The Oklahoma Bar Journal October 2026

breach. This is proof that function alism isn’t about ensuring practi cal accommodation for an effective government but is, instead, about concealing one branch’s claims for consolidating power. In this regard, formalism constrains the governor no less than it does the Legislature: it forbids all three branches from even attempting to amass extraconstitutional power. Formalism not only prohibits one branch from aggrandizing itself, but it likewise prevents each of the branches from acquiesc ing to their own diminishment. For example, political incentives may tempt the governor to out source unpopular decisions to subordinate executive officers outside of his control in order to avoid democratic accountability. Formalism prohibits this kind of constitutional malpractice. The governor voluntarily diminish ing their own executive powers weakens democratic oversight of the unelected state bureaucracy. The Constitution assigns to the governor alone the duty to execute the law, and this responsibility carries with it the burden to super intend all subordinate executive officers. Should those officers fail to perform their lawful duties, it is the obligation of the governor, as the chief executive, to ensure those duties are fulfilled. 34 FORMALISM AND DEMOCRATIC ACCOUNTABILITY

by an officer who was not sub ject to the control of the governor because it deemed the legislative intrusion upon the governor’s executive powers to not be an intol erable one. However, as formalism correctly instructs, the true issue is not how invasive the intrusion may be but, instead, is whether that intrusion occurs at all. By emphasizing the degree of intrusion instead of its existence, functionalism does not con strain encroachment but, rather, it incentivizes it. Consider how this approach would allow the governor to amass non-executive power. Could the governor assign his general counsel to vote alongside a three-judge panel of the Court of Civil Appeals as it decided cases? Functionalism would say yes: because the governor’s lawyer would lack voting control, his inclu sion would necessarily be deemed mere cooperation rather than usurpation. However, the very act of placing one of the governor’s agents inside a judicial decision-making body is an obvious constitutional

power, it viewed the Legislature’s involvement in its exercise to be sufficiently limited. 30 Because its appointees to the new bond over sight board lacked majority voting control, the Legislature could not block the governor’s wishes. 31 This dynamic caused the ODOT II court to characterize the legislative appointments as allowable cooper ation rather than unconstitutional usurpation. 32 Finding this degree of executive power sharing to be non coercive, the ODOT II court found no separation of powers violation and approved the issuance of the proposed bonds. 33 THE PROBLEM OF INCREMENTAL INTRUSION Functionalism not only pro duced the incorrect result in ODOT II , but its underlying premise is incompatible with a constitutional structure which purposely divides power. The ODOT bonds cases do not deny the power exercised by the legislative appointees was executive power. Functionalism allowed that power to be exercised

A QUIET RETURN TO FORMALISM

In the two decades since the announcement of the ODOT bonds cases, the Supreme Court has largely ignored them; the multi-factor test has not been

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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