What constitutional experts think of Minnesota’s shutdown

If the voters get tired of legislators and governors who can’t agree on a budget, they should elect legislators and governors who can.
REUTERS/Eric Miller
If the voters get tired of legislators and governors who can’t agree on a budget, they should elect legislators and governors who can.

So now, after state government shutdowns in 2005 and 2011, a case in the Minnesota Supreme Court seeks an answer to the question: If the governor and the Legislature cannot agree on a budget, and the old appropriations are expiring, what’s supposed to happen to state agencies and employees and functions? Do they all have to shut down or can some stay in business and if so which ones and on what legal basis?

The state Constitution is supposed to have the answers. Only it doesn’t. At least not clear ones. Well, really not even a trace.

Two scholars of the Minnesota constitution (both, inconveniently for this piece, named Morrison) agree that the original framers, working in 1857, never considered the government shutdown scenario.

“It’s fair to assume that it didn’t occur to them, which is astonishing since the Democrats and Republicans [at the time of the 1857 drafting of the Constitution] couldn’t agree to even meet in the same room,” said Prof. Mary Jane Morrison of Hamline University Law School.

Law Prof. Fred Morrison of the University of Minnesota agreed that the framers left no instructions for a shutdown scenario, other than the clear-seeming injunction that no state money could be spent without a legal appropriation.

Fred Morrison’s analysis
But that rule, Fred Morrison said, was pretty much boilerplate. It appeared in many state constitutions, a version of it is in the U.S. Constitution and it really dates back to England’s “glorious revolution” of 1688 and the English bill of rights which vested the power of the purse in Parliament as a check on the spending power of the king.

Still, it’s the nature of our legal system that we seek the answers to ultimate questions from the Constitution, whether the answer is in there or not.

“We have to assume that the answer is in there because the Constitution describes the full power of the state. If the power [to spend money that hasn’t been appropriated] isn’t in there then the power doesn’t exist,” Fred Morrison said

If the text doesn’t leave clear instructions on how to proceed in a shutdown scenario — and it doesn’t — then “the answer has to be deduced from other constitutional provisions that have little or nothing to do with these questions,” he said.

Fred Morrison has been following the current case. He agrees with most of the parties that certain kinds of state spending must continue, even without appropriations, such as spending that is necessary to protect fundamental constitutional rights of Minnesotans under the state and federal constitutions, and funding of state-federal joint programs that are mandatory under the Supremacy Clause of the U.S. Constitution (although exactly which programs those are is a bit complicated).

But the more general category of shutdown spending — that each branch of the state government has an up-to-date list of “core functions” that must continue even with unappropriated funds — strikes Fred Morrison as “much more questionable,” especially when it comes to defining which functions are “core” enough to have this status.

“If you are a 21st Century social democrat, you have a lot broader view of what the functions are. If you were a 19th century farmer [like the generation that wrote and ratified the original state Constitution] you didn’t see the state doing much of anything. If you look back 100 or 120 years, the state didn’t do much. There was no state patrol, no highway department.”

If the Constitution does establish a set of “core functions” that must continue, even in contravention of the usual no-appropriation-no-spending rule, does the list evolve and grow over the decades as the state gets into more and more areas? Morrison asked. Does the judicial branch have authority to decide — as happened in 2001 and 2005 — what is on the list and what is not?

Fred Morrison, a leading scholar of the Minnesota Constitution, left the question hanging, although he seemed quite skeptical of core function-ism.

Mary Jane Morrison’s analysis
Mary Jane Morrison, who has written a book about the Minnesota Constitution, took the analysis in a different direction and had a strong prediction on what the state Supreme Court will do with the question.

The court won’t answer.

At some point — probably as early as next week when the shutdown case is due to come before the Supremes for oral argument — the justices will raise the issue of “mootness.” Since the shutdown is over and the normal appropriation process is now back in charge, is there any current case in controversy that the Supreme Court really has to decide? Mary Jane Morrison asked.

“Everybody had better be prepared to argue mootness,” she said.

Morrison expects that the high court will end up not deciding the case on its merits, but in declaring the case to be moot, the court will write something communicating that the Legislature and/or the citizens should use the tools they already have available to prevent this shutdown problem from reoccurring.

The framers of the Constitution “told us what they expected to happen and by what rules,” she said, and if future circumstances created problems that the framers didn’t envision, they provided all the tools necessary to deal with those unforeseen circumstances as well.

