Oklahoma Bar Journal
Government & Administrative Law Practice
Function Over Form: Oklahoma’s Errant Functionalist Separation of Powers Approach
By John Tyler Hammons
The late U.S. Supreme Court Justice Antonin Scalia once observed the true genius of the American constitutional experiment was found not in the “marvelous provisions” of the Bill of Rights but, rather, in “the structure of our government.”[1] Without a structure sufficient to “prevent the concentration of power,” those marvelous provisions become mere “parchment guarantees.”[2] Despite this warning, Oklahoma’s constitutional structure has not been enforced with a zeal Justice Scalia would admire. Stemming from the cases of In re the Application of the Oklahoma Department of Transportation, Series 2002 (ODOT I)[3] and In re the Application of the Oklahoma Department of Transportation, Series 2003 (ODOT II),[4] collectively the “ODOT bonds cases,” Oklahoma has adopted a functional, rather than formal, approach to deciding separation of powers questions. Unfortunately for liberty, this approach lacks sufficient safeguards to prevent the concentration of power.
THE CONSTITUTION’S STRUCTURAL DESIGN
The Oklahoma Constitution “expressly and inflexibly commands that the functions of government be divided into three [branches].”[5] This constitutional design was intended to prohibit each of the three branches from “arrogat[ing] to itself control over either of the others.”[6] Being “the basic principle of [Oklahoma’s] constitutional system,”[7] this design is interwoven throughout the text’s interlocking provisions: power is divided between a bicameral Legislature,[8] a plural executive under the governor,[9] and a multi-tiered judiciary.[10] Taken together, the three branches provide a structure in which governmental power is disbursed widely.
FORMALISM VS. FUNCTIONALISM
Fidelity to the separation of powers is chiefly measured by two competing theories: formalism vs. functionalism. The formalist theory is concerned with the Constitution’s textual allocation of powers to create mandatory boundaries which must be strictly enforced. A given branch may not be denied the exercise of its proper powers – nor permitted to exercise the proper powers of another branch – on account of practical considerations. By rigidly assigning power, formalism preserves clear lines of democratic accountability. The functionalist theory, by contrast, seeks to synthesize the three branches into a workable whole. Academic formulations about a given power need not be given controlling weight if practical demands for an effective state government are sufficiently compelling. By permitting a flexible allocation of power, functionalism responds to the evolving needs of the electorate.
The clash between formalism and functionalism is most visible in the struggle between the governor and the Legislature over the executive appointment power. For decades, Oklahoma adhered to a formalistic prohibition: 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 consequential for the Constitution’s structure: 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 formalism was not accidental. It reflected a deliberate constitutional 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 to preserve to the governor the “full-range of executive powers” as they existed during the territorial period.[17] Because the territorial-era precursor held the exclusive power to appoint subordinate executive officers,[18] the Constitution’s structure intended to preserve to the governor those appointment powers against legislative interference.[19] Post-statehood precedent confirmed this formalistic understanding by prohibiting the Legislature from vesting itself with the power to appoint subordinate 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 constitutionality 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 “significant interference” with the governor’s executive powers.[24] Despite finding the special legislative 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 legislative control.[26] For this reason, the court concluded this arrangement was an unconstitutional usurpation 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 boundaries 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 influence 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 application 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 power, it viewed the Legislature’s involvement in its exercise to be sufficiently limited.[30] Because its appointees to the new bond oversight 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 cooperation rather than unconstitutional usurpation.[32] Finding this degree of executive power sharing to be noncoercive, 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 produced 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 by an officer who was not subject to the control of the governor because it deemed the legislative intrusion upon the governor’s executive powers to not be an intolerable 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 constrain 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 inclusion 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 breach. This is proof that functionalism isn’t about ensuring practical 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 AND DEMOCRATIC ACCOUNTABILITY
Formalism not only prohibits one branch from aggrandizing itself, but it likewise prevents each of the branches from acquiescing to their own diminishment. For example, political incentives may tempt the governor to outsource 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 diminishing 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 superintend 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]
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 applied in a single reported case since it was announced. A recent case involving the governor’s power over state-tribal relationships underscores this shift. In Treat v. Stitt,[35] the court invalidated the governor’s attempt to unilaterally expand tribal gaming. In so holding, the court noticeably did not invoke the multi-factor test. Instead, the Treat court focused on each branch’s formal role: the Legislature makes the law while the governor carries it out.[36] The Treat case, together with various other separation of powers decisions over the previous two decades, suggests the court has quietly moved towards formalism.[37] While this apparent shift is a welcomed one, functionalism still technically governs such matters. This mixed messaging creates needless doctrinal confusion which can only be remedied by the court clearly stating its preferred approach.
