A brief, filed Friday on behalf of the Minnesota House of Representatives, argues that Gov. Pawlenty’s use of his unallotment powers at the end of the 2009 legislative session were illegal and unconstitutional.

The brief, written by Joel Michael of the House Research Department, focuses strenuously on the argument that while unallotment is possible when there is an unanticipated revenue shortfall during a biennium, the shortfall on which Gov. Pawlenty based his unallotment actions were anticipated, known and, in fact, caused by Pawlenty’s own decision to veto a tax bill that would have prevented the shortfall, at least at the time that he vetoed it.

The amicus (or friend of the court) brief was filed Friday with Ramsey County Judge Kathleen Gearin who is considering a request for a temporary restraining order (TRO) that would overrule a portion of the uanallotments. The House Rules Committee voted to file the brief Monday morning, just as Gearin was preparing to hear arguments on the TRO matter. Gearin has not ruled on the TRO nor said when she will, but it’s quite likely that she was holding off, at least partly, so she could hear from the House on the matter.

The House's entry into the case may also raise the stakes, at least politically, around Attorney General Lori Swanson's decision to represent Pawlenty in the unallotment case. Her office has pointed out that previous attorneys general have represented previous governors in previous unallotment cases and that the AG is expected to represent the governor. The amicus brief does not make the Legislature a direct party in the case, although it could be viewed as a step in that direction. If the argument ever becomes a  direct one between two branches of the state government, it will be awkward for the AG to be on one side of the case.

The brief, in brief

Michael’s brief cuts to the heart of the widespread outrage among DFL legislators at what they viewed as an unconstitutional power grab by Pawlenty so that he could balance the budget without signing into law any new taxes.

The brief focuses closely on the issue what the 1939 statute, which gave Minnesota governors the unusual power of unallotment, meant when it said that the power is triggered when a determination is made that “probable receipts for the general fund will be less than anticipated.”

Because of the bad economy, each of several revenue projections heading into the 2009 session showed less revenue than the previous projection. But when the Legislature passed the final spending and tax bills, they were operating on the then-current February 2009 revenue estimate. If all of those bills had been signed, the budget would have then been balanced (although the revenue picture has continued to deteriorate since then and the state is now preparing to borrow money in order to pay its bills.)

The most immediate cause of the imbalance when Pawlenty announced his intention to unallot was therefore Pawlenty’s own decision to veto the tax bill. (That's a power he unquestionably has.) Furthermore, in designing his unallotments, Pawlenty continued to rely on the February revenue estimate.

Pawlenty claims there was an unanticipated revenue shortfall when he acted, because the February estimate was lower than the previous November 2008 forecast. The brief argues the shortfall cannot be called unanticipated because the Legislature had the up-to-date forecast when it passed bills that would have created a balanced budget and Pawlenty relied on the very same forecast in deciding how much to unallot.

If the courts allow Pawlenty’s unallotments to stand, they will have transferred unprecedented power over budget-making from the Legislature to the governor, in violation of the separation of powers established by the Minnesota Constitution, the brief argues.

One simple illustration is given in the brief of how the balance would be altered. The governor is empowered to veto appropriations with which he disagrees, but the Legislature is empowered to override those vetoes. This didn’t happen in 2009, but suppose it did. If the governor has the power he has asserted, he would only have to unallot the appropriation which would have the effect of overriding the override. Thus the final word on the matter would have been transferred from the Legislature to the governor.

The full brief is here for those who would like it. Below are several excerpts for those who want more than my little summary but are not willing to read a 34-page brief.

EXCERPTS:

Minnesota Statutes Section 16A.152, subdivision 4 (the “unallotment law” or the “unallotment statute”) grants authority to the executive branch to reduce allotments of appropriations to respond to an unanticipated reduction in state revenues and a resulting state budget deficit. This extraordinary authority is intended to address financial emergencies in the state budget.

Because the unallotment law grants crucial budget powers to the executive, the House has a strong interest in ensuring that the unallotment law not be used (1) in circumstances where it does not apply or (2) to rewrite, modify or subvert the budget priorities that have been enacted into law pursuant to Article IV of the Constitution. Moreover, if the unallotment law authorizes the executive to take the actions it has in this case, the House’s legislative powers related to enacting the state budget may be substantially impaired or subverted.

