Is Gov. Tim Pawlenty's wielding of his unallotment authority to balance the state budget illegal? There are both statutory and constitutional arguments that it is.

The governor's unallotment authority comes from Minnesota Statutes §16A.152. It gives him the power, once the commissioner of revenue has determined that there is a budget shortfall, to reduce spending in the state budget until revenues equal expenditures. This means refusing to spend money already appropriated or to cut the budget to ensure it is balanced. This is what unallotment is.

How broad is this unallotment authority? Previous deployment of this power by Minnesota governors has been infrequent since its adoption in 1973. When used, one if not two conditions were present. One, when a budget shortfall is discovered late into the biennial budget cycle, and two, when the Legislature is not in a position to act expeditiously, such as when it is out of session. In circumstances like this, unallotment may make sense because it gives the governor limited authority to address a budget crisis.

A basic rule of statutory interpretation
When the above two conditions are not present, as is the case with Pawlenty's proposed use here, the legality of unallotment is questionable. Thus, there are two reasons to argue that the governor's interpretation of §16A.152 is incorrect. First, it is unlikely that the original intent of the Legislature was to give the governor this broad of a power to unallot. Its original passage was to give the governor power to address small budgetary shortfalls, not make cuts that amount to major programmatic changes. Second, there is a basic rule in law regarding statutory interpretation. One should interpret laws to avoid absurd results and avoid conflicts with other laws. Here, if one accepts the governor's reading of unallotment, it would mean he alone has the power to change fiscal priorities for the state or that he could use this power to negate laws establishing statutory authorized policies. One result is absurd; the other produces a conflict in the laws.

Unallotment as the governor wishes to use it may also be unconstitutional. The governor's broad claim of unallotment authority resembles President Richard Nixon's assertion that he had the power to impound or refuse to spend money authorized by Congress. Some argued that what he did was unconstitutional in that it trampled on Congress' authority. Congress responded with the passage of the 1974 Congressional Budget and Impoundment Control Act. Minnesota Statute §16A.152 was adopted at a time when Nixon was still using impoundment, raising questions regarding whether if courts looked at it today, would it be found to be a violation of the Constitution. This is debatable. The Constitution governs relations between Congress and the president, and it may not be binding on Minnesota. However, the principle from the Nixon impoundment dispute may still apply, asking whether the governor's broad use of unallotment violates the Minnesota Constitution or the law.

In Minnesota, an explicit clause on separation
Unlike the U.S. Constitution, the Minnesota Constitution has an explicit clause that addresses separation of powers. Article III states: "The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others." One could argue that this clause protects legislative authority even more so than the federal Constitution, questioning whether unallotment as construed by the governor is permissible.

In the only case so far seeking to interpret the unallotment authority in light of Article III, the Minnesota Court of Appeals in the 2004 case Rukavina v. Pawlenty issued an exceedingly weak opinion upholding the use of unallotment as not a violation of that clause. While the court noted that "purely legislative power cannot be delegated," there are reasons to question the applicability of that precedent here because of very different facts. First, that case involved a challenge to unallotment from a special revenue fund. Second, the unallotment occurred late into a biennial budget cycle. Additionally, the reasoning in that case was weak, devoting barely a paragraph to the separations of powers issue, which was not really the major legal challenge in the case.

Were the Minnesota Supreme Court to examine the facts in the proposed use of unallotment, its constitutionality might be in doubt. One question is whether the Legislature can give the governor the broad powers he is asserting here. Besides doubting this broad assertion of unallotment is what the Legislature intended when it adopted the law in 1973, one has to ask whether the power to make the budget is "legislative power cannot be delegated."

The power to make budgets
There is no Minnesota case law stating whether the power to make the budget is a legislative function. But often courts will turn to other states for guidance when seeking to resolve novel legal issues. Here the answer is clearer. Courts in states such as California, New York, Texas, Ohio, Michigan, South Carolina, Massachusetts, Arizona, and Alaska have ruled that the power to make budgets is a legislative function. If those rulings are persuasive in interpreting Minnesota's Article III, one could argue that the assertion by the governor to interpret his unallotment authority the way he wishes usurps a purely legislative power and thus violates Article III. Perhaps unallotment authority as wielded in the past was constitutional because it was not a wholesale bypassing of legislative power, but here the governor is seeking to preempt the Legislature from acting (especially by not calling a special session) and performing its duties.

Second, the unallotment proposed here violates Minnesota Constitution Article IV, Section 23. This section outlines when a governor can veto a bill presented to him. Here one could argue that the creation of the budget is a series of bills that the governor has three days to veto. Once he chose not to veto the bills they became law. Now his decision to use unallotment amounts to a second veto. He cannot do this. No new bills are being presented to him, his three days have expired, and he does not have a second chance to veto.

Overall, while the unallotment power under Minnesota law may be legal and constitutional under certain conditions, its proposed use here may not be.

David Schultz is a Hamline University professor in St Paul, where he teaches classes in election law and government ethics.