Fuller argument that partial shutdown is unconstitutional

Because of my power outage yesterday (excuses, excuses), I wasn’t able to convey the full argument that the six Repub legislators and attorney Erick Kaardal are making in their Supreme Court challenge to the continuation of state spending during the partial government shutdown. To remedy that, I’ll append below some excerpts from the Kaardal petition:

If you missed yesterday’s post, the Supreme Court has agreed to hear arguments that the current arrangement for shutdown spending — in which Ramsey District Court Chief Judge Kathleen Gearin is deciding what spending can and cannot continue during the budget impasse/partial shutdown — is unconstitutional because of the state constitutional provision requiring an appropriation for any money to leave the state treasury.

The Kardaal petition relies on that no-spending-without appropriations language (Article XI, section 1) and also on Article III:

“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 except in the instances expressly provided in this constitution.”

According to the petition, Judge Gearin, with the assistance of “special master” Kathleen Blatz, have “exceeded the jurisdictional boundaries of the separation of powers doctrine and have indulged in the constitutional powers reserved for the executive and legislative branches of government. … The attorney general’s actions and the lower court’s orders issued since July 1 have created a constitutional crisis that must be resolved by the Court to preserve the integrity of the State’s republican form of government…”

Here are some other excerpts from the argument:

“The attorney general, through the District Court, has obtained an order that requires the Commissioner of Management and Budget to issue checks disbursing funds to the Executive Branch to carry out so-called ‘core functions,’ despite no appropriation by law and the present budget impasse. Yet the court under the Minnesota Constitution has no power to direct either the legislature or the Executive Branches of government in how they conduct their business. In short, the lower court has usurped the constitutional prerogatives of the Executive and Legislative branches under the single branch of the judiciary. Through the power given unto itself, the court is operating the government through selective and inappropriate funding that otherwise is within the sole discretion of the Legislature…

“The court actions have disrupted the checks and balances inherent within the Constitution. The compromises of legislative debate between the legislators themselves or between the Legislature and the executive — including his powers to veto, including the line item vetoes and the legislature’s right to override vetoes if in session — are lost because the judiciary has usurped the powers of both branches that it does not possess.

“The petitioners also allege injury because the Ramsey County District Court proceedings unconstitutionally tip the balance of powers in favor of the executive and judiciary branches at the expense of the legislative branch — at a critical juncture in budget negotiations between the governor and the legislative leaders. The Legislature’s power to appropriate funds is its paramount power and its leverage in budget negotiations. When the executive and judiciary branches usurp the power of the legislative appropriation, they unconstitutionally deprive the legislature of its power and leverage at the negotiating table.”

In deciding what spending can continue, Gearin has relied on the concept that certain activities of the executive and judicial branches are “core functions” that the other branch cannot shut down by refusing to fund them. The Kardaal petition replies:

“The concept of ‘core functions’ is foreign to the Minnesota Constitution and does not exist in statute. Thus, the Attorney General’s and Governor’s court documents impermissibly draw the Ramsey Country District court into political questions where no court jurisdiction exists because no law authorizing the funding exists.”

Kaardal and the six legislators do allow for a much narrower category of state spending that they believe can continue during the shutdown:

  • those that are necessary for the fulfillment of Minnesota constitutional mandates;
  • those for which there are statutes on the books authorizing perennial funding (there are a relative few of these, and perhaps there should be more, but aid to education is among them); and
  • those that are necessary to comply with the “supremacy clause” of the U.S. Constitution.

The petition describes a much narrower understanding what is necessary to comply with the Supremacy Clause than the one now prevailing in the Gearin court. If the narrower definition was adopted, the continuation of major state-federal benefit programs would be imperiled. Kaardal gave the specific example of TANF (Temporary Assistance for Needy Families), which Gearin has allowed to continue as part of the supremacy clause category.

The state must put up its matching share to receive the federal share. But the state match is something that the Legislature must appropriate each biennium. If the Legislature doesn’t appropriate the state share, the consequence is that the federal share is not received or is reduced, but a decision not to appropriate the state share would not put the state into defiance of the U.S. Constitution. So Kaardal argues the state share must be stopped.

