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You Haven't Got Mail
I’m checking the inbox regularly in a high-stakes letter exchange. The latest response from the executive branch is overdue. That bodes ill.
The topic is the governor’s efforts to create a new Department of Agriculture. He tried to do that by executive order this last session, but the legislature rejected it. Like a lot of my colleagues, I think our state should do more ag work, and disagreed with Governor Dunleavy’s deep cuts to the division in his first term. But the executive order came with a high price tag for new administrators without a clear benefit for Alaska. The governor’s prior executive order splitting the Department of Health and Social Services in two wasn’t exactly a swimming success, either.
So in March we told the governor we wanted to approach the issue through legislation. Establishing the department through law lets us ask questions, consider public input, and make changes to set the whole thing up for success.
When the governor called us into special session this summer all the focus was on education funding and the audit bill. But remember: the governor put two items on the special session agenda: education and a Department of Agriculture. He issued a nearly identical executive order to the one we’d just rejected.
That’s not ok. If a governor can call a special session to ram through an executive order, that cuts out legislative oversight from significant (and often expensive) government reorganizations.
But most importantly, it’s unconstitutional. Article III, Section 23 says “The legislature shall have sixty days of a regular session, or a full session if of shorter duration, to disapprove these executive orders.” The plain reading clearly says executive orders are during regular session. To back that up, the minutes of the constitutional convention show this is what the framers meant. The language about “shorter duration” was in case a regular session; only later 45 or 50 days, which could happen in Territorial days. Plus, every place the constitution contemplates a special session, it uses the phrase. It would be super weird for special sessions to be included in the executive order rule without being mentioned.
The presiding officers of the House and Senate wrote and asked the governor to withdraw the executive order. He declined, saying in a letter he’ll consider it validly enacted if the legislature does not disapprove it during the special session that ends this weekend. The presiding officers then wrote reminding him of the constitution’s language. They asked him, if he wasn’t going to follow the words on the page, for a written opinion by the attorney general explaining why and how the thinks that works.
The next thing to come out in public involving the attorney general was the news he is resigning. That doesn’t bode well for getting that AG Opinion…
This is a big deal. The Alaska Constitution splits up power between branches of government pretty strictly. Letting a governor change some laws by executive order is a special exception that lets a governor use some legislative authority. The framers put very tight limits on that: a governor can only do it to reorganize the executive branch, and the legislature gets 60 days of a regular session to disapprove it.
There’s actually a great example that runs the other way here. The legislature’s power to confirm or deny appointees like commissioners or members of the Board of Fish involves us in the hiring and firing power that is otherwise executive. Every time I can think of where the legislature has tried to widen how much say it has, Alaska courts have said no, and held them to no more than what the constitution says the legislature can do on the executive’s turf. I strongly suspect they’ll do the same when it comes to the governor’s ability to rewrite laws by executive order.
Legislative oversight matters. The constitutional framers knew it. If the governor acts on the executive order this fall, we’ll almost certainly end up in court.
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