If the big deal stays on track to end the shutdown, it would be easy to shrug off the awkward constitutional problems raised by the now-customary arrangement for running much of the state government with unappropriated funds when the normal budget process fails.
But the case that challenges that arrangement is still alive in the Minnesota Supreme Court. Briefs filed Monday made clearer than ever a rift between Gov. Mark Dayton and Attorney General Lori Swanson over the constitutional question.
Although Dayton and Swanson are fellow DFLers, and are sort of on the same side of the case, Dayton’s brief attacks the Swanson legal position fairly harshly.
The Supreme Court agreed on July 11 to hear the case, brought by six Republican legislators, challenging whether the judicial branch has constitutional authority to take over the budgeting function when the other two branches deadlock.
Now, with a deal pending to end the impasse, the Supremes could change their minds and declare the issue moot. Erick Kaardal, the attorney for the legislators and the legal force behind the challenge, keeps making the argument that since we have entered an era of shutdowns that are frequent but brief, the Supremes ought to decide the case so we will know in advance of the next shutdown just what the state Constitution permits, what it bars and what it requires when the governor and the Legislature stalemate over the budget.
Background: The state Constitution (Article XI, section 1) says flatly that no state money can be spent without an appropriation. But during the brief shutdown of 2005 and the current one, the attorney general has persuaded a court to step in and decide which state government functions are so vital that they must continue without appropriations.
This year, Ramsey County District Court Chief Judge Katherine Gearin agreed with Swanson that the courts must decide which state functions continue during a shutdown. Gearin’s orders permitted most state money to keep flowing although most state employees were laid off.
Kaardal’s clients argue for a much narrower list of functions that can stay open.
The practical argument is that if shutdowns were inconvenient, perhaps they would be shorter and less frequent. But the constitutional argument is that there is simply no constitutional authority for the judicial branch to exercise the power of the purse — a power that the Constitution assigns to the Legislature, subject to the agreement of the governor or to the Legislature’s ability to override a veto.
The attorney general’s brief
In the previous shutdown (2005), and the other recent near-shutdown (2001) and again this year, the attorney general has made the argument that the courts must exercise this power for two main reasons: one practical and the other rooted in the balance of powers across branches of government. The argument, made most recently in Monday’s brief from the attorney general, repeats these main points from the earlier petition asking Gearin to get involved:
Practical: Surely the state government — which the Constitution says in its opening line “is instituted for the security, benefit and protection of the people” — can’t possibly provide that protection and benefit if the state government must close the prisons and let the inmates loose or close the state mental institutions and turn out in the streets people who cannot care for themselves just because the governor and the Legislature can’t agree on a budget. Monday’s brief repeats a parade of horrible that would ensue if the entire state government suddenly ceased.
Constitutional: How can powers among the branches be balanced if one of the branches (the Legislature, by virtue of the power of the purse) can deprive the other two branches of the ability to perform even their most critical core functions by refusing to appropriate funds.
Precedent: In a 1986 case (Mattson v. Kiedrowski), the Supreme Court ruled that the Legislature cannot use its power of the purse to prevent a constitutional officer (in that case it was the office of state treasurer, which no longer exists) from performing his “core functions” by taking away most of his budget and transferring his functions out of his office.
Quoting from the Mattson ruling, the AG’s brief summarizes the argument thusly:
“The court stated that the designation of constitutional offices in Article V, Section 1, ‘implicitly places a limitation on the power of the legislature’ so that the core functions of the executive branch officers, and their performance of those functions, may not be abridged by a withholding of appropriations.”
The Mattson case has become the linchpin of the shutdown arguments suggesting that a budgetary impasse amounts to the Legislature — by failing to pass a budget — shutting down the executive branch.
The solution, in 2005 and again this year, has been for the court to identify the “core functions” of each constitutional office and authorize the use of unappropriated funds to keep those functions going.
I should note that there are other categories of spending during a shutdown that are accepted by all the parties in the case. For example, some functions of state government are necessary in order to assure Minnesotan rights that are guaranteed under the federal or state constitutions. Some state spending is necessary to comply with the “supremacy clause” of the U.S. Constitution. And some state functions are fortunate to have laws on the books that guarantee their continued funding under a sort of permanent appropriation.