Those tools include the power of the Legislature to pass a law providing standing appropriations for those functions that they want to see continue during budget impasses, or to pass a “lights-on” bill on the eve of the next shutdown to provide short-term funding for key functions, or to draft a constitutional amendment for referral to the voters adding a shutdown contingency plan to the Constitution.

If none of those solutions work, she said, the drafters of the Constitution gave the power to the people to solve the problem by “throwing the rascals out.” If the voters get tired of legislators and governors who can’t agree on a budget, they should elect legislators and governors who can.

All of these ideas for solving the shutdown problem will work, based on tools that are already provided in the Constitution, and they will all appeal to the Supreme Court more than the idea of the court itself deciding what stays open and what must close during a partial shutdown.

“The last thing that courts want is to be in charge of a state. They just don’t want that. They’re not the big daddys and mommas that are going to tell the children how to behave. I’ll be very surprised if the Minnesota Supreme court doesn’t tell us exactly that: That the case is moot and there are all these other solutions already provided in the Constitution. Sometimes these solutions take time. But in the long run, freedom is served by letting those solutions work their way through the process.”

A last historical footnote
By the way, if you were mystified by the reference at the top to the hyperpartisanship that afflicted the drafting of the Constitution, it’s not a story I know well, but here’s how Fred Morrison described it to me:

In 1857, as Minnesota approached statehood, delegates were elected to a convention to draft a constitution. About 45 Dems and 45 Repubs showed up in St. Paul, making various disputed claims to have been elected as delegates. The two sides couldn’t agree on anything and separated and started meeting in separate St. Paul hotels drafting rival constitutions.

They eventually realized that if they couldn’t get a valid constitution ratified, they would never get to be a state so they organized a conference document that was approved by both conventions, still meeting separately, although small differences crept into the versions approved by the two conventions.

The voters of the territory voted to ratify the deal but without specifying which of the slightly different versions was approved, and those small differences persisted until — believe it or not — the late 1970s when a new constitutional amendment was done to reconcile the small differences.

Comments (3)

  1. Submitted by Richard Pecar on 07/21/2011 - 03:58 pm.

    In the South Dakota Senate, around 1995, during a particularly contentious session, the President of the Senate ordered maintenance to cover the chamber clock and continued the session until a certain bill was voted; the thinking was the session wasn’t over until the senators could see the official chamber time piece and move for adjournment. During this session the Senate Sergeant of Arms locked all the Senators in chamber. The vote was completed at 2:15 am.

    Using this as a guide, one solution might be that one minute before a failed budget is “officially failed” and the state faces a shut-down; that the Speaker of the House, and the President of the Seanate, are required by their Rules to cover all clocks at the Capitol; order the Sergeant of Arms of each house to lock the chamber doors and the Capitol Police to the building doors. No one leaves until their job is done…legislature or governor. Only water and food and medical aid only can enter. Truly sick officials may be hospitalized if badly needed.

    The people we elect to represent us have extraordinary powers, including ordering other people into harm’s way (i.e., the National Guard and State Police); and the old saying applies that, “A person’s property, and life, and freedom aren’t safe when the legislature convenes”…that is literal statement.

    And, since I am an old ex-Marine, I know what it means when an officer or an enlisted person abandons their post. We don’t like that, and it’s looked upon with “extreme prejudice”.

    I respect Judge Gearin for disregarding Minnesota’s Constitution and appropriating state funds to protect the infirm and disadvantaged. Marines, too, are trained not to leave behind the weak and wounded; and we respect, big time, getting the job done when under fire.

    Judge Gearin did what had to done despite the cowardly behaviors of the rest of our so-called “leaders”, and her decisions demonstrated real leadership.

    I don’t know what to make of the others…certainly they should lose their power over the people next election.

  2. Submitted by Ray Schoch on 07/21/2011 - 06:46 pm.

    Good piece, Eric.

    I’m inclined to agree that “mootness” seems likely to carry the day, and it does seem like the most straightforward and obvious solution to the problem of recurring shutdowns is to elect people who won’t fall back on that as a routine way of dealing with policy disagreement.

    In other words, both Governor and legislators would have to behave like grownups. That was not the case this time. Petulant children should not be in public office at all.

  3. Submitted by Paul Brandon on 07/21/2011 - 08:05 pm.

    Let’s hope so.
    If not, shame on us.

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