Most are familiar with the United States Senate’s “advice and consent” role in confirming Executive Branch nominees for key positions.[1] In most states, the legislature plays a similar role. Although the legislature’s precise role in the appointments process varies from state to state, there is usually a requirement for some legislative and executive cooperation in selecting senior Executive Branch officials.[2] In this way, a state’s nomination process often provides an opportunity for the legislature to exert an important check on the governor. These sorts of checks and balances are central to our system of government. However, they also generate a natural tension between the two branches, which has been exacerbated by executive action in response to the COVID-19 pandemic.[3]

In particular, the check a legislature holds on a governor’s nominees is emerging as a key flash point in the increasing tension between these two branches. It is easy to understand why. A governor’s appointees are often vital to the executive’s ability to lead their state and a legislature’s check on those appointments provides a real opportunity for a legislator to influence the policy priorities of her state. Recently, for example, in Virginia the Democratic-controlled senate refused to confirm one of newly-elected Republican Governor Glenn Youngkin’s cabinet nominees, which led to tension within the Republican-controlled house of delegates over a slew of pending appointments made by the previous Democrat Governor, Ralph Northam.[4]

Although it is easy to understand the temptation for legislators to exert influence using this crucial check, what happens when there is a dispute over the legislature’s role in confirming executive branch officials? A recent case by the Alaska Supreme Court, State v. Alaska Legislative Council, provides an interesting perspective while resolving a dispute between the state’s Governor and legislature over the latter’s role in confirming executive branch officials.[5]

The Alaska Constitution vests the Governor with the authority to appoint executive officials but subjects many such appointments to legislative confirmation.[6] Subject to these provisions, which provide only that confirmation must be “by a majority of the members of the legislature in joint session,”[7] the Alaska legislature enacted statutes to further proscribe the confirmation process.[8] In State v. Alaska Legislative Council, the Alaska Supreme Court resolved a dispute between the two branches over “the effect of the Alaska Legislature’s failure to exercise its confirmation power during the disruptions in regular government activity due to the COVID-19 pandemic.”[9]

The legislature maintained that under the statutorily prescribed process for confirming nominees, its inaction was the same as a denial of confirmation.[10] In support, the legislature pointed to state law providing that “[f]ailure of the legislature to act to confirm or decline to confirm an appointment during the regular session in which the appointment was presented is tantamount to a declination of confirmation on the day the regular session adjourns.”[11] The Governor, on the other hand, argued that this statute violates the Alaska Constitution and that his appointees remained in office and could continue to serve until the legislature affirmatively voted up or down on their confirmation in a joint session.[12]

The Alaska Supreme Court—reversing the superior court’s grant of summary judgment in favor of the legislature—determined that “the laws defining legislative inaction as tantamount to rejection” violated the Alaska Constitution, “which require[s] that the legislature consider a governor’s appointees in joint session.”[13]

As the Alaska Supreme Court recounted, in 2020 Governor Mike Dunleavy presented over 90 appointees to the legislature for its consideration and confirmation.[14] Shortly thereafter, however, the Governor declared a public health emergency because of the COVID-19 pandemic and the legislature went into recess without confirming any nominees.[15] Prior to recessing, however, the legislature passed legislation allowing it to consider the governor’s nominees “at any time,” and extending the statutory deadline for acting before its inaction would be tantamount to declining to confirm to the earlier of January 18, 2021, or 30 days after the governor’s public health emergency expired.[16]

The public health emergency expired November 15, 2020, and, under the law, as amended, the legislature’s inaction on the Governor’s nominees became tantamount to declining the nomination on December 15.[17] The very next day, the Governor sent letters to the senate president and speaker of the house asserting that his appointees would continue to serve and that he was exercising his constitutional authority under the recess appointments clause to continue their appointments.[18] The legislature responded, filing a complaint against the governor in superior court.[19] Finding that the statutory process was constitutional and that the appointees were validly rejected and therefore ineligible for recess appointment, the superior court entered summary judgment in favor of the legislature.[20]

Following oral arguments, the Alaska Supreme Court issued an order on April 8, 2021, reversing and vacating the superior court’s order and judgment and finding that the statutory provision providing that the legislature’s inaction was tantamount to voting down the confirmation violated the Alaska Constitution.[21] On November 12, 2021, a unanimous court explained its April order.