Under all of the exception categories that Gearin is applying, a majority of the executive branch employees have been laid off, but — because of the continuation of benefit programs that require the work of a relative few state officials to process — about 80 percent of normal state spending is occurring during the partial shutdown.

Comments (18)

  1. Submitted by Ray Schoch on 07/12/2011 - 11:11 am.

    Thanks, Eric. Good explanation. My power went out, too (I heard the transformer “pop”), but it was back on in about 40 minutes.

    My bias, for what little it’s worth, is to tend toward the Kardaal position, and I say that as someone not at all in sympathy with Republican legislators. If there’s going to be a shutdown, then it ought to be a genuine shutdown. That would, if nothing else, inconvenience a lot more people, pose more of a threat to public safety, and produce a lot more pressure on legislators to stop behaving like children having a temper tantrum. There’s no state equivalent of “treason,” but if there were, signing a pledge to serve the ideals of Grover Norquist rather than the interests of the citizens of the state ought to qualify.

    The beauty of division of powers is that, while the legislature controls the purse strings, they have to present to the Governor a budget that he will sign. My guess is that, when positions were reversed a few years ago, and it was Pawlenty who was balking at the budget proposal, there was no objection from Republicans about “too much executive power.” All they have to do is find enough sources of revenue so that it’s not the poor and middle-class homeowners who end up bearing the burden disproportionately through property taxes while the wealthy continue to get a reduced rate.

  2. Submitted by will lynott on 07/12/2011 - 11:39 am.

    Hm. I’ve always known the Rs are okay with being remembered as the party that threw the state under the bus, but now they’re doubling down, and want to throw the state off a cliff.
    Ideological purity in action, if otherwise inexplicable.

    That said, their argument resonates with me. Shutdowns SHOULD be catastrophic, not easy–like a soldier once said, “It’s good that war is so terrible, else we should grow too fond of it.” Making shutdowns too easy only encourages more intransigence.

  3. Submitted by Georgia Holmes on 07/12/2011 - 12:38 pm.

    This is interesting, but my reading of Judge Gearin’s original order is that she is pretty much in agreement with the guidelines these legislators want to apply. I don’t think too much would change. There might be a few more agencies closed, but her guidelines are really pretty close to the ones these legislators want. She mentions the “supremacy clause” and the state constitution’s Bill of Rights and then orders agencies providing those sorts of services to continue operating. There are a lot of state institutions that generate much of their own operating expenses. For example, the zoo has money “not appropriated” because it generates money from fees. Similarly, MnSCU has money “not appropriated” because it comes from tuition. It also has “reserves” i.e., money that has been appropriated, but not yet spent. Also, a lot of agencies have funds from “filing fees” i.e., the Secretary of State’s Office. If you notice Judge Gearin’s rulings on specific issues coming before her and the special master, she follows the guidelines the legislators want pretty closely.

  4. Submitted by Tom Miller on 07/12/2011 - 12:40 pm.

    Here is Article I, Section 1, of the Minnesota Constitution:
    “Section 1. Object of government. Government is instituted for the security, benefit and protection of the people, in whom all political power is inherent, together with the right to alter, modify or reform government whenever required by the public good.”

    I’m not a constitutional scholar, but it seems that some level of “security, benefit and protection” is constitutional as long as the government is extant, even if two branches of government cannot agree on how to fulfill their role in providing security, benefit and protection. Thank heaven that the judiciary is stepping in as lightly as possible to alleviate the ill effects of this year’s disfunctional law-making process.

    Oddly enough, I think the GOP plaintiffs have some good arguments. However, it seems that their objective is to destroy government, or at least hobble it to the point where it cannot fulfill the requirements of Article I, Section 1. Is that unconstitutional?

    It will be interesting to how the Supremes rule.

  5. Submitted by jody rooney on 07/12/2011 - 12:54 pm.

    Somehow I think a shut down of the Secretary of State’s office would be a good place to start.

    We could then see how much your bank trusts you.

  6. Submitted by Claire Lundgren on 07/12/2011 - 01:37 pm.

    sorry- hit the wrong button! Judge Gearin has reopened the state aid programs for, what I assume , are humanitarian purposes. She has left closed those programs directly responsible for jobs and private income.( It smells a little of the Norquist pledge.) In effect she has put the majority of the hardship on the taxpaying public, those ultimately responsible for the funding of the entitlements. The Constitution had provided that this situation would never occur by providing a system of checks and balances. The three branches of the government are meant to balance governing. No where in the Constitution is power ever turned over to one branch to act alone. Whatever the presumed interpretation of the Constitution, unless it is spelled out in actual wording, these decisions are purely subjective, arbitrary and, ultimately, unconstitutionsl.

