In Minnesota, the political season never seems to really end.
That’s been true of the last several sessions under DFL Gov. Mark Dayton and a Legislature once partially — and now fully — controlled by Republicans. Budget battles have stretched into special sessions, which have stretched into more negotiations over special sessions.
And it’s not going to end anytime soon. That’s one consequence of the recent ruling from the Minnesota Supreme Court, which on Friday ordered the governor and legislative leaders into mediation to resolve their latest political dispute. On Tuesday morning it was announced that Dayton and the legislators have chosen retired Judge Rick Solum as mediator.
At the center of the conflict is Dayton’s decision at the end of May to line-item veto funding for the operations of the House and Senate. By Dayton’s account, he used his line-item-veto power so that he could avoid a total government shutdown while also compelling legislative leaders back into negotiations over provisions he didn’t like in several other bills, including a $650 million package of tax cuts. Legislators said that his move violated the Minnesota Constitution by effectively abolishing a separate branch of government, so they took him to court.
A lower court agreed with the Legislature, nullifying Dayton’s veto. But late on Friday, the Minnesota Supreme Court dropped a six-page ruling that said his veto was, in fact, constitutional, and ordered the executive and legislative branch to come back together and figure out a political solution. The two sides were required to hire a mediator by the end of Tuesday and report on the status of the Legislature’s finances by the end of the week.
And yet even the most seasoned political and legal experts say the short ruling leaves a lot of unanswered questions. What’s certain, they say, is that the ruling will have some immediate and potentially significant impacts on the state’s political process.
A look at the key takeaways from the ruling — and what could happen next:
The governor just got more power
The Minnesota Supreme Court ruling is short, but it did say one thing definitely: The Constitution gives the governor power to line-item veto specific budget items from larger budget bills. “Based on the plain language of the … Minnesota Constitution, we hold that the Governor’s exercise of his line-item veto power of the appropriation for the Legislature’s biennial budget was constitutional under that provision.”
Immediately following the ruling on Friday, Dayton released a statement saying he was “pleased” his line-item veto power was upheld. “I am also pleased that the Supreme Court ordered the Legislature and myself to ‘participate in good-faith efforts to resolve this dispute through mediation,’ ” Dayton said. “I proposed just such a remedy, when I issued my veto letter.”
If the ruling becomes the last word on the topic, says Steven Schier, a political science professor at Carleton College, the Supreme Court is setting a precedent that will allow all future governors to veto legislative budgets to continue negotiations.
“Let’s say the ruling as is now is law for the future. This is an invitation for every future governor to essentially veto a hostile Legislature and force them back to the table,” he said. “This has the potential for gubernatorial aggrandizement of a sort that we’ve never seen in the history of the Constitution.”
David Schultz, a political science professor and attorney at Hamline University, said the ruling also gives a future governor the opportunity to suspend funding for the judicial branch as well, a question that came up many times in the court proceedings. “What if a future governor wanted to line-item veto the judicial branch because he or she didn’t like a decision?” Schultz said. “This ruling opens them up to that.”
But, wait, Dayton’s actions could ‘soon’ be unconstitutional?
But there was something for the Legislature in the ruling too, particularly the court’s insistence that this ruling does not “end the matter.”
The legislators’ argument was never that the governor doesn’t have the power to line-item veto budget items. They argued that he crossed a line, violating the separation of powers clause in the Constitution when he eliminated funding for the House and Senate, another branch of government. While the court upheld Dayton’s veto, the ruling said if the two parties can’t work out their differences, the legislative branch of government could be in danger.
An earlier agreement between the two parties and the courts funded the Legislature until Oct. 1, but after that the situation is unclear. The House and Senate have a limited amount of carryover funds they can use, and if Dayton and legislators can’t work out their differences, the court could come back and intervene, the ruling notes.
“Our Constitution requires ‘three distinct departments: legislative, executive and judicial,’ ” the ruling reads. “Minnesotans may soon be deprived of their constitutional right to three independent branches of government.”
“We are pleased today’s order recognized Minnesotans’ right to a functioning legislative branch of government,” read a joint statement from Republican Senate Majority Leader Paul Gazelka and House Speaker Kurt Daudt. “While we do not dispute the governor’s line-item veto authority, the court order also recognized that ‘Constitutional powers may not be used ‘to accomplish an unconstitutional result.’ ”
Negotiations at the Capitol could get even messier
What’s also clear is that no emergency funding is coming to the Legislature anytime soon. In its short ruling, the court said it does not think the judicial branch has the authority to authorize any kind of funding, even in an emergency. The Constitution gives the power of appropriation to the Legislature, not the courts.