...

The language of the statute requires the commissioner to determine that probable receipts will be “less than anticipated” before the unallotment power is triggered. This plainly has not occurred, since Defendants and the legislature have used exactly the same estimate of probable receipts - the February 2009 MMB revenue forecast - in preparing and enacting the state budget and in imposing Defendants’ unallotment.

 Nor can Defendants‟ apparent approach of using forecasts of earlier reductions (i.e., the forecast drop in revenues between the November 2008 and February 2009 forecasts) be used to satisfy the statute; the baseline or reference to measure when revenues are “less than anticipated” must mean the numbers used to write the budget, not some earlier forecast.

 Under any reasonable construction of the language, probable receipts cannot be less than anticipated if the same amount of receipts was used to write the budget and to make the unallotments. To interpret the law otherwise would require the Court to grant the executive unfettered discretion to determine when unallotment may be used. Doing so is not legally justified or consistent with constitutional principles.

...

First, the only reasonable interpretation of the meaning of “anticipated” receipts under the statute are the receipts that the legislature and executive branches used to write the budget. The statute does not explicitly define or state how to determine “anticipated” receipts (e.g., by reference to a mandated revenue forecast or something similarly specific) or say who did the anticipating or when it was done. This likely was simply because the 1939 legislature thought it was obvious - i.e., it must be the amount that the legislature (and governor) used to enact the budget or appropriations, which can no long be funded because revenues are now expected to drop. Certainly neither the legislature nor defendants were anticipating the level of receipts in the November 2008 forecast by March (when the Governor‟s supplemental budget was submitted) or in May when the legislative budget bills were enacted. Both of those actions were based on the February forecast. Earlier forecasts of revenues are not relevant to budget-setting.

Defendants‟ position does not follow the literal or plain language of the law. Rather, their interpretation reads a great deal of content into the word “anticipated” - e.g., it implicitly reads the statute to mean what the executive anticipated (the legislature never enacts a biennial budget based on the November forecast) at some prior point in time that the executive chooses. In effect, Defendants are arguing for granting vast discretion to the executive branch in deciding when it can use the unallotment power. The statute should not be read in such an expansive manner, given the sweeping nature of the power (no standards or restrictions as to which spending may be cut or by how much and, according to Defendants, the ability to rewrite the terms of statutory programs in effectuating those reductions). The Court should carefully consider whether it wants to grant the executive branch such sweeping budget powers.

...

if the law authorizes defendants‟ actions, it would even permit the executive to effectively overturn a duly enacted appropriation that was re-passed over an item veto by the governor.

Sarah Chayes, who has lived in Afghanistan since 2001, spoke at the Westminster Town Hall Forum at noon Thursday. Her talk was smart but felt like a reminder of how difficult it is for us, who don't live there, to think clearly about a mess like the tangled U.S.-Nato role in Afghanistan. It also left me wondering whether Chayes was thinking clearly about the balance of costs and benefits to the United States of burrowing in deeper to the country she has adopted.

Chayes started out in mythbuster mode, and I realized that I subscribed to most of the myths she was busting. Here are three:

• that Afghans don't like foreigners tromping around their country
• that Afghanistan isn't so much a nation as an ungovernable collection of tribes and
• that corruption is endemic to the Afghan government.

None of these are true, said Chayes, who originally came to Afghanistan as an NPR correspondent, left journalism to stay and try to help the country, founded a co-op that has something to with agriculture and something to do with soap-making, and now serves as an adviser to the U.S.-led Nato forces.  (Chayes does not, by the way, think that the U.S. military should pull out.)

When she first arrived, in the aftermath of the U.S. invasion, the Afghans she met were not xenophobic. On the contrary, she said, they enthusiastically welcomed the international community, realizing that their country needed a lot of help to overcome the previous decades of Soviet occupation, civil war and Taliban rule.

