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.