  7. Submitted by Eric Dietz on 07/12/2011 - 02:10 pm.

    A few things.

    Kaardal’s approach to the situation is contradictory. While I understand the practical logic of continuing spending to fulfill MN’s Constitutional mandates and to avoid any Supremacy Clause conflicts, those exceptions clash with the heart of his argument: that no spending is warranted unless it is appropriated by law. If Kaardal insists on relying on a strict construction of that text, it seems disingenuous and contradictory to allow for any deviation. Ultimately, Kaardal has made a judgment on the value of continuing some payments and discontinuing others, neither of which is based in any language of the Minnesota Constitution dealing with appropriations.

    Personally, I find it foolish to interpret in Kaardal’s manner for a few reasons. First, there is no indication that the Constitution or any governing body in the history of the State has interpreted the MN Constitution to allow for a complete (or near complete) shutdown. Second, while the Court may not be exercising a textual power, practice would indicate that the Court can and does have this power. Since we lack any other real guidance, our history should perhaps guide how the Minnesota Courts are addressing the shutdown. Finally, I find it relevant that the government and its ancillary functions exist via the MN Constitution, a document that does not contemplate a shutdown or what is in reality the destruction of the government. The fact that the Constitution creates a government is credence that a shutdown itself is unconstitutional as it violates the purpose and spirit of the document.

  8. Submitted by Jon Kingstad on 07/12/2011 - 03:19 pm.

    If the Court does decide this, look for the phrase “The Constitution is not a suicide pact.”

  9. Submitted by Bernice Vetsch on 07/12/2011 - 03:50 pm.

    If we had Supreme Court that treated right-wing politicians in the same way it treated tens of thousands of WalMart petitioners, it would say the petitioners in this case have no “standing.”

  10. Submitted by Claire Lundgren on 07/12/2011 - 04:43 pm.

    “The fact that the Constitution creates a government is credence that a shutdown itself is unconstitutional as it violates the purpose and spirit of the document.” Exactly!

    The Constitution does not provide for a shutdown because there is not supposed to be a shutdown. I believe that the Constitution is intended to be interpreted literally. No person or organization should be able to arbitrarily say that what was written is not really the intent. If the legislators want to have a different meaning for the document, then it should be changed to read the way they want it by means of an amendment.

    Or else it can change by way of anarchy….

  11. Submitted by Richard Pecar on 07/12/2011 - 06:28 pm.

    “(#3) On June 29, 2011, Author Editor Richard Pecar says: So…does this action mean the judicial branch “created new money”? Just like the Federal Reserve System? It’s my understanding the reason the court acted in this fashion is because there is no money to pay for the programs the court is continuing?”

    “Or, have the courts “pre-appropriated existing money” already in the state’s coffers, and all they have done is guess what legislative branch will do?”

    I’ll stick with my previous contentions (above). Actually, I believe what happened is court created new money out of thin air. When the legislature re-convenes, if it doesn’t pass a bill to “retroactively appropriate” the expenditures disbursed under the court’s order, then we all witnessed the Great Bang birth of a new central bank in Minnesota!

    Yippee!

  12. Submitted by Claire Lundgren on 07/12/2011 - 09:06 pm.

    Thanks! I needed a little levity!

  13. Submitted by Ray Lewis on 07/12/2011 - 11:42 pm.

    Good arguments, but a little beyond my pay grade.

    Isn’t the purpose of government to protect the rights of life, liberty and pursuit of happiness for those it represents?

    Or does government only represent those who vote for it? Or provide contributions to elect those who would represent their own self interest?

    If the public cannot tell the difference, do elected decision makers at the Judicial, Executive or Legislative branches know the difference?

  14. Submitted by james eckard on 07/13/2011 - 12:19 am.

    I would agree with the republican plan as long as the Judge also spelled out clearly that the State Reps were in dereliction of their sworn duties for failing to do their jobs. They were elected to run the state not play games with it.