“We are unaware of any authority that allows the Judicial Branch to authorize spending simply because parties ask a court to do so,” the ruling reads. “In fact our cases suggest that the Judicial branch does not have the inherent power to appropriate money.”
That flies in the face of three rulings from lower courts — all of which were dealing with imminent or ongoing government shutdowns — that the courts can provide funding in the case of an emergency. As a result, the Supreme Court’s ruling could make any future shutdown a lot more painful for Minnesotans and politicians, who were able to at least partially fund state services during the 21-day government shutdown in 2011.
“I think they are trying to back away from it, or are at least saying to the political branches, the Legislature and the governor have to reach some conclusion; otherwise there is going to be a real shutdown,” said Fred Morrison, a law professor at the University of Minnesota. “The court is clearly saying: ‘This is not our potato to handle, this is your potato to handle.’”
In the hearing over the dispute between Dayton and legislative leaders, Supreme Court justices questioned the Legislature’s attorney about why they adjourned a special session and went home immediately after passing the budget bills, depriving themselves of their constitutional right to try to override his veto (only governors can call a special session, but only legislators can adjourn one). The attorney said it was part of the Legislature’s agreement with the governor: to only pass remaining budget bills and immediately adjourn.
Schultz thinks this ruling might change the way future legislators handle the already-loose agreements made to persuade the governor to call a special session. “The Legislature will just say: ‘We are not going to adjourn until you sign the budget,’” Schultz said. “It undermines the goodwill and trust that goes into calling a special session in the first place.”
This is far from over
The Supreme Court did not send the case back to Ramsey County District Court, where the case was first heard. Instead, it left the matter open and ordered the two parties into mediation to work out their differences.
It’s clear the court really wants them to work things out themselves: “Prior to the Judicial Branch vindication of the people’s constitutional right to three independent, functioning branches of government, the other Branches should have the opportunity to resolve this dispute.”
For now, at least, both sides have said they want to go into mediation in good faith. If that goes well, they could strike an agreement and the governor could call a special session to re-pass legislative funding and any other outstanding issues.
If things don’t go well, they could end up back before the state Supreme Court for new oral arguments and a new ruling could be issued. It’s a tough choice for legislators, who risk getting a similar ruling from the court the second time around on the constitutionality of Dayton’s veto.
But the alternative may even be less palatable for lawmakers, Carleton’s Schier says: negotiating away bills Dayton already signed into law.
“What incentive do Gazelka and Daudt have?” he said. “They see that their institutional power diminishes if they cave at this point. They are going to see this as a real threat to their existence.”
A contrarian point of view
IMO, the Supreme Court reached the right result but for the wrong reasons. At bottom, this case presented a political question which should have lead the court to abstain from ruling at all. Here’s a link to a quick description of the doctrine:
https://www.law.cornell.edu/wex/political_question_doctrine
Both the Legislature and the Governor approached this as a political contest: the Legislature by attempting to coerce the governor into signing a bill or see the Department of Revenue go unfunded, thereby threatening the ability of the executive branch to continue to function; the Governor by vetoing the funds necessary for the Legislature to operate. It was the ultimate in political brinksmanship, more so than even the threat of a government shutdown triggered by a mere failure to agree on a budget.
Yes, the effects on the State and its citizens could have been dramatic had the parties not come to an agreement. But by bailing them out in the Solomon-like manner it did, the Court let them off the political hook. Had they continued their childish behavior (on both sides) they would have had to answer to the voters, as well they should have. Instead of leaving them to their own devices, the Court ignored a fundamental rule of judicial interaction with its co-equal branches of government, weakened its own standing in that triumvirate, and produced a legally baseless and principle-free decision which can only lead to further judicial refereeing in the political arena.
Yes and no – it’s just a do over
The Court is following that line of thinking and it was apparent in their questions in the hearing. The Court did not want to continue to referee as recent years. Dayton has been saying, in essence, that if he and the Legislature can’t agree, then let someone else make the decisions.
Both sides were dumb in this. Call is what you will, but the Legislature sent a budget to Dayton and closed shop. If they stayed open in case Dayton was to veto, which he did, they would have a much bigger standing in this. But they did not. Dayton has a long history of not reading full budgets and approving things he ‘does not approve’ later on so no one is ever sure until the signature is done. But the Legislature should have kept the lights on in case Dayton did veto – you can say either side went back on an ‘agreement’ all you want but that does not matter in the end. It’s what is passed on and signed or vetoed that matters.
