Howell v. Cooper: The North Carolina Supreme Court Broadens Direct State-Constitutional Remedies for Economic Restrictions in Public Emergencies

Introduction

In Howell v. Cooper (22 Aug 2025) the Supreme Court of North Carolina confronted the lingering legal aftershocks of the COVID-19 pandemic. A collection of bar owners and entertainment businesses alleged that Governor Roy Cooper’s executive orders—issued under the North Carolina Emergency Management Act (EMA)—unconstitutionally burdened their “fundamental right to earn a living” by forcing closures or severe operational limits. The State invoked sovereign immunity, insisting that the claims must be dismissed.

The Court, led by Chief Justice Newby, held that the plaintiffs had properly pleaded a Corum-type direct constitutional claim and that sovereign immunity therefore posed no bar to the suit. In doing so, the majority:

• Re-affirmed and extended the analytic framework announced in Kinsley v. Ace Speedway Racing, Ltd. (2024) and its companion decision N.C. Bar & Tavern Ass’n v. Stein (2025).
• Rejected the State’s invitation to impose a new “least-intrusive-remedy” pleading requirement.
• Signaled an expansive view of the Fruits of Their Own Labor Clause and the Law of the Land Clause when economic activity is curtailed by the State acting as regulator—especially during emergencies.

Justice Earls, joined by Justice Riggs, filed a vigorous dissent warning that the majority’s approach weaponises economic-liberty provisions, invites pervasive litigation, and “turns the judiciary into a Monday-morning quarterback” of executive crisis management.

Summary of the Judgment

1. The Court found the complaint satisfied the three prerequisites for a direct state-constitutional claim (“Corum claim”): (a) state action; (b) colourable constitutional wrong; (c) no adequate alternative remedy.
2. Applying Kinsley, the Court deemed the alleged interference with the bars’ ability to operate a sufficiently “heavy burden” on the fundamental right to earn a living to be colourable, thus defeating a Rule 12(b)(6) motion.
3. The State’s sovereign-immunity defence therefore failed at the pleading stage; the case returns to Superior Court for factual development on the merits.
4. The Court declined to add a fourth factor requiring plaintiffs to plead they sought the “least intrusive remedy,” holding that remedial tailoring is for the trial court after liability is shown.
5. The Court “modified and affirmed” the Court of Appeals, clarifying that the COA used the correct outcome but lacked the detailed Kinsley analysis.

Analysis

Precedents Cited and Their Influence

Each precedent scaffolds the Court’s reasoning. Corum removes sovereign-immunity barriers; Deminski supplies the three-part test; Kinsley supplies substantive standards; N.C. Bar & Tavern harmonises pandemic-order litigation; and Poor Richard’s/Ballance furnish the historical due-process/economic-liberty link.

Legal Reasoning

1. Pleading sufficiency & Notice theory.
   The Court emphasised North Carolina’s liberal notice-pleading regime (§1A-1, Rule 8). A plaintiff need not forecast evidence, only provide enough detail for the defendant to understand the claim and mount a defence. Accepting allegations as true, the complaint plausibly describes nine months of near-total shutdown or severe curtailment.
2. Colourability of constitutional harm.
   Invoking Kinsley, the Court held that shutting (or functionally shutting) an entire economic sector triggers heightened scrutiny: the State must show that closures were “reasonably necessary” to halt COVID transmission. The complaint, viewed favorably, alleges excessive measures divorced from efficacy—enough to survive Rule 12(b)(6).
3. No additional “least-intrusive-remedy” hurdle.
   The State argued plaintiffs had to plead pursuit of the least coercive relief. The Court refused, clarifying that remedy tailoring is a post-liability question. Requiring it at the front end would collapse Corum into qualified immunity-like complexity and resurrect the sovereign immunity barrier that Corum dismantled.

Impact of the Decision

• Expanded litigation window. Any business alleging severe economic impact from state regulation—especially emergency orders—now has a clearer path past Rule 12(b)(6) by framing Corum claims under the Fruits/Law-of-the-Land clauses.
• Increased executive-action risk. Governors and agencies must document contemporaneous evidence of reasonable necessity when imposing sector-specific restrictions—even during fast-moving crises—to withstand later judicial scrutiny.
• Preservation of Corum vitality. Howell cements Corum’s role as a backstop against statutory gaps, refusing to narrow it with procedural add-ons.
• Separation-of-powers tension. The dissent forewarns a return to Lochner-era judicial activism; courts may be drawn into complex cost-benefit analyses traditionally left to political branches.
• Future emergency legislation. The General Assembly may revisit the EMA to provide clearer standards and safe-harbour immunities, or to prescribe alternative remedies, in order to curb sprawling damages exposure.

Complex Concepts Simplified

Corum Claim

A lawsuit filed directly under the North Carolina Constitution when no statutory remedy exists, named after Corum v. UNC. It bypasses sovereign immunity if (1) state action, (2) colourable constitutional violation, and (3) no adequate alternative remedy are shown.

Sovereign Immunity

The doctrine that the State cannot be sued without its consent. Corum creates an important exception.

Fruits of Their Own Labor Clause (Art. I §1)

Guarantees individuals the right to the “enjoyment of the fruits of their own labor”—interpreted as a fundamental right to pursue a lawful occupation.

Law of the Land Clause (Art. I §19)

North Carolina’s counterpart to substantive due process, prohibiting arbitrary deprivation of life, liberty, or property.

Reasonably Necessary Test

The State must (a) act for a legitimate public purpose and (b) choose means that bear a reasonable, proportional relationship to that purpose—assessed through a fact-intensive balancing of public benefit and private burden.

Least Intrusive Remedy

A judicial principle counselling courts, post-liability, to fashion relief that vindicates rights without unnecessary interference in other branches’ functions. Howell holds it is not a pleading prerequisite.

Conclusion

Howell v. Cooper moves the jurisprudential needle in North Carolina by confirming that businesses heavily affected by emergency regulations may pursue direct constitutional damages actions against the State. The decision strengthens the Fruits of Their Own Labor Clause, clarifies the interplay between Kinsley and Corum, and rebuffs attempts to dilute constitutional claims with extra procedural burdens. Yet it also raises profound separation-of-powers questions and may herald intensified judicial review of executive public-health measures. Lawyers advising governmental clients must now incorporate Howell’s expanded liability landscape into emergency-order drafting, while plaintiff’s counsel have a sharpened blueprint for pleading economic-liberty lawsuits. Whether the courts will become, as the dissent fears, arbiters of complex policy trade-offs remains to be seen, but Howell undeniably reshapes the litigation terrain for state-imposed economic restrictions in North Carolina.