The Minnesota Supreme Court tapped on the brakes Friday, but it seems more likely that the justices were slowing down, rather than stopping, the progress of the case challenging the constitutionality of court-ordered state spending during a government shutdown.
The final brief in the case was due on Friday and the court had scheduled oral arguments for Wednesday of this week. The final brief is in, but the court has canceled the scheduled oral arguments. The order canceling the arguments is a tad ambiguous, and could be read as a sign that the court is preparing to drop the case now that the shutdown is over. But the better guess is that, with the shutdown now over, the court now sees no reason to rush. (The order says that the parties to the case will notified “at a later date” about oral arguments, but not “of a later date.”)
Meanwhile, the last brief is in. It comes from Erick Kaardal, attorney for the six Republican legislators who brought the petition to the court challenging whether the judicial branch has the authority to supervise state spending during a partial shutdown, notwithstanding the fact that the state Constitution vests the power of the purse in the Legislature (subject to the usual possibility of a gubernatorial veto and a legislative override of such a veto) and that the Constitution contains an explicit statement that no funds can be disbursed from the state treasury without an appropriation.
Kaardal has made the argument before. Here are a couple of small excerpts from the brief, which may be the last peep we will hear from the case until the court reschedules the oral arguments:
“The Minnesota Constitution does not intend the judiciary to function as both the executive and the legislature.”
“District courts should not exercise jurisdiction over matters that intrude into the policy decisions of the legislature and executive branches.”
“The political impotency of the executive office cannot be transferred to the judiciary to insulate that office from the electorate or as an effort for the Governor to regain political strength as an advantage over the Legislature. The Governor has the sole constitutional authority to call the Legislature into special session to debate the political policies of government expenditures but chose not to. Therefore, the court’s orders to fund essential services, regardless of the perceived stabilizing effect it may or may not have, has directly interfered with democracy and the republican form of government. However flawed and however critical the shutdown, the judiciary has no role in making political decisions disguised as judicial controversies…The Legislature’s and the Governor’s action — or inactions — placed the state on the path of a government shutdown. It is not the court’s place to resolve, mediate or mitigate the resulting political carnage.
“The attorney general, in her petition to the District Court, sought and obtained advisory opinions of what is and what is not a so-called ‘core function…’ but what constitutes an essential service or ‘core function’ depends largely on political, social and economic considerations, not legal ones. They are nonjusticiable political questions. The courts simply are not equipped to decide these political questions.”