In a pair of letters, Alaska’s Senate president and the Senate minority leader have accused Attorney General Kevin Clarkson of violating the state constitution and state law by refusing to defend a law that encourages construction firms to use Alaska workers on state contracts.
The letters are escalating a conflict between Alaska’s executive and legislative branches of government as Senate President Cathy Giessel, an Anchorage Republican, and Senate Minority Leader Tom Begich, an Anchorage Democrat, say Clarkson’s job is to defend the law until a court rules it unconstitutional. Clarkson said he took an oath to defend the U.S. and Alaska constitutions, and if a law violates those constitutions, it makes financial and practical sense to stop enforcing it.
“It just seems so clear that the law is unconstitutional,” Clarkson said.
The Alaska Legislature is already suing the governor’s office over its decision to not follow a school funding law passed in 2018. The Alaska Department of Law has argued that the law is unconstitutional and cannot be followed. Legislative attorneys have argued that the law is constitutional and must be followed.
The exchange over the state’s Alaska-hire law follows a similar pattern.
In July, the Southeast Alaska construction company SECON filed a suit alleging that the state’s law was unconstitutional. SECON was challenging fines levied by the state for violations of the law. Rather than fight the lawsuit, the Alaska Department of Law decided to settle: It canceled some of the fines, and Clarkson agreed to write a legal opinion — without promising a specific result — about the constitutionality of the law.
Clarkson’s opinion, released earlier this month, said Alaska’s existing local-hire law is unconstitutional and should not be defended. The state is preparing a final settlement agreement in the lawsuit, senior assistant attorney general Cori Mills said Tuesday.
Legislators had strong reactions to Clarkson’s decision, which goes against decades of policy from Republican and Democratic administrations alike. Legislators generally believe that because the law remains on the books, Clarkson should defend it until a judge renders a verdict. Failing to defend it, they say, is effectively making policy for the state.
“Your ad hoc determination that the laws of our land, which remain untested in the courts, are unconstitutional is a diversion into the lawmaking field that is rightfully the purview of this branch of government,” Giessel wrote Oct. 22.
In his letter, co-signed by Sen. Bill Wielechowski, D-Anchorage, Begich echoed Giessel’s remarks, noting that “the attorney general’s failure to enforce Alaska Hire and failure to prosecute and impose fines for violations of the law appear to violate his express statutory duties under AS 44.23.020.”
“You don’t get to be judge, jury and executioner. It’s your job to defend the laws of the state of Alaska,” Wielechowski said of the attorney general’s role.
But in a letter responding to Giessel, Clarkson wrote that “nowhere in law is the attorney general charged with a duty to defend every statute, however plainly unconstitutional it may be.”
By phone, he said that in his view, the Legislature has the incorrect assumption that “it’s the attorney general’s job to defend whatever law that they pass, and it’s the court’s job to throw that out."
That doesn’t make sense, he said. Fighting a case to the Alaska Supreme Court and losing would have cost the state between $600,000 and $800,000, he estimates.
In addition to the financial aspect, his oath of office references the Alaska and national constitutions, not state law.
“I didn’t take an oath to promise to defend every law the Legislature passes no matter how unconstitutional it is,” he said.
In an attachment to the Wielechowski-Begich letter, legislative attorney Daniel Wayne said the local-hire law may very well be unconstitutional, but “because of the separation of powers doctrine, it is the province of the court, not the executive or legislative branch, to declare that a law is unconstitutional.”
At the time of its passage, Alaska’s local-hire law was believed to be in accordance with the law and has remained in force for 30 years without challenge until this year.
If Clarkson fails to enforce the local-hire law, Wayne concluded, he would violate laws dictating the duties of the attorney general, including that he should “prosecute all cases involving violation of state law.”
Asked what the next step in the dispute will be, Giessel said she doesn’t know yet.
“I haven’t really pondered next steps. I think we’ve made our concerns clear,” she said.
Clarkson said that if legislators do want to encourage local hire, there are constitutional ways to do so, including job-training programs and offering financial incentives for companies who hire Alaskans.