The Republican legislators accept these categories as well. But Kaardal doesn’t accept the “core functions” bit. If the Supreme Court sticks with the case to a conclusion, one of the biggest elements of a ruling would be to decide whether to extend the analogy from Mattson case — where the Legislature did set out to expressly transfer functions and funds from the treasurer’s office — to the case of a general collapse of the appropriation process is applicable.
The governor’s brief
Ironically, in 2005, when Mike Hatch was attorney general and Tim Pawlenty was governor, the two offices took almost identical legal positions heading into the shutdown, despite the partisan differences and personal rivalry between Hatch and Pawlenty, who would run against each other in 2006.
But since the shutdown of 2011 emerged as a likelihood, there are have always been differences between Dayton’s and Swanson’s legal approach. The new briefs draw them more sharply than ever.
For starters, the governor and his special counsel for shutdown legal questions, former U.S. Attorney David Lillehaug, have asked the court not to get involved in ordering funding for executive branch functions.
Dayton asserts that, as governor, he has certain “inherent powers,” not explicitly spelled out in the Constitution but necessary for him to fulfill his portion of the constitutional goal of providing for the “security, benefit and protection of the people.” Under these powers and without any input from the courts, he was prepared to “circumspectly” use those powers to continue functions to protect life, health, safety and property and to try to shield the Minnesota economy from major harm.
Therefore, Dayton argues, the attorney general should not even have gone to court in June to dust off the arrangement that had been used in 2005. And the court should not have taken the case.
In light of the new brief, it appears that the governor and Lillehaug agree with many key elements of the argument made by the six Repub legislators and Kaardal.
At times, the governor’s brief borders on accusing the attorney general of legal incompetence, of filing a kind of non-lawsuit lawsuit that didn’t make any “claims” against any adverse parties, didn’t “seek any of the ancient writs” that litigants usually seek from the courts, and did not present the court with “the type of dispute that the courts are designed and suited to handle…”
What should have happened, according to the governor’s brief, is that the court should have done nothing until the shutdown began. The governor would then have used his inherent powers to protect life and health etc. Someone who actually claimed to be harmed by what the governor was doing could have brought a lawsuit and then the courts would have had a proper courtly role to play in deciding what the laws and constitution of Minnesota require in such a situation.
The attorney general’s “broad invitation to the district court” to take over the budget decision-making functions during the shutdown was indeed “inconsistent with the separation of powers,” wrote Lillehaug.
Although the decisions by Judge Gearin and by Special Master Kathleen Blatz were “well-intentioned,” they usurped of the budgetary powers that the Constitution assigns to the other branches.
Dayton rejects Swanson’s use of and Gearin’s embrace of the Mattson case to justify turning the court into a budgeter of last resort. The Mattson case was all about forcing the Legislature to respect the constitutional separation of powers but Swanson used it to “invite the district court to go beyond the judicial department’s inhreent powers and exercise the inherent powers of the other two departments.”
From the governor’s brief:
“Mattson supports the governor’s position that the Legislative department, by a failure to enact appropriations, may not strangle the executive department. However, Mattson does not stand for the proposition that the Judicial department may take control of all executive agencies and their funding.
“…Thus Mattson is not solid precedent for the District Court to take control of the executive agencies’ services and the state treasury. [Gearin’s] June 29 Order did, indeed, take from the Legislative and Executive departments the shared power of the purse. It also took from the executive department a significant part of its powers to protect itself and to execute the laws. Each order of the District Court after July 1 took more power from the executive department.”
I believe the next step in the case will be a reply brief from Kaardal on behalf of the six legislators. That is due Friday.
By the way, the legislators who petitioned the court consider this constitutuional shutdown issue are: state Sens. Warren Limmer, Scott Newman, Sean Nienow and Roger Chamberlain, plus state Reps. Glenn Gruenhagen and Ernest Leidiger.
There is a third brief, by the League of Cities seeking to intervene and to get the court to agree that Local Government Aid is in the category that must be continued in any shutdown. That one is here.