In this May 22, 2018 photo, Eric Forrer, left, and Joe Geldhof, right, discuss their lawsuit against the state of Alaska to stop a plan that calls for borrowing up to $1 billion from global bond markets to pay oil and gas tax credits owed by the state. (James Brooks | Juneau Empire File)

In this May 22, 2018 photo, Eric Forrer, left, and Joe Geldhof, right, discuss their lawsuit against the state of Alaska to stop a plan that calls for borrowing up to $1 billion from global bond markets to pay oil and gas tax credits owed by the state. (James Brooks | Juneau Empire File)

Opinion: Why I sued the state over the constitutionality of the release of federal funds

The threat of unconstitutional solutions to political problems will escalate.

  • By Eric Forrer
  • Monday, May 25, 2020 10:21am
  • Opinion

On May 14, I filed suit against the commissioner of revenue. The state was preparing to release in excess of one $1 billion of federal emergency funding on the basis of recommendations made by a single legislative committee. The funds were never appropriated by the full legislature, as required by the constitution.

This action was so clearly unconstitutional that several members of the legislature warned against it, as did the legislative legal office. The legislature was in session but had been in prolonged recess, and it was apparent that they were prepared to let the responsibility for spending the funds go to the committee and the governor, abdicating their constitutional duty.

This threatened action had, and now has, potential for long-term harm. Our constitution is the basis for a stable society, with everybody operating under the same rules. If leadership willfully creates structures that are plainly unconstitutional, then different populations in the state are living under different rules. There is a word for this, if it escalates: it is tribalism. There are ghastly shadows here, like Rwanda. State leadership consciously solving political problems by creating unconstitutional structures is a dereliction of duty, a violation of their oath of office to support and defend the constitution, and constitutes treasonous behavior.

In some fields of endeavor, notably politics and law, things are not always what they seem. So when I filed the suit against the impending actions of state leadership, what was it? Was it an attack? Was it an attempt, as virtually every newspaper headline said, to prevent the federal funds from being distributed to the people? Was it somehow trivial and or self-serving, as claimed by members of the Legislature?

[Juneau man sues state over COVID-19 relief distribution]

No. What it was, in fact, was a gift — the gift of a political tool to the leadership of the Legislature. Using the threat of the suit, they were able to summon the will to convene the legislature after a 50-day recess, something that had not been possible in the crisis atmosphere. Given this very real crisis, you would think that the members of the legislature and the administration could gather the courage, the intellectual capacity, and the political will to dispense the funds in a constitutionally appropriate manner. It is in their and the state’s interest to have a long term defensible and constitutionally conforming track record.

As far as the use of the suit as a political tool was concerned, it almost worked. But, sadly, pathetically, they just couldn’t relinquish their decades-long habits of ideological battle and their refusal to cooperate with each other for the sake of Alaskans. What crisis? Better to complain about having to do the job they wanted to get elected to do and stage a charade session with no content. Both houses passed unconstitutional law to underpin the release of the emergency money. The legislation is unconstitutional because it is not an appropriation bill as clearly laid out in the constitution. Instead, the legislature did something they called “ratifying” the existing committee work. But “ratification” is not found in the constitution. Ratification has no legal or constitutional definition, was invented on the spur of the moment, and does not contain any of the protections that an appropriation process provides.

Not all the leaves have fallen from this tree, and we’re into a long game now.

The threat of unconstitutional solutions to political problems will escalate. Will the governor be able to do whatever he wants, claim “need” and “extreme time pressure,” and get it “ratified” by a compliant legislature after the fact? Alaskans should not tolerate this. Instead of bringing out the desperately needed better angels of political leadership, the world health and financial crisis will become a partisan tool, the public welfare be damned.

For this reason I will proceed with the lawsuit in the expectation that the courts will make it clear that the legislature cannot shirk their duty under the constitution.

I make prayers to the Raven that we will be able to stop the use of unconstitutional political chicanery and the consequent dangerous slide into tribalism.

• 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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