What makes Afghanistan appear xenophobic to some, she said, is that they are unhappy with what has happened since the multinational troops and the foreign aid workers have arrived.

That unhappiness, as Chayes presented it, has a lot to do with the deeply corrupt government that has run Afghanistan since that time. Since the onset of the Karzai government occurred under U.S. auspices, and since the corruption consists largely of the looting by corrupt government officials of international development aid that is supposed to be helping Afghans to a better life, Afghans associate the international community somewhat with the corruption.

Afghans are, in fact, deeply outraged by the government-by-bribery under which they live, which Chayes takes as evidence that this level of corruption is not what Afghans consider normal. In fact, she said, anger over the corruption is feeding support for the anti-government insurgency.

Afghans do have tribal loyalties, Chayes said, but they also have an Afghan national identity. The Afghan nation, she said, was founded in 1747 which, she pointed out, makes it a bit older than the United States. Afghans do not find the tension between their tribal and their national identity to be irreconciliable, said Chayes.

Chayes does not subscribe to the view that U.S. troops have to stay in Afghanistan because the return of the Taliban might somehow make it likelier that the Pakistani nukes will fall into terrorist hands. But she nonetheless thinks the West has to make a success of its project in Afghanistan. Why? She said the struggle with Al Qaida is not about control of territory. It is a war of ideas or perhaps two competing visions of the best way forward for a people like the Afghans. America and the West cannot afford to have its vision be run out of town, Chayes beliees.

I would like to hear more about how this works in Chayes' thinking. But I am concerned that taking on such an analysis would open the United States and its alllies to perpetual wars and occupations and unlimited spending in blood and treasure.

Good Thursday morning, fellow seekers of wisdom and truth,

Today is the 146^th anniversary of the Gettysburg Address. Or perhaps I should say that President Lincoln’s great speech was brought forth, upon this date, seven score and six years ago.

It’s amazing that Lincoln’s hauntingly poetical, breathtakingly brief remarks, dedicating a cemetery, have become, by many miles, the most famous speech in U.S. history.

I love to point out - by way of contrasting those times with these times - that Lincoln’s three paragraphs, written without a professional speechwriter (although Lincoln worked hard on the speech and had help, didn’t jot it down on the back of an envelope on the train up to Pennsylvania) was the only speech of any consequence that Lincoln gave during his entire presidency, other than his two inaugural addresses.

(If you’re wondering, between the presidencies of Thomas Jefferson and Woodrow Wilson, the State of the Union message was a written document delivered to Congress, not a speech. And, although Lincoln was successfully re-elected in 1864, presidential candidates in those days did not make campaign speeches.)

Scholars of the speech often concentrate on Lincoln’s rhetorical decision, at Gettysburg, to base his justification for the Civil War on the promise of the Declaration of Independence, rather than anything in the Constitution. (Four score and seven years ago is a clear reference to 1776, not to 1789, and the reference to the “proposition that all men are created equal” is all Declarational, obviously not Constitutional, since the Constitution protected slavery and counted a slave as the equivalent of three-fifths of a person.)

I used to be puzzled by Lincoln’s claim that the Civil War was a war to test whether a nation like ours could “long endure.” Couldn’t the United States, at least the northern states, had endured without the southern states? I think it could have and would have and might well have thrived.

I used to really annoy people by suggesting that Lincoln’s insistence that states could not secede was illogical. The states joined the Union voluntarily; let’s say when they decided to ratify the Constitution in 1787-90. Why could some of them not reverse the process by unratifying it, as the Confederate States did, at special conventions called for that purpose? (The slavery issue complicates the morality of the question, but as a matter of history, the ratifications were the work of white male voters, just as the unratifications were.) You can get upset with me for “justifying” secession, as my friends have done over the years, but the argument isn’t that bad.

My mature understanding of Lincoln’s allusion to the Civil War as something that tested whether such a nation could “long endure” is something like this:

If we are going to have a democratically elected national government, even one that governs a federation of semi-sovereign states, the national government must be able to govern, at least in the areas of its delegated powers. If the states can opt out of the laws they don’t like or, especially, drop out of the entire country because of federal laws they don’t like, that democratic republican form of government cannot “long endure.”