Reviewing the grant of summary judgment and questions of constitutional law de novo, the Alaska Supreme Court determined that the Alaska Constitution does not permit the legislature to define legislative inaction on a governor’s appointment as the equivalent of a rejection.[22] Noting that its analysis of the constitutional question was governed by the “plain text of the constitutional provision, as clarified by its drafting history,” the Court determined the Constitution “requires a joint session to either confirm or reject a governor’s appointees.”[23] By statutorily defining inaction to mean a denial, the law “nullif[ied] the requirement of a joint session vote” and was therefore unconstitutional.[24]

First, looking to the plain text of the constitutional provisions, the Alaska Supreme Court noted both sections at issue affirm that appointments are “subject to confirmation by a majority of the members of the legislature in joint session.”[25] Rejecting the legislature’s analysis that this provision requires a vote only for confirmation, and not declination, as an “oversimplification,” the Court described “confirmation” as the “process by which an appointee is determined to be either confirmed or rejected.”[26]

After analyzing the plain text, the Court determined that the history of Alaska’s Constitution further clarified that “delegates intended a confirmation process involving a joint session vote.”[27] In reaching this conclusion, the Court explained that “[t]he concept of joint session deliberations came up repeatedly during the convention debates about the confirmation process.”[28] In fact, rejecting a proposal that appointments be subject only to “advice and consent of the senate,” one Delegate explained that “an appointment by your executive department and a confirmation by your legislature as a total would mean the truest reflection of your entire elective thinking.”[29]

Finally, in dismissing the legislature’s argument that delegates appeared to recognize that inaction would mean rejection, the Alaska Supreme Court noted that the specific proposal the legislature cited to support its claim was not adopted.[30] Moreover, the Court conceded the legislature’s claim that the delegates left procedural details for the confirmation process to be defined by legislation; however, “the legislature could not undo by statute the constitutional requirement that confirmation be ‘by a majority of the members of the legislature in joint session.’”[31]

Indeed, the Court concluded that the constitutional convention showed Alaska’s break with the process used in other jurisdictions, a break designed to play to the state’s unique qualities:

A benefit of the state’s small population was the hope that a joint session of both houses of the legislature would be more likely to include legislators who knew the appointees personally and could comment on their qualifications, thus making more informed decisions about whether to confirm and ensuring that the entire state was represented in the process. Rejection by inaction negates every benefit of a joint session; it casts no reflection whatsoever on the appointees’ fitness for the positions to which they were appointed, and it is especially difficult to see how it could be read as a legislative judgment that they were unfit to serve as recess appointments. A failure to act also may lead, as it did here, to a large number of critical vacancies in the executive branch, effectively weakening it while serving no articulable purpose consistent with the framers' intent.[32]

This case illustrates the significance of the legislature’s check on executive appointments, leaving in limbo the fate of over 90 gubernatorial appointees until the Alaska Supreme Court weighed in.[33] It also highlights the unique nature of the confirmation process in each state. Often reflecting unique characteristics of the state, the specific contours of this process and how the legislature can exert its check on an executive’s nominees will be primarily dictated by state constitution, as clarified by statute and judicial interpretation.

Following the COVID-19 pandemic, as tensions increase between the legislative and executive branches, we can expect state legislatures to increasingly view the confirmation process as an opportunity to flex their legislative muscle. Legislatures are, after all, policy-making bodies, and they undoubtedly have an important role in shaping their state’s policy outlook, including through the confirmation of executive branch officials. However, this tension is not inherently bad; rather, it is a result of a core feature of our system of government. As the Alaska Supreme Court remarked: “Confirmation as a process is a check on a governor’s appointment power.”[34]


[1] U.S. Const. art. II, § 2 (“The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law”).
[2] See Jon Davis, Capital Closeup | Legislative Confirmation of Gubernatorial Appointments, Council of State Governments (Sep. 15, 2020), https://csgmidwest.org/2020/09/15/confirming-state-agency-heads-is-usually-a-straightforward-process.
[3] See Alan Greenblatt, Political Power Plays: Tension Between the Legislative and Executive Branches Escalates, NCSL (Jan. 12, 2021), https://www.ncsl.org/bookstore/state-legislatures-magazine/tension-between-legislative-and-executive-branches-escalates-magazine2021.aspx.
[4] Associated Press, Fight Over Wheeler Nomination Broadens in Virginia, WUSA9 (Feb. 11, 2022), https://www.wusa9.com/article/news/local/virginia/fight-over-wheeler-cabinet-nomination-broadens-in-virginia/65-de3f5307-1c99-4e15-a3de-174386237e20.
[5] See State v. Alaska Legislative Council, 498 P.3d 608 (Alaska 2021).
[6] Alaska Const., art. III, §§ 25 and 26.
[7] Id.
[8] See Alaska Stat. § 39.05.080.
[9] Alaska Legislative Council, 498 P.3d at 610.
[10] Id.
[11] Id. at 611 (citing Alaska Stat. § 39.05.080(3).
[12] Id. at 610, 612-13.
[13] Id. at 610.
[14] Id. at 611.
[15] Id.
[16] See id.
[17] Id.
[18] Id. at 612.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at 612-13.
[23] Id. at 613.
[24] Id.
[25] Id. (quoting Alaska Const. art. III, §§ 25, 26) (emphasis in original).
[26] Id. (emphasis in original).
[27] Id. at 614.
[28] Id.
[29] Id. at 615-16.
[30] Id. at 616.
[31] Id. (quoting Alaska Const. art. III, §§ 25, 26).\
[32] Id. at 617
[33] Id. at 611.
[34] Id. at 613-14.

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