Alexis de Tocqueville was close to being right when he observed, “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.” I think the truth is slightly different. There is hardly a political question that someone does not try to turn into a judicial one.
Why do some in our society think that all important questions must be resolved by the judiciary rather than by the legislative and executive branches of government? Not all important questions of the day are meant to be settled by the judiciary. Courts are not supposed to address political questions. It is the legislative and executive branches of government that are specifically designed and intended to address political questions.
Moreover, some government powers and functions are entrusted to the legislative and executive branches and not to the courts. For example, the Alaska Constitution establishes a framework for our state’s budgeting. Budgeting is a shared power between the legislative and executive. The Constitution does not include the judiciary in this process.
The governor is required to submit a budget annually to the Legislature. Money cannot be spent from the treasury without legislative appropriation. The Legislature is required to pass a budget along with appropriation bills. Thereafter, the governor “may, by veto, strike or reduce items in appropriation bills.” Every line in the budget and every corresponding appropriation for every government branch and department falls under the governor’s veto power — there are no exceptions. The Legislature may override budget vetoes by a three-quarters vote.
Our constitutional drafters went even further to allow maximum budgeting flexibility to the Legislature and the governor. They included in our Constitution a prohibition against dedicated funds so that money cannot be set aside for specific purposes. Each year state programs must compete for annual funding. Our Supreme Court has explained that “the constitutional framers believed that the Legislature would be required to decide funding annually on the merits of the various proposals presented.” The budgeting process is “a joint responsibility” between the Legislature and the governor “to determine the state’s spending priorities on an annual basis,” says our court. And this is a bedrock principle — the court has reiterated this point in every dedicated funds case it has ever decided.
True, our Constitution requires the state to do certain things, like establish and maintain a system of public schools and provide for, promote and protect public health and welfare. But acknowledging that fact is profoundly different from claiming that the Constitution sets precise minimums that must be spent in these areas or that the Constitution empowers the court to create those minimums.
Our constitutional drafters understood that state revenues would vary up and down over the years and that spending priorities would need to be determined on an annual basis. In this respect, our Constitution unmistakably gives authority to the Legislature and the governor, via their respective powers and shared responsibility, to determine which state programs should be funded and how much of our finite annual resources each state branch, department and program should receive.
Any argument that the governor cannot exercise his expressly granted constitutional power to veto particular line items in the state’s annual budget is pure rhetoric with no basis in law.
Many of the programs for which funding has been reduced are good programs. VPSOs, for example, play an important role in assisting with public safety. But these positions are hard for the state to fill because of a lack of available and qualified candidates. Would anyone seriously argue that the state fails to meet a constitutional requirement simply because it cannot find sufficient qualified candidates to hire as VPSOs?
Think of it this way: If our oil revenues dry up, our constitutional budget reserve and savings accounts run empty, and the income from the Alaska Permanent Fund diminishes, we would be dependent on tax revenue from our populace, tourists and businesses. In that circumstance our budget would have to be drastically smaller than what we are contemplating today. In that day, would anyone seriously assert that our Constitution requires the Legislature and governor to spend more than we have on any particular government function or program in order to match some mandated minimum? Or that the judiciary is somehow super-empowered to decipher what those mandated minimums, above and beyond our actual revenues, might be?
The drafters of our Constitution were intelligent people, and they knew what they were doing. Unfounded legal arguments are pointless. There are legitimate policy discussions to be had regarding our spending priorities, and from what I can see, Alaskans are actively engaged in that debate.
Kevin Clarkson has been attorney general since the beginning of Gov. Mike Dunleavy’s administration.