Supreme Court asks Pawlenty’s unallotment lawyers tough questions

Full video of the Minnesota Supreme Court unallotment oral arguments, courtesy of The UpTake.

The Minnesota Supreme Court roughed up Gov. Tim Pawlenty’s side in the unallotment case Monday morning.

In deference to the importance of the case the court allowed the arguments to run half an hour over the allotted time. The oral arguments are the last public step before the justices will rule in the case. (By tradition, they don’t even begin to discuss it among themselves until after the arguments. After the oral arguments adjourned at 10:30 a.m., they retreated from the public chamber to begin doing so.) There is no way to speculate intelligently on when they will rule.

As far as how they will rule, they left behind plenty of clues. It would be foolish to infer how they are going to rule based on the questions they asked at oral arguments, but it would also be willful blindness not to notice which side got the tougher questions, including from Chief Justice Eric Magnuson, who took the lead in the questioning all morning.

Magnuson interrupted Pawlenty’s counsel, Patrick Robben, a few seconds after Robben started talking. Magnuson asked whether the unallotment statute should be viewed as a delegation of the Legislature’s appropriation power or a codification of the governor’s power to spend the money appropriated by the Legislature. It turned out to be the top question on Magnuson’s mind and he asked it of all three lawyers who spoke. Robben, who may not have anticipated the question, said it was a delegation of authority.

Why does this matter? Appropriating state funds is a purely legislative power. It cannot be delegated to another branch of the government, and if the Legislature did delegate it in the unallotment statute, then the statute is probably unconstitutional. (Magnuson didn’t say that, but it seems to follow.)

When his turn came, Solicitor General Alan Gilbert (Robben’s co-counsel on the Pawlenty side of the case) got the same question, and he fudged, perhaps trying to fix Robben’s answer. Gilbert took neither of the choices Magnuson offered him. He said the unallotment statute did not delegate appropriation power but delegated authority to the governor for the purpose of preventing a fiscal crisis and balancing the budget.

Magnuson’s second question, related to the first, was perhaps the key to the discussion of the entire morning: What obligation did the governor have, when unallotting, to carry out the intent of the Legislature when it enacted the appropriations?

If you want to understand the case, you need to think about that one. Magnuson and Justice Paul Anderson raised it several times in various forms. As Anderson phrased it (I believe he was borrowing this language from a previous court ruling), when the Legislature passes appropriation bills, it is deciding which policies are “worthy of pursuit and priority.”

The governor’s job is to implement those decisions through the spending power. But if unallotment gives the governor the power to delete funding from some programs, and even eliminate funding for entire programs, while leaving others untouched, then the governor can — and in 2009 arguably did — substitute his judgment for the Legislature’s about which policies are worth pursuing and funding.

The plaintiffs in this particular lawsuit are recipients of a state subsidy for people who are both poor and sick and who have doctor-certified needs for particular diets to preserve their health. In his unallotments last year, Pawlenty deleted all funding for those subsidies, effective last November. (The program’s funding was preserved, at least temporarily, by the lower court ruling that Pawlenty’s unallotment had exceeded his authority. That ruling led to the appeal by Pawlenty and Monday’s arguments.)

In a case like the dietary unallotment, a program that the Legislature deemed worthy of funding, was not just modified. It was eliminated. Such instances, Magnuson said, amount to the “complete elimination” of one of the Legislature’s judgments about “who should get what and when.”

If the governor’s only role as an unallotter was to square the spending bills with a new, unexpectedly lower level of revenues, and if he wanted to do it in a way that respected the Legislature’s priorities, he could, for example, cut every appropriation 10 percent across the board, Magnuson hypothesized. But Pawlenty didn’t do that. He exercised what Magnuson called “subjective judgments” that substituted his spending priorities for the Legislature’s. “He said, ‘I’m picking this and I’m not picking this,’” Magnuson paraphrased.

In doing so, said Justice Helen Meyer, the governor “by definition, [is] not giving full effect to a law passed by the Legislature.” Instead, the governor is “deciding which laws to give full effect to.”

Meyer constructed a hypothetical to ask the Pawlenty legal team whether there was any limit to the governor’s discretion over funding decisions. Suppose the whole budget was $100 and was divided into equal thirds between education, transportation and public safety spending. Suppose halfway through the biennium a 9/11 type event occurred that caused a truly unanticipated shortfall in state revenue, let’s say cutting state revenue in half, and triggering the governor’s unallotment power. Is the governor’s discretion so great that he could zero out the school budgets entirely in order to preserve as much as possible in the other two spending categories?

