Alaska Gov. Mike Dunleavy delivers remarks at the Rolling Back Regulations to Help All Americans event Thursday, July 16, 2020, on the South Lawn of the White House. (Official White House Photo | Joyce N. Boghosian)

Alaska Gov. Mike Dunleavy delivers remarks at the Rolling Back Regulations to Help All Americans event Thursday, July 16, 2020, on the South Lawn of the White House. (Official White House Photo | Joyce N. Boghosian)

Opinion: A constitutional defense of the administrative state

In the summer of 2020, then-Vice President Mike Pence told an audience gathered on the White House lawn that Gov. Mike Dunleavy’s administration had “modified or rolled back 239 different regulations in over 100 professions.” While there’s good reasons to question that statement, one of his attempts at deregulation since then just got rolled back by a Superior Court judge in Anchorage.

And the state’s reaction to that ruling doesn’t align with the conservative cry to defang the administrative state.

To suggest Pence’s story is an exaggeration might be an understatement. But Dunleavy wasn’t inclined to correct him. He played along by claiming four decades of federal regulations had “killed the American Dream.” Then threw in the hyperbolic scenario of private landowners wondering if “big government” is watching them “do a little landscaping on their property.”

Last week’s court ruling involved deregulation of public property, specifically the Fox River Flats and Kachemak Bay Critical Habitat Areas. They were established by the Alaska Legislature in the 1970s. The purpose was to “protect and preserve habitat areas especially crucial to the perpetuation of fish and wildlife, and to restrict all other uses not compatible with that primary purpose.”

One restriction that had been in place for decades is a ban on personal watercraft within the boundaries of the two areas. Much to the chagrin of many Kachemak Bay residents, the Alaska Department of Fish and Game (ADF&G) repealed it in December 2020.

It’s fair to say some of them believed that decision interfered with their version of the Alaska dream. Because soon after, they sued the state. The Superior Court judge who presided over the case concluded ADF&G acted “outside the scope of its delegated authority.”

In this case, the Dunleavy administration couldn’t celebrate a judicial ruling with those words. Patty Sullivan, an attorney with the Alaska Department of Law, argued that “The entire point of regulations is that the agency has discretion to implement its programs within its statutory authority, and if you adopt a regulation, you should be able to determine when the regulation is no longer necessary.”

Notice how her statement confirms that implementing the original ban fell within ADF&G’s statutory authority. That’s because, like most statutes, the Legislature wasn’t that prescriptive. They delegated the responsibility to ADF&G for developing regulations that would comply with the intent of the statute.

Consider the Securities and Exchange Commission v. Jarkesy case which was argued before the U.S. Supreme Court this week. In 2013, the SEC accused George Jarkesy Jr. of committing securities fraud. His request for a trial by jury was denied. Instead, an administrative law judge found him guilty, fined him several hundred thousand dollars, and restricted the type of securities he could manage.

Jarkesy appealed to the Fifth Circuit Court. They ruled the SEC deprived him of his constitutional right to a jury trial and that Congress unconstitutionally delegated legislative power to the SEC by not providing it “an intelligible principle” that would guide use of that power.

According to Washington Post columnist George Will, if Jarkesy “prevails, the constitutional right of access to courts will be vindicated, constitutionally dubious delegations of congressional power will be curtailed, and administrative state agencies will have to respect the separation of powers. Let us hope for what progressives fear: the end of government as they have transformed it.”

I agree with Will’s first point — the Constitution’s Seventh Amendment guarantees Jarkesy the right to a trial by jury.

But his reference to “dubious delegations” follows the Court’s note that “an intelligible principle” was missing. Both are acknowledgments that in the proper course of enacting laws, it’s constitutionally appropriate for legislative bodies to delegate responsibilities to the unelected officials working in government agencies.

And the end of government as it’s been transformed by progressives isn’t nearly as sweeping as it sounds.

The problem is, in today’s political environment that’s dominated by apocalyptic rhetoric, such nuances are inconvenient.

That’s why I appreciated Sullivan’s statement following the judge’s ruling on the Critical Habitat Areas case. That doesn’t necessarily mean I agree with the state’s intent to eliminate the ban on personal watercraft. But it’s good point of reference for pushing back against the ill-informed Republicans in Alaska who would like to completely tear down the administrative state.

• Rich Moniak is a Juneau resident and retired civil engineer with more than 25 years of experience working in the public sector. Columns, My Turns and Letters to the Editor represent the view of the author, not the view of the Juneau Empire. Have something to say? Here’s how to submit a My Turn or letter.

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