Johnson responded, “Do not concur with 2.”
Attorney General Josh Stein and Secretary of State Elaine Marshal both responded they concurred, which leaves the vote on #2 with three, including Cooper, in favor and five opposed.
According to the email thread released by Forest, Commission of Labor Cherie Berry and State Auditor Beth Wood did not respond by email.
If the order were challenged in court, a judge would have to decide if three out of 10 members constitutes concurrence.