The question the Legislature is saying is that Dayton did something he could Constitutionally do but would have the effect of something that the end result is something that cannot be done by the Constitution. The court is saying this exact thing. It just wants to have the other branches try figure that out first.
You’re a bit mistaken that Dayton wasn’t aware of what was in the bill.
What you’re ignoring is that Dayton and the repubs came to a gentlemens agreement which the repub broke.
Had he vetoed this broken promise repub bill, it would have led to a shutdown and many innocents would have been hurt…but as we’ve seen with repubs here in MN and on the federal level, shutting down the govt doesn’t bother them…no matter how costly or who it hurts.
repubs broke their promise to Dayton
If Dayton’s veto was incorrect, so was the portion of the bill that unfunded the dept of revenue.
What many ignore is that if Dayton had vetoed the bill, it would have cost a govt shut down that would have hurt many and it seems that with this poison pill bill, that this repub party did not care about how many would be hurt with a shutdown.
These repubs had made a gentlemens agreement with Dayton and then refused to honor that agreement…but…for me…I see little honor in todays repub party, whose only value seems to be the wealthy and not us.
If you disagree with that…show me something they’ve actually done for the working populace instead of just the wealthy. Sure…sometimes they throw in a pittance for us that expires in a year or two…but that’s it.
It’ll be interesting
…to see how this all works out down the road a year or five from now. In the meantime, and keeping in mind that I’m a rank amateur in these matters,I can’t agree with Mr. Hamilton’s final conclusion that the MN Supremes’ decision is “legally baseless” and “principle-free.” Judicial refereeing in the political arena seems to my unpracticed eye to be something we’ve had since…um… Marbury v. Madison, which suggests quite a bit of legal precedent and principle.
I do agree that the dispute has many of the aspects of an elementary-school playground dispute, which does nothing to enhance the reputation of either the state’s Republicans or the Governor. The court is suggesting that both sides grow up and behave like adults. It remains to be seen whether the advice will be heeded.
The legislature gave the governor the power by adjourning
If the legislature had sent the bill while still in session they could pretty easily override a veto shutting down the legislature.
Yes and No
I think you may right in the sense that there’s enough discord among the MNDFL that they could have provided the necessary override votes, but… Had they stayed in special session or gotten it done during the regular session, Dayton would likely have just vetoed the entire bill like he had previously. In THAT scenario Republicans would either have to adjourn without a budget or go back to the negotiating table.
Dayton was faced with the problem of getting the legislature BACK into yet another special session after they violated the spirit of the first special session,and he was trying to do it without shutting the government down again. Republicans have been steadfastly refusing to negotiate thinking they had an ace in the hole, they assumed they’d win their suit outright. Now they have what? 17 days of funding left? Since filing the lawsuit and winning the first decision Republicans have done nothing but dig in and practice pointing a finger at Dayton and saying: “Ha ha!”. Ooops.
Let’s make a deal
It is clear that Dayton wants Republicans to give back at least a couple things that they got him to sign by using the threat of defunding the Department of Revenue and all of state government.. Pick the points you are willing to give up, make an agreement and end this game of legislative chicken.
The idea of cutting taxes on tobacco was stupid, given how much government spends on the health expenses of smoking. Fewer of your wealthy patrons smoke, so that is much more in your interest to give up rather than the estate tax reduction for the top 1%. Likewise, give undocumented workers the right to drive legally. They will have to pass a test and demonstrate insurance coverage. Doing so will lower the number of traffic accidents and uninsured motorists, reducing uninsured motorist costs and saving lives.
The lawyers surprise me
I’m looking at the lawyers concerns about enhancing Dayton’s power and I’m actually surprised. The idea that future governors could somehow hold legislators hostage is a weird hypothetical based on bizarre assumptions.
This scenario is bizarre, and it’s unlikely to become routine, specially after this ruling. We have a legislative process that’s been working for over 150 years. All the court has decided here is that the Governor’s veto is a real thing, and it’s constitutional. Legislators have always had to contend with potential vetoes, all the court has said here is that l legislators can’t end run vetoes with clever provisions. This line item veto was an extraordinary response to extraordinary legislation, there’s no reason to assume that this is the new normal. As long as future legislatures don’t try to circumvent the executives constitutional powers with tricky provisions the legislative process will work.