PRESERVING THE CONSTITUTION’S STRUCTURAL SAFEGUARDS
As Justice Scalia rightly observed, constitutional guarantees of liberty are of little value unless secured by a governmental structure which divides power broadly. Only an adherence to formalism can preserve that division. While formalism will occasionally produce intergovernmental conflict, the Oklahoma Constitution was deliberately designed to achieve this end. “[B]y means of the inevitable friction” between the three branches, the Constitution “save[s] the people from autocracy.”[38]
If the separation of powers can be evaded in the name of efficiency, then the Constitution’s guarantees of liberty “would be at the mercy of ingenious efforts to circumvent [their] objects and to defeat [their] commands.”[39] Functionalism encourages such creative attempts rather than forestalls them. To preserve the Constitution’s structure – and the liberty it secures – the Supreme Court should express what it has long made apparent: formalism is the only constitutionally faithful approach to addressing Oklahoma’s separation of powers.
ABOUT THE AUTHOR
John Tyler Hammons is an attorney in Muskogee and a founding partner at Hammons Hamby & Price, who represents municipalities and other governmental clients. Mr. Hammons is a sixth generation Oklahoman and an enrolled citizen of the Cherokee Nation. He previously served as the 47th mayor of Muskogee, and he currently serves as the attorney general for the sovereign Kaw Nation, city attorney for multiple cities, and presides as the chief municipal judge in Muskogee.
[1] Scalia, Antonin, “Opening Statement on American Exceptionalism to the Senate Judiciary Committee,” Oct. 5, 2011. Available at: https://bit.ly/46ohw8T. Last accessed on March 3, 2026.
[2] Id.
[3] 2002 OK 74, 64 P.3d 546.
[4] 2003 OK 105, 82 P.3d 1000.
[5] State v. Lynch, 1990 OK 82, 796 P.2d 1150, 1167.
[6] Jones v. Freeman, 1943 OK 322, 146 P.2d 564, 573.
[7] In re Cty. Comm’rs of Ctys. Comprising Seventh Judicial Dist., 1980 OK 207, 98 P. 557, 561.
[8] OKLA. CONST. Art. V, §1.
[9] OKLA. CONST. Art. VI, §1.
[10] OKLA. CONST. Art. VII, §1.
[11] Because the Legislature had the exclusive right to appoint subordinate legislative officers (Riley v. State, 1914 OK 251, 141 P. 264), it follows the governor had the exclusive right to appoint subordinate executive officers as well.
[12] State v. Rowe, 1931 OK 328, ¶ 27, 300 P. 727, 730 (if the governor possessed the power to freely appoint and remove a judicial officer because he believed the judicial officer’s decision was erroneous, then the governor could use that appointment power “ad infinitum until he controlled the decision.”).
[13] The Legislature has extended its appointment powers to at least six executive agencies since 2019. The six agencies are the Office of Juvenile Affairs (2019 OSL 2), the Department of Corrections (2019 OSL 3), the Department of Mental Health (2019 OSL 4), the Health Care Authority (2019 OSL 9), the Department of Transportation (2019 OSL 10), and the Oklahoma Turnpike Authority (2023 OSL 295).
[14] OKLA. CONST., Art. IV, §2.
[15] OKLA. CONST., Art. IV, §8.
[16] Cherokee Nation v. United States Dep’t of the Interior, 2025 OK 4, ¶ 27, 564 P.3d 58, 68.