Is this true? Is this absolutely true as a technical matter? I still don’t know. Since the 1860s, many other countries have created federations and subsequently broken them up. The United States was more than content to see the Soviet Union enter the dustbin of history, turning from one nation into 15. Yugoslavia. Czechoslovakia. The United States has actually fomented secessions (Panama from Colombia to help Teddy Roosevelt build the canal. In the Civil War itself, the North even welcomed the de facto secession of West Virginia from Virginia for Civil War reasons.)

 The list of secessions and secession movements is long and growing, but the analogies to the U.S.A. vs. the Confederate States of America are imperfect. The Czechs and Slovaks went their separate ways with a nice, peaceful vote and all seems to have gone well. The breakup of Yugoslavia a handful of ugly conflicts.

I get a headache trying to figure out what the rules should be. I don’t for a second doubt the sincerity of Lincoln’s conviction that the secessions he fought to prevent were vital to the experiment of democratic republicanism.

What do you think?

By the way, here's a strange, funny Minnesota connection to the great speech that I came upon reading Garry Wills’ “Lincoln At Gettysburg: The words that remade America.” Alexander Ramsey, who had been governor of the brand-new state of Minnesota when the war started and had been the first governor in the nation to send troops when Lincoln asked for them 1861 (and that regiment, the First Minnesota Volunteers, had fought and died heroically and in staggering numbers (82 percent of the regiment killed or wounded that day) at the battle of Gettysburg), wanted to attend the dedication of the battlefield. He left a week early, but in those days, and with the demands that the war imposed on the railroad system, Ramsey got stranded and missed the event and the big short speech by the great tall president.

Both the NYTimes and the WashPost quote Harry Reid saying that he's on the verge of bringing the Senate version of the health insurance bill to the floor. But the stories are almost mirror opposites in terms of their underlying optimism/pessimism about what this means for the bill.

The Post is the optimistic version. Reid has decided not to go the reconciliation route (a bit of procedural trickery that would get around the need for a filibuster-proof 60 votes). And he says he's got an excellent CBO score. And he's "cautiously optimistic" that he's got the 60 votes to bring it to the floor. If you're not reading carefully, you could take that to mean he has a filibuster-proof majority behind the bill, but it's not even close to that. He's only talking about the votes to get the bill onto the floor to start the debate. The really big cloture vote comes at the other end of the debate, after all amendments, a vote to shut down the expected Republican filibuster and vote on final passage of the bill.

The Times piece makes clear that Reid has three members of his own caucus (Dem. Sens. Blanche Lincoln of Ark., Mary Landrieu (Louisiana) and Ben Nelson (Nebraska) who are still not even sure they want to allow the vote to come to the floor for debate.

Congress expert Kathryn Pearson of the U of M says the whole deal is more evidence of the still growing hyper-partisanship of the atmosphere in Congress and of the still relatively new willingness of whichever party is in the minority to use the filibuster routinely to block action.

A political newcomer and a second-time Dem candidate recently announced as candidates for Congress.

Dr. Maureen Hackett, 48, of Minnetonka, a psychiatrist and Air Force vet, will seek the Dem nomination to challenge first-term incumbent Republican U.S. Rep. Erik Paulsen in the west suburban Third District. Here's her campaign website. She is the only announced candidate for the Dem nomination. Jim Meffert, 42, of Edina, a lobbyist for the Minnesota Optometric Association, has filed papers to form a committee but hasn't publicly announced a run. But he is definitely in. Meffert will also be a first-time candidate.

State Sen. Terri Bonoff (DFL-Minnetonka), who lost a bid for the DFL endorsement for the seat in 2008, has been considering trying again and has still not finally decided whether to get in.

In the south suburban Second District, Dan Powers, 45, of Burnsville, a construction contractor, will seek the Dem nomination to challenge four-term Repub incumbent John Kline. Powers sought the Dem endorsement for the seat in 2008 but dropped out of the race in favor of the eventual nominee, Steve Sarvi. Powers also lost a race for Burnsville City Council in 2002.