    So yeah, lets stop paying all the food support benefits and oh yeah throw grandma out of the nursing home onto the street. Then the Feds can levy a nice fine of the State for breach of contract for accepting the Federal monies for the services.

    Oh yeah some of those critical services that are being kept running are the prisons and jails and mental hospitals. Not to mention the State Patrol. So we should just close them all down as well, release all the prisoners it’s everyone for yourself!!

  15. Submitted by jody rooney on 07/13/2011 - 09:12 am.

    Richard (#11) Taxes are still being paid to the state so the checkbook is not empty. Therefore no need to manufacture funds.

  16. Submitted by Richard Pecar on 07/13/2011 - 12:07 pm.

    (#15) You are really missing my point. Don’t feel alone, you have plenty of company. In making this point, I really didn’t given a hoot how much money the state had, or where it is, whether it’s in a bank account or a shoe box or cookie jar…In the USA and Minnesota we all agreed via our respective Constitutions, the money in our respective Treasuries is only spent via a law appropriating it, and the legislature does that work. End of story.

    As I have debated so many times in this instance, unsuccessfully I might add, unless the legislature reconvenes and sprinkles some Holy Water on the action by Judge Kathleen Gearin to appropriate these monies and disburse them certain fashion, then the court has effectively created new money.

    This may not fit your understanding of money, and where it comes from and the like, but what I say it likely spot on.

    Please don’t personalize what follows:

    Unless and until people get the picture, and straighten out their thinking, and reach the point they realize that all money is just a journal entry (okay, an infinitesimal percentage is inked paper), and that every bit of it, regardless, is not a real thing, and at the end of the day, money is nothing more than a self-defeating illusory construct designed by humans to benefit humans, then we go all insane. Today, the monetary system no longer benefits anyone but a very few.

    Do your need proof on this contention? Turn on the TV! We are strangling our ourselves with our own hands!

    Society should cease blindly accepting the notion our money and monetary system can be made to work. It can’t, and we can’t continue making it more more if it in our minds than what it is; which is a failed belief system – a belief system that worked for a hundred years or so (Federal Reserve Act of 1912/3) and now that system needs revamping. What happened before then? The USA monetary systenm before the FED failed too. Gotta do a little thinking outside the box here.

    For example, the whole idea the world was flat worked for humans for centuries. But then, that notion didn’t fit the reality, and the facts, Columbus didn’t sail off the edge. Oops…on that one! The idea that certain colored pearls bouncing around in the bottom a various glasses of different colored wines cured this disease, or cured that disease, this didn’t pan out either. That was when, 150-years ago or so. Oops..on that one too!

    Our monetary system needs changing, and that’s what the very good, and very well-intended Judge did when her court created new money; that is, until and unless the legislature, once it convenes, backs up her court’s action by passing a law allowing her court’s appropriation. If that’s what happens ultimately, then all the judge did was appropriate existing money in anticipation of the legislature’s concurrence. Risky? Yes, and likely not Constitutional.

    Personally, I like the idea she used her power-of-the-bench to create new money, and I hope the legislature never backs her up, and then Minnesota would have stumbled upon a portal leading to the promised land. A Minnesota judge can create new money when it’s necessary, and believe me when I state this, I am not being sarcastic here in the least. The law prevents that money from leaving the state bank account, there was no law passed to allow it. A conundrum to be sure…we are all with Alice and down the Mad Hatter’s hedge hole. Cool.

    I realize my rant seems farfetched, you should hear and see my partner and her friends get ruffled when I climb on my soapbox. I stand pat on what I said.

  17. Submitted by Claire Lundgren on 07/13/2011 - 08:19 pm.

    #16 Richard, Brilliant. Frightening that it is now reality. Now what?

  18. Submitted by Steven Liesch on 07/14/2011 - 02:27 am.

    I have a philosophical (logic) / legal problem with the Republican legislators going to the MN Supreme Court.

    It goes something like this.
    If the Justices agree with the Republicans that without an appropriation nothing can happen,do they turn off the lights and go home without issuing a ruling?

    From a different perspective,
    are these same legislators intellectually dishonest when they go to the Supreme Court when they have not funded (a signed appropriation) the institution they wish to use???

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