The Oklahoma Bar Journal October 2026

to preserve to the governor the “full-range of executive pow ers” as they existed during the territorial period. 17 Because the territorial-era precursor held the exclusive power to appoint sub ordinate executive officers, 18 the Constitution’s structure intended to preserve to the governor those appointment powers against legis lative interference. 19 Post-statehood precedent confirmed this formal istic understanding by prohibiting the Legislature from vesting itself with the power to appoint subor dinate executive officers. 20 THE ODOT BONDS CASES This changed when the Supreme Court enthusiastically embraced functionalism in the ODOT bonds cases. In 2002, the Oklahoma Department of Transportation (ODOT) sought to issue bonds to fund the governor’s highway construction priorities. To issue such bonds, ODOT first had to obtain approval from a special legislative committee appointed exclusively by the Legislature. 21 After receiving such approval, ODOT filed an application with the Supreme Court for pre-issuance validation of the proposed bonds. 22 FROM FORMAL BOUNDARIES TO FUNCTIONAL BALANCING The Supreme Court expressly rejected a “formalistic” approach in favor of a “more practical” method when assessing the consti tutionality of the special legislative committee’s involvement in the bond approval process. 23 Invoking efficiency needs, the ODOT I court developed a multi-factor test to determine if the Legislature’s involvement resulted in a “sig nificant interference” with the governor’s executive powers. 24

Despite finding the special legis lative committee was exercising executive power, the ODOT I court was seemingly unbothered by this fact. Instead, it determined the special legislative committee to be a problem of degree rather than of kind. 25 Because it held unqualified veto power over the issuance of the bonds, the special legislative committee subjected the governor’s executive powers to complete legis lative control. 26 For this reason, the court concluded this arrangement was an unconstitutional usur pation of executive power by the Legislature and rejected ODOT’s request to validate the bonds. 27 Although reaching the correct conclusion, the ODOT I court’s analysis shifted the doctrinal inquiry in a dangerous direction. By replacing clear structural bound aries with a multi-factor inquiry, the court invited efforts to evade those boundaries. The Legislature responded to this invitation by establishing a new bond oversight board designed to satisfy ODOT I while preserving legislative influ ence over executive functions. 28 Unlike the special legislative committee, which was composed entirely of legislative appointees, the new bond oversight board included three members appointed by the governor and two members appointed by the Legislature. 29 With the new board in place, ODOT sought its approval for a new series of bonds and, upon receiving it, filed an applica tion with the Supreme Court for pre-issuance validation in 2003. A unanimous Supreme Court upheld the restructured bond oversight board under functionalism’s multi-factor test. Although the court again recognized the power being exercised was executive

accountability. The functionalist theory, by contrast, seeks to syn thesize the three branches into a workable whole. Academic formu lations about a given power need not be given controlling weight if practical demands for an effective state government are sufficiently compelling. By permitting a flex ible allocation of power, function alism responds to the evolving needs of the electorate. The clash between formalism and functionalism is most visi ble in the struggle between the governor and the Legislature over the executive appointment power. For decades, Oklahoma adhered to a formalistic prohibi tion: absent express constitutional authority, the power to appoint subordinate executive officers was exclusive to the governor. 11 This is because the executive appointment power is uniquely consequen tial for the Constitution’s struc ture: it determines who exercises every other power of the executive branch. 12 Functionalism, however, has enabled growing legislative involvement in the executive appointment process. 13 Oklahoma’s longstanding executive appointments for malism was not accidental. It reflected a deliberate constitu tional design made clear by the historical context surrounding the Constitution’s ratification. The Constitution confers upon the governor the “supreme executive power” 14 and charges them with “caus[ing] the laws of the State to be faithfully executed.” 15 These provisions create a “constitutional hierarchy within the executive branch,” with the governor “at its top.” 16 Revealingly, this structure did not exist within a historical vacuum. Rather, it was intended

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL