By: James Brooks, Alaska Beacon
Alaska Gov. Mike Dunleavy’s move to establish a state Department of Agriculture during the ongoing legislative special session appears to be turning into a fight over executive power, and it could be ultimately decided by the courts.
Last week, as the special session opened in Juneau, Dunleavy signed an executive order intended to establish the Alaska Department of Agriculture by moving parts of the Alaska Department of Natural Resources into a separate agency.
Alaska is one of only two states without a cabinet-level agriculture department, and Dunleavy has said he wants to create one in order to help the growth of farming in the state. Creating a cabinet-level agriculture department was the top priority of a state “food security” task force in 2022 intended to encourage farming here.
The governor’s order would take effect Jan. 1 and is almost identical to one Dunleavy issued this spring.
Under the Alaska Constitution, lawmakers can stop an executive order if they vote to dismiss it within 60 days. Legislators did just that with the spring order, voting 32-28 in March to deny the governor’s original order.
At the time, and since then, legislators have said that they prefer to enact a state department via law because it allows them to include their own ideas and comments of the public.
“The problem with an executive order is that we can’t amend an executive order,” said Senate President Gary Stevens, R-Kodiak, “and there’s some things that I think folks want to do.”
This month, when Dunleavy repeated the order, legislators refused to accept it.
Stevens and Speaker of the House Bryce Edgmon, I-Dillingham, said in a letter to the governor that introducing an executive order during a special session is unconstitutional, and that repeating an already disallowed order is also unconstitutional.
“This falls in the category of so many things during Dunleavy’s tenure as governor, where he has tried to push the boundaries with the Legislature. And we’re at the point now where we’re tired of being pushed around,” Edgmon said by phone on Friday.
The governor responded to the legislators’ letter with a letter of his own last week, saying that he has a different legal interpretation and believes the Legislature’s view is wrong.
Jeff Turner, the governor’s communications director, said by email on Friday that the letter still stands as the governor’s view and nothing has changed since then.
“His sort of threat to go ahead anyway is a little disconcerting,” Stevens said. “The legislative process, though long … winds up with a better answer because the public will have a chance to testify in the committee hearings, and we’ll all have a chance to discuss it and try to figure out the best way going forward. Unfortunately, an executive order is really sort of a ham-handed way to organize a new department. I really hope the governor allows us to move ahead and do it on our own through the legislative process.”
Legislators could meet in joint session and again vote down the governor’s executive order, but doing so would be an implicit acknowledgement that the governor has the ability to issue a valid executive order during a special session.
“We’ve heard that from our legal folks,” Stevens said, “that establishing a precedent like that could be dangerous in the future. Any governor then could do something without the Legislature really being involved. … and so we’re really concerned about precedents.”
Those differing positions have created a standoff: Legislators are refusing to accept the order as valid, and the governor’s office has said that if legislators don’t vote it down, Dunleavy will take that as acceptance. He said he will go ahead with plans to create the department on Jan. 1.
If he does that, Stevens said that the issue is likely to go to the courts.
Edgmon said that lawmakers are prepared to stand their ground.
“The Legislature believes its decision to send the executive order back to the governor is based on firm ground, and we fully intend to defend our institution’s ability to do its work,” he said.
