Selections from the House’s amicus brief

by Jeff Rosenberg | 83 Comments

Here, for your reading pleasure, MNpublius presents a few selections from the MN House’s brief of amicus curiae (courtesy of Politics in Minnesota) in the unallotment lawsuit against Tim Pawlenty.

As I read it, there are two main issues. First, Pawlenty’s actions stretched far beyond what is allowed by Minnesota’s unallotment law. His unallotments do not meet the legislature’s original intent for that law. Second, if the court finds that Pawlenty’s actions were legal under the unallotment law, that would mean that unallotment itself is unconstitutional, as it turns the separation of powers on its head. Budgeting is strictly a legislative role, not an executive one.

Once again, I’d like to point out how crucial this decision will be for our legislature now and in the future. Even Republican lawmakers should be supporting the House’s amicus brief. While they might want the Governor, a fellow Republican, to prevail for policy reasons, in the long run Republican legislators will be better off ensuring that the power of the legislature is not crippled by unallotment.

Below are a few excerpts from the brief supporting both of the House’s main arguments. I’ve stitched a number of small pieces together, and not necessarily in order, to try to give a relatively concise view of the arguments. All emphasis is mine. If you don’t think I’ve done it justice, leave your interpretation in the comments.

1. Pawlenty’s actions illegal under unallotment law

Minnesota governors have only exercised the unallotment power five times since its initial enactment in 1939. The largest previous unallotment was $278 million, undertaken by Governor Pawlenty in 2003. …unallotment has never been used at the outset of a biennium to close a budget deficit anticipated by forecasts and created by enacted appropriations bills. All of the previous unallotments related to the second year of the biennium, when revenues fell short of the forecasts used to enact or modify the budgets.

The language of the [unallotment] statute requires the commissioner to determine that probable receipts will be “less than anticipated” before the unallotment power is triggered. This plainly has not occurred, since Defendants and the legislature have used exactly the same estimate of probable receipts – the February 2009 MMB revenue forecast – in preparing and enacting the state budget and in imposing Defendants’ unallotment.

The statute limits use of the unallotment power (after the necessary determination that probable receipts will be less than anticipated) to reducing allotments only to the extent “that the amount available for the remainder of the biennium will be less than needed…” Use of the term “remainder” strongly implies that the determination is to be made after the biennium has begun. A dictionary definition of “remainder” is “a remaining group, part, or trace.” Since this refers to something less than the whole, this supports the interpretation that the power only applies to unanticipated reductions that occur after the biennium has begun. Otherwise, the comparison would be made to the entire biennium, not a part. This is, of course, consistent with the problem that the unallotment statute was intended to address – i.e., unexpected drops in collections that occur after the budget is in place.

2. If Pawlenty’s actions are legal, then unallotment violates the separation of powers

The power to make laws is fundamentally a legislative power. Appropriations (and thereby state spending) must be made by law. Because of this, state budgets are inherently a matter for the legislature.

Defendants’ actions and the position advocated by them in this case raise grave issues under the separation of powers doctrine. Stripped to its essentials, Defendants’ view of the statute would allow the legislature to pass a state budget that spends well in excess of projected revenues ($2.7 billion in this case) and delegate to the executive branch the immediate responsibility, before the budget enacted by the legislature had taken effect, for cutting back spending to match those revenues.

if the law authorizes defendants’ actions, it would even permit the executive to effectively overturn a duly enacted appropriation that was re-passed over an item veto by the governor.

…the situation leading to Defendants’ invocation of the unallotment statute is anticipated by the Minnesota Constitution. Disagreement between the executive and the legislative departments is part of the inherent tension in a system of separated powers. For this reason, the constitution provides for annual legislative sessions, gives the governor authority to call special sessions, and requires the governor to faithfully execute laws duly enacted. One mechanism for resolving disputes between the executive and legislative departments is not permitted by the Minnesota Constitution: Delegating purely legislative power to another department or entity.

November 23, 2009, 12:00 pm | Category: General |

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