The Supreme Court of Minnesota (SCOM) sent Minnesota’s government into a tizzy a few weeks ago when they tossed Governor Pawlenty’ s unallotment – his legal line-item veto – of billions in spending in the previous budget.
Via NewsQ, Senator Julianne Ortman says the SCOM swerved into activism in throwing out the unallotment – and the decision was based on politics:
In the courts’ analysis, and to justify their preferred result, they reasoned that the language of the [unallotment] statute was ambiguous. They implied a condition into the statute that didn’t exist, holding that unallotment may only be used after the Legislature and governor have already adopted a balanced budget.
Apparently Chief Justice Magnuson’s majority believed its decision would resolve the current disagreement between the governor and Legislature, but it had no such result. The 70-year-old statute was the agreed-upon method between Minnesota’s executive and legislative branches for resolving an impasse like the one we have just seen: the House and Senate DFL leadership could garner enough votes to pass a revenue-raising bill, but they could not muster enough votes to override the governor’s veto. The unallotment statute was one tool available for breaking an impasse — one that many disagreed with in these circumstances, to be sure, but a tool we cannot live without.
Members of Minnesota’s judicial branch should never have inserted their views into the issues between the political branches. These judges over-reached their own constitutional authority, which is restricted by the Separation of Powers Clause, Article III, Section 1, which provides that no branch can usurp or diminish the role of another branch.
Our system is such that there could be consequences…:
If his actions were heavy-handed or overly political, voters in the next election could hold accountable those who supported his actions. If voters agreed, as I did, that the governor’s use of unallotment was absolutely necessary in response to our state’s historic economic and financial crisis, then they could act accordingly in 2010. Instead, the court got political.
Which would involve people – and the media – paying attention to what the SCOM does.
Can the Legislative branch cede or even abrogate its own constitutional authority? I would say they can not. The legislature enacts laws, the executive enforces laws, the judiciary interprets laws.
Can the Legislative branch cede or even abrogate its own constitutional authority?
Well, they’re not supposed to, but as a practical matter legislative branches do it all the time. The primary way it happens is when a legislative body drafts a law in a sloppy or ambiguous way and then the statutory language gets kicked to the courts for interpretation, or worse to a bureaucracy to interpret.
These days very few people are willing to challenge the courts, so they are taking advantage.
I’ve had reservations about the temperament of the Minntesota judiciary ever since the courts voided the original MPPA without voiding hundreds/thousands of other laws passed the same way on “unrelated” bills.
Can the Legislative branch cede or even abrogate its own constitutional authority?
If they don’t, we wind up with 2600 page bills that we have to pass to find out what’s in them.
Oops, maybe that’s not the right example.
In all seriousness, Mr. D. is right, although I’d point out that they tend to use words with coded meanings like “reasonable” and “aggressive” to try and guide the executive into forming regulations. Most legislators don’t want to get involved in the nitty-gritty simply because there’s too much chance for them to do something stupid like deny coverage to themselves by crafting particularly dumb language that could come back to haunt them at election time.
As I pointed out in another thread, Pawlenty probably took care of the unallotment problem by appointing Stras to replace Magnuson. The problem of an “activist” judiciary remains, however, and the unallotment decision wasn’t based on the legislature abrogating their duty, but rather they wrote 3 different reasonings (2 tangentially hit the idea that the legislature should be in charge of spending) for 4 justices and about all they agreed on was that Pawlenty shouldn’t have done unallotment to fix an unbalanced budget passed by the legislature. Not that I understand that reasoning, since doesn’t the legislature adjourning without balancing the budget by itself define a budget emergency and thus trigger the need to do unallotments?
In fact, if the GOP were smart they’d make sure an astroturf organization challenged the unallotments now so that the case would hit SCOM when Stras has taken his seat. Because the DFL caved (possibly aided by what they saw as the likelihood of losing because of the replacement of Magnuson) and passed a somewhat responsible budget folks won’t have standing to challenge unallotment in this next budget cycle absent another downturn in the economy, and the unallotment decision was pretty narrowly written so that it could be effectively overturned by the right choice of testcase.
As to why the GOP should care about preserving unallotments, consider the cases where a DFL governor would ever use that power rather than calling the legislature back into session to raise taxes. I’m sure there’s a DFLer somewhere who might do that (you find things even at 9-sigma distributions in a large population after all), but no DFL politician would ever do such a thing.
I think Senator Ortman’s point is spot on – the SCOMN’s ruling was predicated on adding a requirement to the (rather detailed) statutory process for the governor to exercise his unallotment power that didn’t previously exist. If the legislature had intended to add an additional requirement that limits when the governor can use it, it would be a simple matter to add that limiting language to the statute. Since they chose not to include it in the statute, it is not the place of the courts to add it after the fact.
Something to keep in mind is that if the new SCOMN reverses this decision (as I think it should), expect to see a greater call for replacing Minnesota’s judicial elections with “retention elections.” Under a “retention election,” Minnesotans would no longer have the right to replace a judge with a new one of our choosing. The most that we could do would be to vote against retaining a current judge and their successor would be chosen for us based on a government panel. Much as I think our current judicial races are vastly skewed in favor of the incumbent, if you think judicial activism is a problem now – wait until even the modest check of elections is removed.