Gilbert said that yes, in theory, the governor could do that.

Justice Alan Page, who spoke seldom Monday but whose questions were all tough on the Pawlenty side, asked whether there was anything in the unallotment statute or anywhere else that would prevent the governor from encroaching on the power of the Legislature.

Justice Lorie Gildea, who came across Monday as perhaps the justice most favorable to the Pawlenty side of the case, said that there were at least some standards in the law to guide the governor.

Gildea offered, in a sense, her own answer to Magnuson’s opening question. Unallotment occurs in an area between appropriating and spending, she said, an area that is neither a completely Legislature nor a completely executive function.

How to decide the case?

The Supremes will decide the case either on a statutory or a constitutional basis, or perhaps one can imagine some combination thereof. If the problem is that the statute transfers legislative authority to the executive branch and doesn’t provide enough guidance to prevent him from essentially making new laws, that seems to be a constitutional defect in the law that could cause it to be struck down.

But several justices warned that the court always starts such an analysis assuming that a statute is constitutional.

If the court decides the question on a statutory basis, Monday’s arguments suggested, it will revolve around the word “anticipated” in the statute.

The statute says that the unallotment power is triggered by a finding that state revenues will be “less than anticipated.” In 2009, the February revenue forecast showed a big drop in revenues and a big deficit ahead, but that was in February, before the Legislature had made its budget. Pawlenty had the benefit of that forecast in preparing his own budget. The anti-unallotment side of the case argues that unallotments announced in May, as the Legislature was adjourning, cannot be deemed unanticipated if the projected revenue shortfall has been known since February.

The Pawlenty side has argued that a continuing decline of the state revenue picture after February — although it wasn’t contained in a full-fledged new forecast — was enough to trigger the unallotment power.

But Justice Paul Anderson pointed out that the $2.7 billion Pawlenty unallotted in May was the same amount he would have unallotted if he had relied on the February forecast. Magnuson added that in February, the official forecast called for the state to collect $30.7 billion in revenues for the biennium, and in May, when Pawlenty announced his unallotments, the forecast still called for $30.7 billion. So, for some of the justices, it would seem to be possible that they could rule that the statute is constitutional but that Pawlenty violated it by unallotting without having an unanticipated shortfall to trigger the power.

The anti-unallotment lawyer

When the turn came for Galen Robinson, the legal aid lawyer representing the dietary supplement recipients (and therefore the lawyer for the anti-unallotment side), the justices asked whether he was fundamentally making a constitutional or a statutory argument. As he has from the beginning, he declined to make a clear choice, saying that Pawlenty’s 2009 unallotments were unconstitutional. If those complied with the statute, then the statute must be unconstitutional. If those violated the statute, then they can be invalidated on statutory grounds and perhaps the statute is constitutional.  

Justice Christopher Dietzen, whose questions were generally more sympathetic to the Pawlenty side’s arguments, took on the “unanticipated” problem, asking Robinson whether economic forecasting is such a complex and technical task that the court must defer to the governor’s chief of budgetary matters to decide whether revenue is declining in between official forecasts.

Robinson said no, the Pawlenty administration should have waited for the next official forecasts in November of 2009 and February of 2010, and if those had shown a new shortfall, the administration could address those shortfalls with the 2010 Legislature.

Magnuson asked what obligation did the governor have to keep spending according to the appropriation bills even if it became clear that he was “spending the state into deficit.” Robinson said the only real requirement is to balance the budget by the end of the biennium, which could be in the legislative session in the second year of the biennium.

Magnuson mused that it might not be wise to keep writing checks against an empty checkbook.

Solicitor General Gilbert also cautioned the court that it was wading into a political issue. This is a reference to the “political question” doctrine, according to which the courts should not interfere in fights between the more political executive and legislative branches, but should allow those branches to fight it out or leave it for the voters to decide in future elections.

Magnuson was downright dismissive of that warning, saying the political issue “doesn’t concern me.” The voters will certainly decide some of these issues going forward, but the court is left to decide the retrospective question of the 2009 unallotments.

