David Schultz had a great article in MinnPost yesterday analyzing the arguments against unallotment. I’m not a lawyer or legal scholar, and I can’t speak to how accurate Schultz’s argument is. But it is certainly interesting, so I’ll just relate a few highlights. The whole piece is worth a read.
…there are two reasons to argue that the governor’s interpretation of §16A.152 is incorrect. First, it is unlikely that the original intent of the Legislature was to give the governor this broad of a power to unallot. Its original passage was to give the governor power to address small budgetary shortfalls, not make cuts that amount to major programmatic changes. Second, there is a basic rule in law regarding statutory interpretation. One should interpret laws to avoid absurd results and avoid conflicts with other laws. Here, if one accepts the governor’s reading of unallotment, it would mean he alone has the power to change fiscal priorities for the state or that he could use this power to negate laws establishing statutory authorized policies. One result is absurd; the other produces a conflict in the laws.
Unlike the U.S. Constitution, the Minnesota Constitution has an explicit clause that addresses separation of powers. Article III states: “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.” One could argue that this clause protects legislative authority even more so than the federal Constitution, questioning whether unallotment as construed by the governor is permissible.
If you claim the power to unallot could you not also claim the power to allot? Exercising this control in a planned fashion is tantamount to eliminating a branch of government. That could not have been the intent of the law.
More thoughts on legal complications with Pawlenty’s unalottment:
MN Senator Linda Berglin: Pawlenty’s HCAF two-step exceeds his unallotment authority (Steve Perry’s PIM article). http://bit.ly/Pvs7J
From the Senate! From the Senate! And a name. Sounds like she’s taking a stance on our behalf…
unallotment!
So the only way unallotment can be illegal is if the law that allows it is unconstitutional. Either way the bigger question is, then what? Once again law suits would be the DFL using a strategy with no end game. They can’t force the tax increases they proposed which means the spending would have to be cut someplace. The DFL had the chance to decide where to cut during last session and will have another chance to move things around during the next one. Senator Cohen (DFL) is right when he said “we allowed this to happen”. Law suits in this case are sound and fury signifying nothing. Besides any suit would take longer than this budget cycle. The only possible reason for a suit would be if the DFL wants to invalidate the law so it can not be used again. What happens with budget shortfalls at that point who knows.
KH,
The obvious happens if unallotment is invalidated. The governor and the legislature have to compromise until they get it done. the governor refused to compromise even one little bit because he had this tool to wield. Without this tool, TPaw would have had to actually act like a democracy loving adult, instead of a dictatorial bully.
Alec
So you mean a government shutdown. The thing DFL leadership so desperately wanted to avoid this year that they sent Pawlenty all the spending bills without securing the necessary funding thus handing Pawlenty the power to unallot.
A government shutdown will always hurt Democrats more than Republicans since it disproportionately hurts those who will never vote Republican anyway. It is the lovely thing that happens when you decide to control huge amounts of society and the economy through democracy. Everything is decided based on politics.
Both sides…. not just TPaw…. both sides went into this spat knowing what the rules of the game were.
I personally think that it was silly all around. The badmouthing began early, both from TPaw and from MAK and Pogemiller. I, too, wish there would have been more focus on solutions and less on posturing. From all.
With all that said, I would love nothing more than to see a comprimise. I’ve been saying for weeks that I’d be willing to have a 1 to 2 year tax increase to help get through this. The trouble is that I’ve never known a tax increase to be truly temporary. The vacuum sound at the other end of the tax-and-spend cycle will always find a way to use it.
If you want to watch an illegal proceeding, just view the last 7 minutes of the MN State House and MN State Senate session this year. The DFL leaders can’t even get parliamentary procedure right. They have the majority in the House, and veto proof majorities in the Senate and still couldn’t get anything done for 5 months. The spectacle of passing the tax bill in the last 7 minutes is laughable.
David Schultz is a terrific scholar and really knows his way around state constitutional law. This article is worth paying attention to. His reasoning is sound (that doesn’t mean that the Court would accept it, but it is a good argument).
I hope Prof. Schultz follows this up with commentary on what effects a lawsuit challenging T-Paw’s power would actually have. The wheels of justice grind slowly at times…