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In 1998, the Alabama Legislature established a program of “Community Services Grants.”1 Criticized by some as pork-barrel legislation, the program was funded by annual appropriations ($11.7 million in 2004) and required that portions be distributed within each state house and senate district.2 The legislation faced two recent constitutional challenges in the Alabama Supreme Court, with very different results, giving the court the opportunity to discuss at length the separation of powers doctrine and the manner in which the doctrine differs on the state and federal levels.

McInnish v. Riley

In its first incarnation, the Community Services Grants legislation established a “Joint Legislative Oversight Committee on Community Services Grants” (“the Committee”), made up of members of the Alabama Senate and Alabama House of Representatives.3 As a member of the Committee testified in the trial court, an individual legislator applied for grants that would be distributed in his or her district, and the Committee voted on whether to approve the application:

[The Committee meets] regularly to consider applications from members [of the legislature]. Each member as has been pointed out, gets “X” amount of dollars and they fill out this form that’s prescribed. We review the forms. We discuss the forms. We either approve, deny, or modify. And once a form is approved, a check request is made and the legislator gets the money to spend for that particular purpose. . . . We turn down some. We modify some. We send some back for further clarification if we’re not satisfied with the clarification. We ask the member to come personally; appear before the Committee.4

A taxpayer challenged the statute on constitutional grounds, specifically arguing that the Legislature, through its members’ actions on the Committee, encroached upon the functions of the executive branch. The taxpayer argued that the Legislature has the authority to make appropriations, but “[o]nce a legislative body appropriates funds, its role ends and it is for the executive branch to make the discretionary decisions as to how appropriated funds should be expended.”5 The trial court upheld the statute but the Alabama Supreme Court reversed on appeal, striking the legislation on grounds that it violated the separation of powers doctrine.6

The court first noted that some constitutions, including that of the United States, do not specifically require that the separate branches maintain separate spheres of operation; instead, that requirement is merely implied by the structure of government.7 In Alabama’s constitution, however, as in many other states’ constitutions, the separation of powers doctrine is expressly enshrined. One provision establishes the separate branches of government:

The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confined to a separate body of magistracy, to wit: Those which are legislative, to one; those which are executive, to another; and those which are judicial, to another.8

A second provision requires separation of their respective functions:

In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.9

The court next noted the U.S. Supreme Court’s decision in Bowsher v. Synar.10 That case involved the “Gramm-Rudman-Hollings Act,” which provided for automatic reductions in the federal budget to be implemented by the comptroller general, who was an officer of the legislative branch and who served at the pleasure of Congress.11 The court struck the legislation because Congress placed responsibility for executing the Act in the hands of an officer of Congress:

The Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess. . . . To permit an officer controlled by Congress to execute the laws would be, in essence, to permit a congressional veto.12

Applying Bowsher to the statute at hand, the Alabama Supreme Court concluded that the Committee—made up exclusively of legislators who were empowered to direct the expenditure of appropriated funds—was in fact executing the law: “It is well established that ‘handing out public money is a classically executive function.’”13 The Committee’s actions could not be construed as merely “ministerial,” because the Committee itself held all the discretion.14 Therefore, the challenged statutes were an “encroachment of the executive powers specifically reserved to the executive branch of government by the Alabama constitution.”15

The court distinguished its 1943 decision in Opinion of the Justices No. 64.16 There the court considered the constitutionality of a “War Emergency Council,” comprised of the Governor and eight members of the Legislature and which was charged with disbursing certain emergency appropriations.17 That Council differed from the Committee at issue in McInnish, the court reasoned, because it included the Governor (a member of the executive branch), meetings were called only by the Governor, and the Governor held veto power over any decision of the Council.18 The Committee in McInnish, conversely, was comprised solely of members of the state legislature and did not have “at least such executive-branch control as was contemplated in Opinion of the Justices No. 64.19 The legislation was therefore unconstitutional.20

King v. Morton

The state legislature soon responded to the McInnish decision and amended the statutes struck down in McInnish.21 The amendments transferred a portion of the money-spending process to the newly created Executive Commission on Community Services Grants (“Executive Commission”). The Legislature did not bow out completely: The former Committee, previously known as the Joint Legislative Oversight Committee, was renamed the “Legislative Advisory Committee on Community Services Grants” (“Advisory Committee”), but is still comprised solely of legislators. As before, a lump sum is appropriated for purposes of the grants program with the requirement that particular percentages be distributed within each house and senate district, and individual legislators submit applications to the Advisory Committee for grants to spend in their district.22 However, the Advisory Committee does not approve or reject applications, but instead recommends approval or rejection, and the application is then forwarded to the Executive Commission.23 The Executive Commission has “absolute discretion to award or reject any grant.”24

By statute, the Executive Commission includes the State Superintendent of Education, the Lieutenant Governor, the State Treasurer, and the Commissioner of Agriculture and Industries.25 Each of these state officers is an officer of the executive branch.26 The Executive Commission did not, however, include the Governor, who is granted “supreme executive power.”27

Alabama’s Governor and Attorney General brought suit in state court to challenge the new incarnation of the program on separation of powers grounds, arguing that the changes wrought by the Legislature did not solve the problems that led to the statutes’ demise in McInnish.28 Both the trial court and the Alabama Supreme Court upheld the new version of the grants program and found that, on its face, the legislation did not violate the separation of powers doctrine. 

1. Separation of Powers

 

The plaintiffs argued that even as amended, the grants program violates separation of powers. While the Legislature transferred portions of the process to members of the executive branch, grants applications are still made first to legislators, and in practice the Advisory Committee is the body that investigates applications and has sufficient information to judge the merits of an application.29 The statutes, however, gave the Executive Commission both the right and the ability to investigate applications, and on a facial challenge, that right proved enough to uphold the statute.

