Did Governor Michael J. Dunleavy (R – Alaska) violate the doctrine of separation of powers when he vetoed $334,700 from the Alaska Court System’s budget in reaction to an Alaska Supreme Court ruling that struck down a state statute that limited state-funding for certain abortions? That is the legal issue at play in a case currently pending before Anchorage Superior Court Judge Jennifer Henderson in ACLU et al. v. Dunleavy, 3AN-19-08349.

That topic was widely discussed by attendees of the Federalist Society’s program entitled “Why Separation of Powers Matter” before the program kicked off at the Captain Cook Hotel in downtown Anchorage last Tuesday evening. The event was headlined by Professor Dr. John S. Baker and Alaska Attorney General Kevin Clarkson. The event was attended by roughly 60 people, who appeared to be mostly lawyers, politicians, and local business people. (Disclaimer: This writer is a member of the Federalist Society).

What is the Federalist Society? The Federalist Society is a relatively new but extremely influential legal organization. Founded in 1982 by law students at three law schools (Yale, Harvard, and the University of Chicago) who perceived that law schools were improperly dominated by liberal professors and curriculum, the Federalist Society’s first faculty advisers were Robert Bork and Antonin Scalia. It has grown to include student divisions on over 200 law school campuses. And as the Washington Post reported this year, its influence has never been stronger, with numerous members of the U.S. Supreme Court calling themselves former members and Justices participating in Federalist Society events. This increase in influence was accompanied by an opposition and criticism from those politically opposed to the Federalist Society’s mission. Here’s the Federalist Society’s website so you can decide for yourself whether you are critical, supportive, or neutral of its mission.

Back at the Anchorage event, attendees were played audio of Justice Scalia’s opening statements to the Senate Judiciary Committee in 2011, in which he saw a crucial link between the freedoms U.S. Citizens enjoy and separation of powers. Specifically, Scalia posed the question of what was unique in America’s governing documents that made it “such a free country”? Scalia believed that answer to be the U.S. Constitution’s unique separation of powers, which diffuses governmental power among three separate but equal branches of government (executive, legislative, and judiciary) and within each of those branches (for example, the federal legislature is bicameral, meaning the House and Senate both have to agree to enact legislation). Scalia famously rejected the Bill of Rights as what set the United States apart:

If you think that a bill of rights is what sets us apart, you’re crazy. Every Banana Republic in the world has a bill of rights. Every president for life has a bill of rights. The bill of rights of the former Evil Empire, the Union of Soviet Socialist Republics, was much better than ours. I mean it, literally. It was much better. We guarantee freedom of speech and of the press – big deal. They guaranteed freedom of speech, of the press, of street demonstrations and protests; and anyone who is caught trying to suppress criticism of the government will be called to account. Whoa, that is wonderful stuff!

Of course – just words on paper, what our Framers would have called a parchment guarantee. And the reason is, that the real Constitution of the Soviet Union – you think of the word “constitution,” it doesn’t mean a “bill”; it means “structure”; [when] you say a person has a sound “constitution,” [he] has a sound “structure.” The real Constitution of the Soviet Union, which is what our Framers debated that whole summer in Philadelphia in 1787 – they didn’t talk about the Bill of Rights; that was an afterthought, wasn’t it? — that Constitution of the Soviet Union did not prevent the centralization of power, in one person or in one party. And when that happens the game is over; the Bill of Rights is just what our Framers would call a parchment guarantee.

So, the real key to the distinctiveness of America is the structure of our government.

Boiled down, Scalia’s argument is that the structure of our government – who can make rules and how those rules are made – is what makes America unique.

