Recent debate about the state’s decision to drop Alaska hire preferences on certain public construction projects deserves a post script.
While critics said the state administration’s decision undermined the long-standing preference, it’s just as likely that the state’s action actually preserved it for future use.
How so? By avoiding a lawsuit that could have invalidated the entire statute.
Politically, the Alaska hire law is sound. It gives the state labor commissioner the power declare “zones of underemployment” where he can to require that as many as 100 percent Alaskans, on a craft-by-craft basis, be hired on any construction projects funded entirely by state or local money. The law allows this whenever the designated zone’s unemployment rate is “substantially” higher than the national rate — whatever that means.
Legally, this law has been on shaky ground from the day it was passed. Nevertheless, the construction industry and individual workers generally have gone along with it. This differed from their approach to previous Alaska hire laws, which they successfully challenged in the courts.
In recent years, though, the entire legal basis for applying the law to urban areas of the state evaporated. The unemployment rate in Alaska’s urban areas has dropped below the national rate for the first time since governments started collecting the statistics. So the state dropped the Alaska hire preferences for projects in urban areas a few weeks ago, while keeping many of the preferences in rural areas where unemployment is still high.
Yet some want the state to somehow keep the urban preferences as well.
If the state did so, it likely would invite a lawsuit from a company or worker. Such a challenger might not confine the suit to the question of whether the law was being applied properly but might go for the jugular — the question of whether the law is constitutional in the first place.
In 1987, shortly after this law was passed, the Alaska Law Review published an analysis of its prospects. “The Legislature has again enacted a local hire law, and again Alaska courts likely will strike it down the law under either the (U.S. Constitution’s) article IV privileges and immunities clause or Alaska’s equal protection clause,” the reviewer predicted after an extensive exploration of precedents.
That reviewer’s prediction has not been borne out by events. The law has benefited resident Alaskans for decades, and continues to do so. There’s no reason to tempt the law’s fate, though, by enforcing it when it clearly doesn’t apply.
— Fairbanks Daily News-Miner,