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The judge’s ruling against Dayton’s line-item veto weakens the governor

It should come as no surprise that a Ramsey County judge ruled that Gov. Mark Dayton’s line-item veto of funding for the state Legislature violated the Minnesota Constitution. But with that decision, the respective powers of the three branches of government are reshuffled, leaving the governor in a far weaker position than before, both in the short and long term.

schultz portrait
David Schultz

Dayton’s line-item veto was at best ill-advised, at worst a foolish political gambit with enormous political and legal implications. Dayton’s use of the veto demonstrated how the Legislature had politically outmaneuvered him once again. Not willing to take the chance of another government shutdown, Dayton refused to use his veto on several of the omnibus bills, thereby throwing away his most potent weapon to force the Republicans to do what he wanted. Dayton blinked, signed the bills, and then used the line-item veto to try to force the Legislature to do what he wanted, as evidenced by the memo he sent to them describing why he did what he did. This memo would come to haunt him in the final court decision.

On weak ground

During oral arguments it was clear that the governor’s attorney was on weak ground. As I tell my law students, never make a legal argument asserting that you have unlimited discretion to act. That was essentially the governor’ position – there was no limit on the power of the governor to use the line-item veto. Unbridled discretion is never a good argument.

No surprise, then, in the ruling by the judge. Minnesota case law was clear that one branch or part of the government could not take action that would impede or prevent another constitutionally created branch of the government from performing its constitutional functions. Second, in the original court hearing and its preliminary decision a few weeks ago the judge strongly hinted that the governor would lose. Thus, from a legal perspective this opinion is not a shock or surprise.

Longer term, the implications here are interesting. Between this decision and the Brayton v. Pawlenty decision from a few years ago when the court ruled against the governor’s use of his unallotment authority to balance the budget and end the legislative session, the power of the Minnesota governor vis-a-vis the legislature is now weaker. In both cases the governor overplayed his hand and now the courts have placed limits on what the governor can do on his own. In both cases governors acted impulsively; in both cases they were ruled against. The two cases limit the constitutional powers of the governor.

Legislature and courts strengthened

At the same time, both of the cases strengthen both the Legislature and the courts. In the case of the Legislature, it is stronger as a result of the governor’s constitutional wings being clipped; it emboldens them to act and take more chances in the future. The judiciary is stronger because it yet again became the final arbiter of who has power and how Minnesota government works. Not only does this decision reinforce the notion that the Minnesota courts get the final say on what the Minnesota Constitution means, but with this decision they got to decide how to allocate political power in Minnesota. This decision redrew the lines of separation of powers in Minnesota.

Short term, Dayton now is even weaker going into his last year than he was before, and Speaker of the House Kurt Daudt even stronger, thereby enhancing his status as a gubernatorial candidate. The decision has huge implications for the 2018 governor’s race. Notice how Attorney General Lori Swanson stayed out of this case – she was smart politically not to defend the governor in a case she must have known he would lose.

DFL failed the governor

Finally, notice how the DFL legislators sold out the governor. Dayton’s use of the line-item veto was also a result of the Republicans’ flagrant violation of the single-subject clause in the state Constitution. Dayton could not argue that point in his defense because he signed the bills he objected to. However, if the Democrats had raised a single-subject objection to the bills in a separate case, it would have been possible for court to join the line-item and single-subject arguments together.

Historically, the two clauses have common histories in terms of their goal in policing legislative corruption and abuses. Yet while Sen. John Marty tried to get support for this challenge, his DFL colleagues failed to support him, demonstrating how much the political and legal interests of DFL legislators and Dayton had departed. What will be interesting to see is the political fallout of this failure to support the governor, both in the remainder of Dayton’s term and in how it plays out for the 2018 legislative and gubernatorial elections.

David Schultz is a Hamline University professor of political science. His latest book is “Presidential Swing States: Why Only Ten Matter.”  He blogs at Schultz’s Take, where a version of this piece first appeared.   


