Attorney General says ‘Alaska Hire’ provisions unconstitutional

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‘FIXED PERCENTAGE’ REQUIREMENT SHOULD NOT BE ENFORCED

Attorney General Kevin Clarkson today issued an opinion on “Alaska Hire” requirements: They are unconstitutional.

“Simply stated, Alaska Hire requires certain private employers to hire a fixed percentage of qualified Alaskans, or face fines or imprisonment … I have concluded that Alaska Hire violates both the U.S. and Alaska Constitutions, and that the State should stop enforcing its provisions,” Clarkson wrote.

“Alaska Hire violates the U.S. Constitution’s Privileges and Immunities Clause and the Alaska Constitution’s Equal Rights, Opportunities, and Protection Clause (“Equal Protection”). 

Excluding nonresidents in order to economically benefit residents is not a legitimate role for state government, under the federal Privileges and Immunities Clause or Alaska’s Equal Protection Clause, he wrote.

Also known as the Comity Clause, the Privileges and Immunities Clause prevents states from treating citizens of other states in a discriminatory manner.

“Both the U.S. Supreme Court and the Alaska Supreme Court have struck down previous versions of Alaska Hire statutes because the State could not provide a legitimate reason justifying discrimination against nonresidents. Because the purpose of AS 36.10.150 is to economically benefit Alaska residents at the expense of nonresidents—and because it is not sufficiently tailored to the problem it seeks to address—the current version of Alaska Hire is unconstitutional and should not be enforced.

The Attorney General plans a briefing with reporters on Friday to expand on his rationale for the decision, which essentially reinforces court decisions decided long ago.

Since statehood, Alaska has enacted three resident hiring preference laws, all referred to as “Alaska Hire.”

 In 1960, the State enacted Alaska Hire for public works contracts. This was amended in 1986.

In 1972, the State enacted a second hiring preference for contracts that were “a result of” the State’s oil and gas leases. 

“Despite its popularity among some Alaskans, Alaska Hire has not fared well in the courts,” Clarkson wrote.

“The U.S. and Alaska Supreme Courts have considered the various iterations of Alaska Hire in three major cases: Hicklin v. Orbeck, Robison v. Francis, and State, By and Through Departments of Transportation and Labor v. Enserch Alaska Construction, Inc.  In each case, the court held that Alaska Hire violated either the U.S. Constitution or the Alaska Constitution.

In Hicklin v. Orbeck, the U.S. Supreme Court held that Alaska Hire violated the Privileges and Immunities Clause of the U.S. Constitution, which essentially restricts States from discriminating against out-of-state residents, because Alaska could not show that nonresidents were a “peculiar source” of the unemployment problem the statute sought to remedy.

21 COMMENTS

  1. Good! Of course it is unconstitutional. We’re all Americans right? Bound by the Constitution and Bill of Rights? If Alaska is going to separate itself from the the rule of law that we all live by, then what’s the use for statehood? I believe some people like (B.E.) think Alaska is their own little kingdom, tucked out of the way from the rest of the country, to do with and obey or disobey laws as they see fit. That’s not how it works fella.

  2. Could the same be said of the special 8(a) provisions that Alaska Native Corporations have with respect to no-bid contracts. Does this discriminate against non-native businesses? Just wondering. No, I am not being racist.

    • Dealings with “Indians” is almost exclusively a Federal matter; various forms of Indian preference have been upheld by the courts. Admittedly, buying a business in the Virginia suburbs of DC and using the 8(a) sole source preference to get federal contracts is a long way from having Indian preference for hiring an employee of the village council in a rural village but both stem from the same Constitutional authority.

  3. I have looked at the issue of local hire for a long time. Hicklin v Orbeck pretty much dismissed every logical basis for a local hire preference. But, on the other hand, the constitution protects hiring discrimination against Alaskans when we go to work in another state.

  4. Governments have fared pretty well in sustaining resident preference for government employees so long as they could meet the minima for piercing a Constitutional protection by showing a compelling government interest and a narrowly tailor remedy to remedy that interest. There have been lots of successful defenses of requiring police officers to live within the area of the police force’s jurisdiction. Alaska was successful in defending the resident pay differential in the Marine Highway System in MM&P v. Andrews back in the Eighties. I don’t think it went all the way to the USSC, but the Ninth Circuit upheld the State’s position and the Ninth isn’t noted for being friendly to Alaska.

    • Why is that? Anybody with a legal permit can fish. Those fish don’t belong to you. They belong to the state. Just like all the moose and Caribou do as well.

      • I thought that Alaska being an “owner State” meant that natural resources belong to the people. Don’t fish and wildlife fall into the category of natural resources. Doesn’t mean that fish and wildlife resources, like mineral resources, belong to the people?

  5. I wonder if this has anything to do with Hilcorp moving to have a bigger presence in AK?
    Would they be held to this Alaska hire rule?

  6. What does the Governor have to gain by requesting this opinion? Why not just let it play out in court? Why give the media this fodder? Why lose some of your labor base with a looming recall? Who the hell is running this show?

    • Union,
      You said:
      “Who the hell is running this show?”
      Well we have all been taught to “follow the money” and $1.7 million spent on the Governor’s Campaign came from mostly outside of Alaska…hence the decisions we are seeing over the last 9 months.

    • You have to wonder why they did it. All the State has to do is turn a blind eye to enforcing the clearly unconstitutional law and the usual suspects, ACLU et al. will come along and sue to set the law aside and everybody can hate on them rather than the Governor. Just look at the lefty post below where he’s claiming it is all a part of some evil capitalist conspiracy.

  7. TLP: White. Computing, Engineering, and Technology can compute of a few reasons why Alaska may not want a judge ruling.
    J
    252.222-7000 Restrictions on Employment of Personnel

    RESTRICTIONS ON EMPLOYMENT OF PERSONNEL (MAR 2000)

    (a) The Contractor shall employ, for the purpose of performing that portion of the contract work in _______________, individuals who are residents thereof and who, in the case of any craft or trade, possess or would be able to acquire promptly the necessary skills to perform the contract.

    (b) The Contractor shall insert the substance of this clause, including this paragraph (b), in each subcontract awarded under this contract.

    (End of clause)

  8. I hope people keep this in mind during the recall vote. This administration is a front for wealthy interests from the lower 48. Americans for Prosperity, Arduin and this — it’s all part of a pattern.

    • Genius, administrations of both parties have tried to pander to Alaska’s xenophobes, rednecks, and ne’er do wells with “Alaska Hire” laws. None of them have ever survived court scrutiny. The only ones that have survived is some limited ‘residents first” recruitment by governments and the State’s non-resident wage differentials.

      I know it fits paranoid leftist fantasies, but the capitalists aren’t coming to enslave you.

  9. But the Alaska Natives are not considered ‘ Indians ‘. Unlike the Indian ‘Nations’, their land is set up as Corporations.

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