Orders, Orders, Everywhere
Over the next few weeks, Juneau eighth graders will come through the Capitol as part of their civics education. I love talking to them about the fundamentals of their government. Based on the tough questions they ask, we've got a bunch of good citizens coming up behind us.
Don't feel left out! Courtesy of a dozen new Executive Orders by the governor dropped on our desks this week, you're about to get your very own personal class in the separation of powers and Article III, Sec. 23 of the Alaska Constitution. Don't say I never gave you anything.
Separation of powers means the courts, the legislature, and the executive have their own share of the work of government. And unless the constitution says so, the other branches can’t stick their nose in. For example, the constitution says the legislature sets the rules for how we do our business. That means the courts don't get to be our parliamentarians. On the executive side, the power to appoint commissioners to run departments belongs to the governor. The constitution says the legislature can confirm or deny those appointments, but once a department head is on the job, only the governor gets to direct their work or fire them.
You probably remember from your school days that the legislature writes the laws. Unless a governor vetoes a bill when something first gets written into statute, the executive doesn't have the power to rewrite it. But the Alaska constitution makes a limited exception. In Art. III, Sec. 23, it lets the governor "make changes in the organization of the executive branch... for efficient administration." And it says those changes can even tweak the statutes if necessary.
Doing that takes an executive order. And in the spirit of checks and balances, it gives the legislature a specific way to disapprove them.
This week the governor introduced a startling twelve executive orders. I've never heard of an Alaska governor doing so many all at once.
Some of them are interesting and might be good ideas. For instance, he proposes splitting the Alaska Energy Authority and Alaska Industrial Development and Export Authority boards of directors. I haven't dug into the details, but the idea of letting AIDEA focus on loans and AEA push energy initiatives seems intuitively pretty smart.
Other proposals raise my eyebrows. He wants to fully eliminate a number of boards and councils. Not to put too fine a point on it, the Alaska Council on Emergency Medical Services has expertise, local knowledge, and community connections the Department of Health just doesn't. Deleting the citizen volunteers who help the department with policy recommendations sounds unwise.
Still, whether those two things are good ideas or not, they seem to be within the governor's power to do by executive order. If we in the legislature don't like them, we have a way to disapprove them. Otherwise, they'll take effect.
Other orders raise serious constitutional questions. Close to home, the governor proposes eliminating the Chilkat Bald Eagle Preserve Advisory Council. His order would put all its duties with the Department of Natural Resources. As a policy matter, the council members have more expertise on Haines and local issues than the Department of Natural Resources can bring to the issues facing the preserve. The department just barely managed, after a very long vacancy, to again hire a ranger in Haines. And while that person may be a genius, the Division of Parks & Outdoor Recreation above him is still struggling. More importantly, the 1982 law creating the preserve gave the council specific duties and powers it didn't give the department. (Not everywhere, though. Other powers went to the department and not the council.)
So it's hard to see any way the Executive Order deleting the council is just about organization or efficiency. It changes substantive law in ways the constitution reserves for the legislature. I've asked Legislative Legal Services to take a serious look at whether the governor overstepped the separation of powers.
A handful of the orders would do away with regulatory boards and have the Department of Commerce oversee those professions instead. There's no way the badly understaffed department can handle applications faster or cheaper than the public service-minded volunteers who serve on those boards. I know several legislators have asked the attorneys whether deleting the boards doesn't also change more than "organization."
Then there’s the executive order on the ferry system advisory board. The governor doesn't propose eliminating it or changing the scope of expertise of the board members. He just wants to immediately end the terms of any members appointed by the Senate President and House Speaker to replace them with his own appointees. The lawyers are looking at this one, too. Who appoints advisory board members is hardly an efficiency question, after all.
I'll reserve final judgement until I've heard from the legal experts, but where the governor has stepped over the separation of powers, his orders belong in the recycle bin. Some of them may be just fine. And in a couple of cases, I think the legislature should seriously consider disapproving bad (albeit constitutionally allowed) ideas.
That's more detail than the middle schoolers get. But I figured you could handle it. One thing's for sure: we won't run short on civics lessons this session!
Oh, and thanks the the League of Women Voters of Juneau for organizing and helping fund the eighth grade visits!