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Comments (15)

  1. Submitted by Bernice Vetsch on 03/15/2010 - 04:52 pm.

    About a billion dollars a year in revenue was lost to Minnesota because of the governor’s refusal to roll back the 1999-2000 tax cuts that created the loss.

    Is this loss considered merely “political” and therefore not to be considered by the Court, or will the justices take into account that this $8 billion loss was deliberate? When does the common good trump ideology?

  2. Submitted by Erich Russell on 03/15/2010 - 05:32 pm.

    Nice summary. I listened to the whole argument as well and this comports with what I heard. Just a guess that a majority will evolve to strike the statute because the narrower ruling brushes with finding political fault as did the district court.

  3. Submitted by Howard Miller on 03/15/2010 - 05:59 pm.

    The senate election challenge took a long time to resolve. The issue was important, but not as pressing as the dietary needs of the original plaintiffs going after the Governor’s unallotment decision.

    The unallotment in question is suspended, pending the Mn Supreme Court decision, no?

    How long might it take for the Court to decide this issue? Is this something that moves more quickly, or is the stay of funding execution enough to protect the plaintiffs?

    footnote – bought a printed NYTimes Sunday for long plane ride – might have been my nervous sweaty/salty hands, but got ink-stained …. quite the nostalgic experience. Thinking of Mr. Black’s ink-stained wretch constructions …

  4. Submitted by Greg Kapphahn on 03/15/2010 - 08:41 pm.

    I will be willing to accept that the unallotment statute is constitutional as soon as my conservative friends are willing to grant the governor the power to resolve the situation where the state is heading into deficit by raising taxes in addition to cutting spending. Lacking that, they demonstrate that their concern is not over deficit spending at all, but that they are just pleased as punch that Gov. Timmy’s use of this statute allowed him to cut state spending by his own person pronouncement, and against the wishes of the legislature which had been elected by a majority of the voters in Minnesota, something Timmy has never managed to accomplished, himself.

  5. Submitted by Hiram Foster on 03/16/2010 - 07:40 am.

    The Supreme Court sets it’s own time table, but I expect a decision will come sooner rather than later, particularly if the decision would require significant legislative action.

  6. Submitted by William Hansen on 03/16/2010 - 10:26 am.

    I’d be interested in some “if, then, what” analysis of the possible rulings. Specifically, is it possible that all the programs that lost funding would receive their funding retroactively? Or, if the ruling is specific to the nutrition program, do the other programs have to go to court? I’d really value some in-depth reporting on the possibilities Eric.

  7. Submitted by Hiram Foster on 03/16/2010 - 01:49 pm.

    “is it possible that all the programs that lost funding would receive their funding retroactively?”

    The problem with that is that the state doesn’t have the money to pay them. What would have to be done is cut spending or raise revenue, the legislative deadlock that the the use of unallotment avoided at the end of last year’s session.

    “if the ruling is specific to the nutrition program, do the other programs have to go to court?”

    Probably, if the ruling is limited to it’s facts as the lower court’s was. But in reading Eric’s account and others, the Supreme Court seemed to be contemplating a broader ruling should it be inclined to limit or reverse the governor’s action. But the Supreme Court can do pretty much what it wants when it wants to in it’s decsision because, after all, they are supreme.

    No one can know with any certainty now what it means when the governor unallots funds until the Supreme Court tells us what it means. Among other things, unallotment might be viewed as a suspension of the state’s obligation to pay, that must be lifted when the state has the funds to pay such obligations should it ever have the funds to do so.

  8. Submitted by Arito Moerair on 03/16/2010 - 02:02 pm.

    Read the entire Subd 4 ( It does not clearly explain exactly how the unallotments are to happen. It only says (4e) that he (the commissioner) SHALL reduce the allotment TO ANY AGENCY BY THE AMOUNT OF ANY SAVING. This is very murky and ill-defined. There is no mention of pro rata unallotments.

    However, the plaintiff is not directly arguing an issue with Subd 4. He is arguing that the governor, as a result of the unallotment, is NOT faithfully executing the will of the legislature.

    This is a very tricky case.

  9. Submitted by Paul Brandon on 03/16/2010 - 02:39 pm.

    Magnuson presented an interesting possible solution when he speculated that an unalottment that did NOT change Legislated priorities would be an across-the-board cut that treated all programs equally.

