Shall We Dance? Dancing on the Line of Constitutionality: The Rules Review Commission and the North Carolina Administrative Procedures Act

Abstract

The North Carolina Administrative Procedures Act (“APA”), first enacted in 1973, establishes a uniform system of administrative rulemaking and adjudicatory procedures for agencies. The purpose of the APA is to ensure that the functions of rulemaking, investigation, advocacy and adjudication are not all performed by the same person in the administrative process. The APA is applicable to every agency of the State. As used throughout the APA, “agency” is a term of art, defined as “an agency or an officer in the executive branch of the government of this State and includes the Council of State, the Governor’s Office, a board, a commission, a department, a division, a council, and any other unit of government in the executive branch.” In 1985, the General Assembly created an agency that plays a substantial role in rulemaking under the APA – the Rules Review Commission (“RRC”), an agency created within the Office of the Governor consisting of a ten-member panel for the purpose of reviewing temporary and permanent rules adopted by other agencies. The exact nature of the RRC – executive or independent agency – is a question about which there appears to be some conflict and no firmly established resolution. The constitutionality of the RRC and its role in the rulemaking process has been a question since its inception. North Carolina’s appellate courts have been presented with an opportunity on two separation occasions to address the question of the RRC’s constitutionality, yet the question remains unanswered and the RRC has been allowed to participate in the rulemaking function with the powers granted by the General Assembly. If squarely confronted with the question of the constitutionality of the RRC, there are two legitimate bases upon which the North Carolina Supreme Court could determine the RRC is unconstitutional: 1) to the extent the General Assembly reserved unto itself the power to remove members of executive commissions, the RRC members may be denied the ability to exercise executive authority because to do so would violate the separation of powers; and 2) establishment of the RRC is contrary to the rationale of the non-delegation doctrine. The bases to support a conclusion that the RRC is unconstitutional is demonstrated by analysis of the North Carolina Constitution, statutes, judicial decisions, and other relevant authority. First, full exposition of the rulemaking process set forth in the APA is undertaken, followed by an overview of the history leading up to creation of the current RRC, including the constitutional concerns and challenges that have been raised regarding the RRC. Next, this paper seeks to identify the nature of the RRC as an executive or independent agency by analyzing the organic statute establishing the RCC and comparison to its federal counterpart – Office of Information and Regulatory Affairs – and a similar entity contemplated by the 1981 Model State Administrative Procedures Act. Finally, an analysis of various aspects of the RRC under the Separation of Powers mandate set forth in Article I, Section 6 of the North Carolina Constitution is undertaken with specific analysis of the appointments power, the removal power, the non-delegation doctrine, and the special instrumentality rule.