Separation of powers question must be answered

  • (Editorial Cartoon by Bob Englehart, CagleCartoons.com)

Gov. Bill Walker thinks he did the right thing by vetoing half of this year’s Permanent Fund Dividend appropriation. There can be no definitive answer to that question, but there will have to be one as to whether what he did was legal.

The legal question is obvious when Walker not only crossed out the $1.3 billion that was to be transferred from the Permanent Fund Earnings Reserve into the Dividend Fund, but also struck through the statutory language authorizing the payment.

Clearly Walker received legal advice that he had to cross out the statute as well as the appropriation to make the veto, which means someone at the Department of Law recognized there is a potential conflict with the law and his constitutional line item veto authority.

Although the case is in Superior Court now, the Alaska Supreme Court will ultimately have to decide the matter.

It’s a worthy issue to determine, and even though there has been plenty of criticism directed at Sen. Bill Wielechowski from this page, in this case he and his fellow plaintiffs are doing the state a service by refusing to allow Walker’s action to go unchallenged.

Wielechowski, the runaway winner for least media-shy member of the Legislature, is no stranger to grandstanding but Walker is way off base to allege the motivations here are about reelection.

Walker and his Department of Law believe his constitutional line item veto authority applies to every appropriation and therefore trumps any statute that may conflict with it.

The plaintiffs argue it only applies to appropriations from general budget funds, and because the PFD transfer never touches the general fund it is off limits to Walker’s power to veto.

In Walker’s column justifying his action in our current issue, the governor writes that, “it is clear we can’t continue to use the current dividend formula.”

That formula is set in statute, and if Walker wants the formula changed he has to get the Legislature to approve it. The governor hurts his constitutional case by excusing his action with a reference to the statute that determines the dividend.

Around this time last year there was another lawsuit filed based on a separation of powers question when Walker — again, after failing to convince the Legislature to go along with him — unilaterally expanded Medicaid by accepting federal dollars to cover a new group of enrollees.

Speaking of grandstanding, Walker and Wielechowski were lined up on that one accusing Republicans of not wanting poor people to have health care and all but die in the streets instead.

It wasn’t in dispute that Walker could accept federal dollars. What was in dispute was a very legitimate constitutional question as to whether Walker could add a new class of people to the Medicaid program without legislative approval.

Walker had proposed legislation to do just that earlier in 2015 but had no success dealing with the Legislature, just as he has failed to work constructively on a host of other issues.

That raised the question: if Walker thought he needed a bill to expand Medicaid at one point, what changed that he could add the new class unilaterally simply by virtue of taking the federal money?

The answer is nothing, and it should have been adjudicated all the way to the Supreme Court after the case was initially dismissed in Superior Court by a judge with past professional ties to the governor that weren’t disclosed at the time.

But the Senate Majority weaseled out of the case and left the House Majority holding the bag.

Unable to present a unified front, the case died with the question unanswered.

The Legislature then made it moot by funding the expanded class, which we learned in a report in this paper in August have exceeded initial cost estimates by more than $30 million just in the first 11 months of the program of which the state will eventually be responsible for 10 percent.

Both Wielechowski’s and the Republican majorities’ challenge of Walker’s unilateral actions are and were worth pursuing.

It would have been nice if both were treated with equal respect.

Andrew Jensen can be reached at [email protected].

Updated: 
09/29/2016 - 4:03pm

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