  10. Submitted by Bernice Vetsch on 03/16/2010 - 03:17 pm.

    Greg K (#4): I don’t think your conservative friends can “allow” the governor to raise taxes to resolve the shortfall. He is The Decider.

    The governor listens only to Grover Norquist, he of the Taxpayer Protection Pledge and the Leave Us Alone Coalition (which opposes the Takings Coalition – trial lawyers, government workers, poor people, et cetera, that “take” the Leave Us Alone crowd’s hard-earned money to use for nefarious and no doubt socialistic purposes).

  11. Submitted by John E Iacono on 03/17/2010 - 09:59 am.

    I agree, “It would be foolish to infer how they are going to rule…”

    And I prefer to leave it at that.

  12. Submitted by Hiram Foster on 03/17/2010 - 10:16 am.

    “Magnuson presented an interesting possible solution when he speculated that an unalottment that did NOT change Legislated priorities would be an across-the-board cut that treated all programs equally.”

    I don’t know how serious the Chief was in saying this, but that seems to me an extraordinarily speculative thing to say, and if implemented a classic example of legislating from the bench.

    We know what the legislature’s priorities were. They were enacted into law through the use of legislative authority. Changing them, can only happen through a use of similar legislative authority. Arguably, the governor has such authority delegated to him by the unallotment statute. In any event, that’s one of the things the case is about. The Supreme Court has no such authority.

  13. Submitted by Sharon Anderson on 03/17/2010 - 10:33 am.

    Can’t open Video go to to find
    In the interest of Justice How can Magnuson appointed by Pawlenty, former law partner, hear any case where Pawlenty is the Defendant?
    Lindsey Springer Case currently in USSC

    On December 10, 2009, six days later, Chief Judge Henry from the 10th Circuit resigned as a Judge and Chief Judge.

    Meanwhile, on January 13, 2010 I filed a Petition for Mandamus with the Supreme Court of the United States. 09-8701. This involved six judges. I was ordered on January 26, 2010 to serve process on each of the six federal judges involved. I did that and they were given until late February to file any opposition. They each remained silent as one would expect most Americans would do under the circumstances. I remain shocked at how Americans claim the Fifth Amendment of silence In the Petition I have raised three issues. They are as follows:

    I. Has Chief Circuit Judge in Misc. # 23 and the Panel in 09-5165, so far departed from Title 28, United States Code, Section 292(b), including the sanctioning of such departure by a lower district court, calling for an exercise of this Court’s supervisory power pursuant to S.Ct. Rule 10(a) to render such exercise clear abuse of such limited power extended by Section 292(b)?

    A. Does Title 28, United States Code, Section 292(b) authorize a Chief Judge of a circuit, to designate United States’ Judicial District Court Judges commissioned in one “Oklahoma” judicial district, to 1 year terms in the other two “Oklahoma” judicial districts on a renewable yearly basis for no reason?

    B. What is the limitation on the meaning of the term “temporarily” and phrase “public interest” in Title 28, United States Code, Section 292(b)?

    C. Does Misc. # 23 qualify as a lawful and legal Article III designation pursuant to Title 28, Section 292(b) of Stephen P. Friot to 09-cr-043?

    D. Should all orders entered by Stephen P. Friot in 09-cr-043 outside Stephen P. Friot’s Western Judicial District Court commission be rendered coram non judice and invalid?

    II. When the Secretary abolishes “internal revenue districts,” by calender year 2000 encompassing the State of Oklahoma, what original, territorial, and subject matter jurisdiction does a District Court Judge have over alleged “internal revenue law” offenses pursuant to Title 18, United States Code, Section 3231?

    and they are indicted while Judges remain silent without any ramifications.

  14. Submitted by William Hansen on 03/17/2010 - 10:40 am.

    Is anybody thinking about remedies if the court decides substantially in favor of the plaintiffs?

    One suggestion I’ve heard is for the court to provide a window of time for the legislature and the governor to negotiate a remedy, or the court would provide its own.

    It seems like almost any potential remedy has the makings of a political and fiscal train wreck.

  15. Submitted by Hiram Foster on 03/17/2010 - 11:00 am.

    Your window of time suggestion is eminently rational. Unfortunately it requires implementation by rational people who are in short supply down at the capitol these days.

    By resorting to unallotment, the governor put off the fiscal train wreck we were headed for last session. Should the Supreme Court overturn in sweeping fashion, we would be on track for the same train wreck this session.

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