Editor’s Note: This story was corrected on 1/12/25 to reflect the fact that the Alaska Superior Court, not the Alaska Supreme Court made the decision.
On December 31, 2025, Governor Dunleavy lost his case defending EO 127, his second executive order attempting to establish a State Department of Agriculture. After the Legislature rejected his first attempt to establish a Department of Agriculture for Alaska, Dunleavy reissued the executive order during a special session in August 2025. The Legislature rejected the executive order again, this time on the grounds that Dunleavy issued it unlawfully. The Legislature argued that governors may only issue executive orders during the Legislature’s regular session, not during a special session.
While the State of Alaska does not have a Department of Agriculture, it does maintain a Division of Agriculture under the management of the Department of Natural Resources. When issuing the executive order, Governor Dunleavy argued that the establishment of a Department of Agriculture separate from the Department of Natural Resources would “encourage the development of expertise, eliminate duplication of functions, and establish a single point of responsibility for state agriculture policy.”
In defense of Dunleavy’s EO 127, Representative Kevin McCabe argued in an op-ed published August 7: “It was a necessary, constitutional step toward food security.” McCabe also argued that not only did the Legislature violate the Constitution by refusing to consider EO 127, but also that the rejection of EO 126 (Dunleavy’s first attempt, submitted during the regular session) was “a violation of the Constitution’s intent” because it was rejected for political reasons. However, the Superior Court has now decisively disagreed with McCabe’s and Dunleavy’s interpretation of the constitutional language.
The Alaska Legislative Council filed its complaint and motion for summary judgement with the Alaska State Superior Court on October 3, 2025. Governor Dunleavy filed his cross-motion on October 24. The Council asked the Court for “(1) declaratory judgement that Executive Order No. 137 is legally ineffective, null, and void, (2) declaratory judgement that the Governor violated Article III, Section 23 of the Alaska Constitution, AS 24.08.210, and the separation of powers doctrine by forwarding a proposed executive order to the Legislature for consideration during a special session, and (3) declaratory judgement that the Legislature is entitled to sixty days of a regular session, or a full regular session if of shorter duration, to disapprove of an executive order.”
The Court granted the Council’s motion after a thorough examination of the text and drafting history of Article III, Section 23 of the Alaska State Constitution. The Court concluded that “the best interpretation of Section 23 is that the framers intended that an EO be presented and considered only during a regular session. This conclusion is based primarily on the drafting history.”