[17] Vandelay Entm’t, LLC v. Fallin, 2014 OK 109,¶ 12, 343 P.3d 1273, 1276.
[18] “The Governor shall nominate and… appoint and commission all Territorial officers.” Okla. Rev. Stat. §5975 (1893) (emphasis added). Accord. Cameron v. Parker, 1894 OK 51, ¶ 7, 38 P. 14, 21 (the governor’s appointments are an outgrowth of his duty to execute the law).
[19] Vandelay Entm’t, LLC, 2014 OK 109, ¶ 12, 343 P.3d at 1276.
[20] Tweedy v. Oklahoma Bar Association, 1981 OK 12, ¶ 9, 624 P.2d 1049, 1054. If a legislative appointee exercised power beyond those the Legislature might delegate to one of its own committees – namely initiating criminal or civil litigation on behalf of the state, adopting administrative regulations, or administering legislatively appropriated funds – then such appointment was an unconstitutional usurpation of the governor’s executive powers.
[21] The special legislative committee in question was the “Legislative Bond Oversight Commission,” which was composed of six sitting state legislators appointed by the president pro tempore of the Oklahoma Senate and the speaker of the Oklahoma House of Representatives. 62 OS §695.4 (now repealed). Although composed of sitting legislators and appointed by legislative leadership, the special legislative committee was nominally within the executive branch as the state bond advisor, a subordinate executive officer under the governor, was statutorily obligated to provide staff support to the committee. 62 OS §695.6(B) (now repealed).
[22] The Oklahoma Supreme Court has “exclusive original jurisdiction” to determine if proposed state bonds “will constitute valid obligations” of the State government. 20 OS §14.1. If approval by the Supreme Court, the validity of such bonds is “incontestable” under state law. Id.
[23] ODOT I, 2002 OK 74, ¶¶ 9; 11, 64 P.3d at 550.
[24] Id., at ¶ 12.
[25] Id., at ¶16, 64 P.3d at 551.
[26] Id., at ¶ 19, 64 P.3d at 552.
[27] Id., at ¶ 21, 64 P.3d at 552.
[28] The bond approval process invalidated in ODOT I was enacted in 1987. HB 1444 (1987 OSL 220) §91 et seq. (codified as 62 OS §695.1 et seq.). Revealingly, the Legislature seems to have known it had gone too far with the special legislative committee: in 1989, the Legislature adopted an amendment to the statute which provided that the new bond oversight board (officially the Council on Bond Oversight) would be established by operation of law should the special legislative committee be deemed unconstitutional. SB 111 (1989 OSL 374) §14 (codified as 62 OS §695.11A).
[29] 62 OS §695.11A.
[30] ODOT II, 2003 OK 105, ¶ 13, 82 P.3d 1000, 1004.
[31] Id., at ¶ 14, 82 P.3d at 1005.
[32] Id., at ¶ 15.
[33] Id., at ¶ 16.
[34] Johnston v. Conner, 1951 OK 262, ¶ 7, 205 Okla. 233, 235, 236 P.2d 987, 989.
[35] 2020 OK 64, 473 P.3d 43 (Treat I).
[36] Id., at ¶ 4, 473 P.3d at 44.
[37] The Supreme Court applied formalism in Treat v. Stitt, 2021 OK 3, 481 P.3d 240 (Treat II) (the governor cannot alter state law through executive action), Ritter v. State, 2022 OK 73, 520 P.3d 370 (the Legislature may not legislatively delegate to the governor the power to alter state law through executive action), and White v. Stitt, 2025 OK 68, 579 P.3d 636 (the Legislature may not delegate true judicial power to non-courts). In all such cases, there was a noticeable absence of functionalism’s multi-factor test.
[38] Dank v. Benson, 2000 OK 40, 5 P.3d 1088, 1091.
[39] Rowe, 1931 OK 328, ¶ 28, 300 P. at 731.
Originally published in the Oklahoma Bar Journal – OBJ 97 No. 8 (October 2026)
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.