The court noted that the Legislature has every right to decide which applicants should receive grants, if it makes that decision through legislation.30 Moreover, the Legislature may delegate that role to another branch of government “so long as the delegation carries reasonably clear standards governing the execution and administration.”31 The flaw of the legislation at issue in McInnish was that the Legislature attempted to delegate that function to itself, “making that decision post-enactment, in a manner other than by enacting new legislation.”32 Conversely, the program as amended delegates the decision to the Executive Commission, which is not a part of the legislative branch and which is not required to follow the Advisory Committee’s recommendations.33

The court noted that Alabama’s constitution “provide[s] for a stricter application of the separation-of-powers doctrine than is compelled by the federal constitution.”34 Justice Harold See, in a concurring opinion, wrote that whenever one department of Alabama’s state government exercises a power generally entrusted to another department, it must “point to an express constitutional direction or permission to do so.”35 That being the case, it was enough to uphold the statute that the Executive Committee, made up of members of the executive branch, held ultimate discretion to affirm or deny grant applications.36

2. The Role of the Chief Executive

 

The plaintiffs also argued that the statutes fail because they give the Governor—the chief executive—no role in the grants program, and that the legislation therefore violates the constitutional provision vesting the Governor with “supreme executive power.”37 The Governor has no seat on the Commission or right to appoint members. He does not call meetings, holds no veto power, and has no vote. 

As in many states, Alabama’s constitution provides for a divided executive branch. Other officers within the executive department are expressly enumerated in the constitution, which provides for separate elections for Governor, Lieutenant Governor, State Treasurer, Commissioner of Agriculture and Industries, State Auditor, Secretary of State, and Attorney General.38 Each of those officers is a member of the executive branch who has been given specific powers and duties by the constitution itself.39 The Governor, thus, shares executive powers with other constitutional officers, none of whom serve at the Governor’s pleasure. Even so, only the Governor is vested with “supreme executive power.”

Plaintiffs did not attempt to articulate a standard or test for how great a role the Governor must be given with respect to a body or program within the executive branch. Rather, plaintiffs argued that the Governor must receive at least some meaningful role (“more than zero.”).40 The court held, however, that the Governor “is not totally without control of the Executive Commission” for three reasons: (1) “If the [plaintiffs are] correct that § 113 gives the Governor supreme control of the executive department, then the Governor perforce has a measure of control over the Executive Commission;”41 (2) the constitution provides that the Governor may require reports from officers within the executive branch;42 and (3) the Governor has the right by statute to institute an action to recover public funds that are wrongfully expended.43 Because the plaintiffs argued only that the Governor must not be completely shut out of an arm of the executive branch and because the Governor does have at least some role in the grants program, the role (or lack of role) for the Governor was not grounds to strike the statute.44

The court did not hold that it was permissible to exclude the Governor from an executive function. That argument appears to remain open. However, a challenger must be able to show either that the Governor plays no role whatsoever in the challenged program, or must articulate a standard for how much of a role is required by the constitution.

*Jim Davis is an Assistant Attorney General for the State of Alabama and is a graduate of the University of Virginia School of Law

 

Endnotes

1 See Act No. 98-677, Ala. Acts 1998, originally codified at Ala. Code (1975) §§ 19-1-120 to -124. 

2 The program was funded annually. The challenged $11.7 million appropriation was made in 2004 by Act No. 2004-456. 

3 McInnish v. Riley, 925 So. 2d 174, 175 (Ala. 2005) (“McInnish”). 

4 Id. at 184. 

5 Id. at 179. 

6 Id. at 188. 

7 Id. at 178. 

8 Ala. Const. (1901) § 42. 

9 Ala. Const. (1901) § 43. 

10 478 U.S. 714 (1986). 

11 Id. at 718, 731. 

12 Id. at 726. 

13 McInnish, 925 So. 2d at 182 (quoting Frank H. Easterbrook, “Success” and the Judicial Power, 65 Ind. L.J . 277, 281 (1990)). 

14 Id. at 184. 

15 Id. at 188. 

16 244 Ala. 386, 13 So. 2d 674. 

17 244 Ala. at 387-88, 13 So. 2d at 675-76. 

18 McInnish, 925 So. 2d at 183. 

19 Id. at 188. 

20 The court declined to hold that the case presented a non-justiciable political question because the issue was not one of “discretion, but of power.” Id. at 187. 

21 Act No. 2006-511, amending Ala. Code §§ 29-2-121 and 29-2-123. 

22 King v. Morton, ___ So. 2d ___, 2006 WL 2938636 *2 (Ala. Oct. 12, 2006)(“Morton”). 

23 Ala. Code (1975) § 29-2-123. 

24 Id.. 

25 Ala. Code (1975) § 41-24A-1. 

26 Ala. Const. (1901) § 112. 

27 Ala. Const. (1901) § 113, which reads in full: “The supreme executive power of this state shall be vested in a chief magistrate, who shall be styled ‘Th e Governor of the State of Alabama.’” The Governor is also the only officer in the executive branch who is charged with the duty to “take care that the laws shall be faithfully executed.” Ala. Const. (1901) § 120. 

28 Morton, supra note 22. 

29 Id. 

30 Id. at *4. 

31 Id. 

32 Id. 

33 Id. at *5. 

34 Id. at *6. 

35 Id. at *8 (See, J., concurring). 

36 Id. 

37 See Ala. Const. (1901) § 113, supra note 27. 

38 Ala. Const. (1901) §§ 112, 114. 

39 Ala. Const. (1901) §§ 113, 120, 134, 137. 

40 Morton, supra note 22, *6. 

41 Id. 

42 Ala. Const. (1901) § 121. 

43 Ala. Code (1975) § 6-5-4. 

44 Morton, supra note 22, *7.

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