Following the Scalia audio, Dr. Baker engaged in an academic discussion of the Founding Fathers’ purposeful diffusion of political power. As the Alaska Landmine’s own Jeff Landfield noted, Dr. Baker’s resume is so dense it’s hard to believe he had accomplished everything listed. Baker noted that abuse of power knows no political party, and that conservative and liberal politicians are guilty of seeking more and more power. Fielding questions from the audience, Dr. Baker explained that Governor Dunleavy’s veto of the $334,700 was not likely a separation of powers issue, because the Alaska Constitution explicitly grants the governor veto power over all appropriations, including the Alaska Court System’s budget. Only if the Governor vetoed so much of the judiciary’s budget as to stop its functioning, did Dr. Baker see a separation of power issue with the veto. As Governor Dunleavy’s veto amounted to somewhere around 1% of the Alaska Court System’s budget, it didn’t raise separation of powers issues to Dr. Baker. When pressed on the most extreme scenario – a hypothetical situation where the governor vetoes all of the judiciary’s budget – Dr. Baker pointed out that the structural counterbalance to such an act would be the dire political consequences a governor would suffer if he effectively shut down the courts. Constituents would have nowhere to turn for family law issues, criminal charges would go unprosecuted, and people and businesses would not have the neutral forum of the courts to resolve their differences. Dr. Baker’s point seemed to be that a governor that shut down the court system through vetoes would not last long politically, and that political necessities would cause his or her replacement to swiftly revive the courts.

Attorney General Clarkson also spoke. He discussed the Alaska Constitution and the Alaska Supreme Court’s decision on separation of powers. In the 1975 case Public Defender Agency v. Superior Court, the Alaska Supreme Court reasoned that given Alaska’s tripartite form of government (executive, legislative, and judicial branches), “it can be fairly implied that this state does recognize the separation of powers doctrine.” A year later, the Court stated that the “underlying rationale of the doctrine of separation of powers is the avoidance of tyrannical aggrandizement of power by a single branch of government through the mechanism of diffusion of governmental powers.” The following is the framework the Alaska Supreme Court has set out for determining whether an action violates separation of powers:

1. What is the nature of the complaint of power that is exercised. For example, in Brander v. Hammond, the Alaska Supreme Court struck down a statute that required the Alaska governor’s appointment of sub-cabinet officers (deputy commissions and division heads) to be approved by the Legislature as unconstitutionally violating separation of powers because the appointment of sub-cabinet executive officers was a power that is to be exercised by the executive branch.
2. Which branch of government has been assigned this power in the Alaska Constitution and whether the Alaska Constitution suggests the power is to be shared by two branches. For example, in Alaska Public Interest Research Group v. State, the Alaska Supreme Court upheld against a separation of powers challenge about the Legislature’s creation of the Workers’ Compensation Appeals Commission even though all of the judicial power is vested in the judicial branch because the Alaska Constitution explicitly envisioned the executive branch’s exercise of quasi-judicial power to adjudicate some disputes.
3. Whether the limits of any express grant have been exceeded or present an encroachment on another branch. Does the power exercised infringe on another branch’s ability to carry out its constitutional duties?

Applying this framework, General Clarkson opined that Governor Dunleavy’s admittedly punitive veto of $334,700 in the Alaska Court System’s funding did not violate the separation of powers doctrine. As to the nature of the complained of action, Clarkson pointed out that the line-item veto power is an executive power to exercise. As to the second factor, the Alaska Constitution explicitly gives only the governor the line-item veto power in Article II, Section 15: “The governor may veto bills passed by the legislature. He may, by veto, strike or reduce items in appropriation bills. He shall return any vetoed bill, with a statement of his objections to the house of origin.” Finally, as to the third point, Clarkson said the small amount of veto (roughly 1% of the Alaska Court System’s yearly funding) undercut any argument that the Governor’s veto impermissibly encroached on the judiciary’s power. Dr. Baker concurred with General Clarkson’s conclusion.

ACLU v. Dunleavy. This past July, the Alaska chapter of the American Civil Liberties Union, (along with local attorney John Kauffman and Anchorage resident Bonnie Jack) filed a lawsuit in Anchorage Superior Court. They have alleged that Governor Dunleavy’s veto of some judiciary funds is an unconstitutional violation of separation of powers. This case just got started and Governor Dunleavy has not yet answered the complaint.

Alaska has a home-grown separation of powers issue at the forefront, and you’ll have to stand by to see how the Alaska courts apply the separation of powers framework and rule on the ACLU’s lawsuit.

How do you think the Alaska Supreme Court will apply the three-part framework for separation of powers challenges to Governor Dunleavy’s veto, and what do you think the result will be?

Lee Baxter is a practicing Anchorage attorney. He provides periodic legal analysis for the Landmine in his spare time – when he is not fishing.