Carleton’s Schier’s comments also puzzle me:
“What incentive do Gazelka and Daudt have?” he said. “They see that their institutional power diminishes if they cave at this point. They are going to see this as a real threat to their existence.”
There’s no “new” existential threat to the legislator here, they just have to accept the the fact they they need to have sufficient votes to make legislation law. This was a power grab, an attempt to get around the fact that they didn’t have enough votes to override a veto, and that effort appears to be failing at this point. Legislators will have the same “power” they always had, they just don’t get to claim powers they’ve never had before.. i.e. the power to force legislation through without the necessary votes. The “incentive” is the expectation that legislators do their jobs and produce budget bills the governor will sign into law rather than drive the government into perpetual crises.
Republicans just have to enter negotiations in good faith rather than seeking a “win” at the cost of governance. The whole point here is to govern on behalf of constituents,not acquire more “power”. But then totalitarian regimes tend to emerge from the “right” for a reason, and here we see Republicans placing their desire for more power above their responsibility to govern.
“The idea that future governors could somehow hold legislators hostage is a weird hypothetical based on bizarre assumptions.”
What? That is exactly, and precisely what. just. happened.
My God. The denial involved here is miles deep.
You can justify Dayton however you choose, by all means. But, please do not tell us to ignore the steaming pile of FACT sitting on the floor and expect a serious response.
And to suggest this won’t become routine is again denying the reality of politics in the current year. It is 100% guaranteed to be repeated at the very next opportunity. And very possibly, you won’t like it next time around.
This year will pass
All this really means is that Republicans have to negotiate with the governor if they want his signature on bills they pass, they can’t force his signature or trick him into provided a signature. Lawmaking has always been a two step process, bills pass, governors sign. With any luck Republicans will figure out that this business of turning EVERY session into a do-or-die showdown with a threat of shutting the government down has run it’s course. Let’s go back to the days where everyone did the work on the front end for the most part rather than tacking a showdown onto the back-end every year. Separate branches of government aren’t about perpetual crises, they’re about shared responsibility to govern. Republicans ran out the clock and sent 10 bills up for a veto on strict party-line votes, that’s just plain stupid, irresponsible, and unconstitutional. You’re not suppose to pass bills and dare the executive to veto them, you’re supposed to do the work on the front end so the executive will sign the bills you send up… THAT’S how legislation works. Otherwise you manufacture crises.
Agreed
All this hand wringing that the governor now has more power is making mountains of molehills. The governor always had the line item veto power. I don’t think the SC made it an unlimited power any more than it already was. Now, if there hadn’t been extenuating circumstances, including the poison pill designed to limit the governor’s power of veto, I don’t think that the SC would have come to the same conclusion. And I think that this decision would hold if, in the future, a governor line item vetoed the legislature’s budget without a poison pill.
This is a very fact-dependent case. It will likely only set precedent for this specific fact pattern. That is, it’s probably applicable only in the case of a line item veto of legislative budget that includes these two things: 1. a poison pill that effectively overrides the governors general veto power; and 2. a specific route for recourse.
It’s also noted that, while the budget requires a very thorough description of the source of every expenditure for everything else (including the executive branch’s expenses), the legislature’s budget is a bit of a black box. The failure to line item budget the legislature’s budget gave Dayton the initial excuse to line item veto. So, it might be in the legislature’s best interest to rectify that issue.
Also, this isn’t schoolyard BS. This is our governmental system, and when the MNGOP decided to play like it’s the schoolyard, the Governor came up with a pretty clever answer that hurt the fewest Minnesotans possible. The veto wasn’t done in a vacuum and wasn’t done without a route for recourse. This is NOT a “both sides” issue.
Double agreed
AND… I have to say that by upholding the veto the court (intentionally or not) fired a long overdue shot across the legislative bow- These guys have for decades thought it was great fun to cut everyone else’s budget and shut other branches down (including the court budgets). I mean how fun it would be to shut down the department of revenue… am I right? On one level this is basically a case of Republicans getting a taste of their fiscal “responsibility”.
A further loss of confidence…
The MN Supreme Court decision is simply another reason why so many people are losing confidence in both our state and federal government.
50+ years ago I learned we have 3 co-equal branches of government. This MN Supreme Court decision effectively says the governor is a king or queen that can rule over the other two branches of government in the last few minutes of a legislative session. This irrational and illogical decision is the result of Governor Dayton appointing 4 out of the 6 deciding judges. And people still can’t understand why there is such a low level of confidence in government and our two parties.