The Minnesota Supreme Court will consider the fundamental constitutional question surrounding the government shutdown.
The question might be put this way:
Given that the Minnesota Constitution says that no money can be spent from the state treasury without an appropriation by law, and given that the two branches responsible for the state budget — the legislative and executive branches — have been unable to agree on appropriations for most state functions, does the third branch — the judiciary — have authority to order and supervise the spending of many millions of unappropriated state dollars on what the court deems to be “critical core functions?”
I’ve written about this constitutional question several times before. And the Supremes have declined on two previous occasions — once in 2005 and once in June — to get involved. But now they have taken the case, which greatly increases the odds that the shutdown of 2011 will produce a definitive constitutional answer.
And that answer could dramatically affect the current shutdown, as well as set the terms for what will happen in future budget impasses, which have become increasingly common.
To be more concrete, the four Republican senators and two Republican House members who have brought this matter to the Supremes are arguing that the courts have much, much more limited authority to keep state spending going. The argument made by their attorney, Erick Kaardal of Minneapolis, puts on the table even the unthinkable possibility that the state prisons and hospitals for the mentally ill might have to shut down.
I’m not even slightly predicting that the court will go that way, but I confess that I don’t find Kaardal’s constitutional logic at all ridiculous.
His argument relies on two things: The Constitution grants the Legislature the sole power to appropriate funds (subject to either the signature of the governor or the override of the governor’s veto). The Constitution also states specifically that no branch of the government can exercise powers reserved to another branch. Nothing in the Constitution gives the court, or the court in collusion with the governor or the attorney general, authority to operate large swaths of the state government with money that the Legislature has not appropriated. To do so, Kaardal writes in his petition, is an act of usurpation” that creates a “constitutional crisis.”
So the six legislators — Sens. Warren Limmer, Scott Newman, Sean Nienow and Roger Chamberlain, plus Reps. Glenn Gruenhagen and Ernest Leidiger — petitioned the court on Friday to issue an unusual document called a writ of quo warranto, which basically orders Ramsey County District Court Chief Judge Kathleen Gearin, Gov. Dayton, Attorney General Lori Swanson and Management and Budget Commissioner Jim Schowalter to explain where they get the authority to commit these acts of usurpation.
Kaardal and his clients believe there is no such authority, and that when that becomes clear, the Supreme Court will order them to cut it out. Kaardal suggests that at that point, the court grant the governor and the Legislature a seven-day pause before all the spending stops to give them a chance to resolve the budgetary impasse.
The court set arguments for July 27. Gearin’s order establishing the core functions program is due to expire July 31, subject to possible renewal or to expire when the Legislature and governor end the budget impasse.
I’ll provide more details of the argument soon. I’m writing this in the Southdale lobby because the power is off at my house, so please pardon any incoherence, although the Cinnabons are very tasty.
The Kaardal petition (57 pages, I’m afraid) is viewable here.