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Comments (7)

  1. Submitted by Frank Phelan on 07/20/2017 - 12:28 pm.

    Tit For Tat

    What about the legislature defunding the State by inserting language into a bill that, were it to be vetoed, would not allow the Revenue Dept. to collect revenue? That seems like defunding the executive branch, if not the entire government. I wonder if Dayton should have, or still could, challenge that.

    Dayton and the DFL legislators call to mind the Will Rogers quip that he didn’t belong to an organized political party, he was a Democrat.

    • Submitted by Michael Hess on 07/20/2017 - 01:00 pm.

      What he could have done….

      If he objected to that provision that funded the revenue department ( which I think is technically not the whole executive branch) what he should have done was veto the legislation, and then sue the legislature for violating the single issue clause and petitioned the court as they did in this circumstance for operational funds while the court reviewed if that bill was legal.

      Instead he signed it, accepting it, wrote a long incriminatory letter about how mad he was, and that he was taking his revenge elsewhere, so making 2 if not 3 large mistakes in his negotiating position.

  2. Submitted by Cameron Parkhurst on 07/20/2017 - 01:33 pm.

    Could the Courts sue claiming they are inadequately funded…

    By the legislature and executive branch? So the executive branch cannot defund the legislative branch. How does it work then when the judiciary comes to the legislature for more money and does not get it? Isn’t that the same concept if the amount allocated by the legislature to the judiciary is inadequate? I understand that we can argue about adequate levels of funding.

    • Submitted by Bob Petersen on 07/21/2017 - 07:11 am.

      It’s to the degree of being defunded

      What Dayton did was entirely defund one branch of government. This is where the court said he violated the state Constitution. If there were only partial funding, that would not. It would hamper that branch’s effectiveness but not be unconstitutional.
      What it basically is set up as the Legislature funds X, Y, and Z dollars for each of the branches of government and sends to the governor for signing into law or to veto. For the Legislative and Judicial branches, it primarily is just one budget item I believe. So it’s all or nothing.
      What many forget is that the executive has numerous parts to it with all of the state’s programs. That is where most of the line item stuff comes into play and where the Legislature had the ability to defund a part of the executive as it did because it’s only a small part of the executive.

  3. Submitted by Steve Titterud on 07/20/2017 - 04:30 pm.

    Is the “single-subject” rule voided now by a Dayton

    …precedent ?? I admit to some confusion, as I may conflate “single-subject” with the objections I’ve seen made, and sustained, when someone tries to sneak in language or an amendment which has little or nothing to do with the aim of a bill – i.e., not “germane”.

    Are these two, “single-subject” and “germane” the same issue ??

    And further, when the legislature passes and a governor signs a bill which has elements not “germane” or not “single-subject”, is the rule extinguished ??

    Maybe Prof. Schulz or others here could help clarify this matter.

    • Submitted by Cameron Parkhurst on 07/20/2017 - 04:55 pm.

      Distinguishable cases

      I have not fully read the decision, but if decided on the basis that Governor can not defund the legislative branch, my take is that the “single-subject” rule is still available to use grounds for objecting to legislation. As a lawyer, I would argue that the facts in the current case being decided are significantly different from a “single-subject” objection and that the finding here has no application to a “single-subject” claim. But, we need to wait and see what the Minnesota Supreme Court has to say.

  4. Submitted by Tom Anderson on 07/20/2017 - 11:27 pm.

    I disagree

    “The two cases limit the constitutional powers of the governor.”
    Actually, the two cases don’t change anything, the constitution itself places limits on the Governor which the court merely pointed out those limits.
    “Not only does this decision reinforce the notion that the Minnesota courts get the final say on what the Minnesota Constitution means, but with this decision they got to decide how to allocate political power in Minnesota.”
    Yes, the court does get the final say as to what is constitutional (that is it’s purpose), but they don’t allocate political power. The court may point out the separation of powers and where the lines are, but according to the constitution, not according to politics.

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