Thursday, December 31, 2009

Gearin Decision Challenges Parties to Work Together Courageously

In the last legislative session, the legislature presented a full complement of appropriation bills to the governor for signature. The governor signed these bills and they became law. In some cases he exercised his line item veto, removing some expenditures from the bill, unless the item was added back in by a 2/3 vote of the legislature. This is how our Constitution requires the two branches, executive and legislative to work together. However, it turns out that the governor signed bills with appropriations greater than the amount he wanted to spend. The bills that he signed had total appropriations exceeding the total amount of revenues that the governor was willing to tax for. In short, he intentionally created a deficit by agreeing to spend more than the amount he was willing to tax for. Now in Minnesota, the Constitution prohibits the State from spending more than it collects in revenue.

The Governor, it turns out, evidently believed that by this device, he could acquire far reaching power to control the entire budget, without involving the legislature. He did this by vetoing revenue bills (taxes, fees, etc) that raised the revenue needed to fund the legislation he signed. He then took the position that he could "unallot" any appropriation of his choosing, even if he, the governor, had previously signed that appropriation into law. This is the context in which several plaintiffs sued the Governor, contending that the Minnesota Constitution prohibits the Governor from intentionally creating a deficit and then using that deficit to take sole power over Minnesota Government.

One nefarious side effect of what the Governor did is that it exacerbated the lack of cooperation that should exist between the legislative and executive branch. We have a government divided by party. Government works best when both parties attempt to arrive at a common solution which harmonizes and reaches to the middle. In addition, the Governor's course absolved the DFL of all responsibility for solving problems. Both parties could feed their base, instead of creating an efficient solution to the present budgetary crisis.

Yesterday, District Judge Gearin of Ramsey County granted a motion for temporary restraining order on behalf of plaintiffs challenging the Governor's use of the unallottment power to defund programs which had been authorized and for which funds had been appropriated by legislation passed by both houses of the legislature and signed by the Governor. If you want to read the Judge's decision, you may read it by clicking on this link. For some reason, this decision divides most of us along partisan lines, but it should not. The decision is not at all remarkable. It upholds one of the most basic principles of our form of government. As the Judge's decision points out: The Minnesota Constitution Article 3 Section 1: "The powers of government shall be divided into three distinct departments." These branches, which are co-equal are carefully allocated powers by the State Constitution. Under the Constitution, the Governor is allocated the power to prevent passage of legislation with a veto, which can then be overridden by a 2/3 majority of both houses, Senate and House.

As the Judge wrote:

The citizens of Minnesota, as well as the entire country, are the heirs of our founding fathers, the drafters of the United States Constitution. It was their brilliance that resulted in the creation of a government consisting of three co-equal branches. This results in a system of checks and balances that ensures that none of the three branches has absolute power. This system of checks and balances was embraced by the writers of the Minnesota Constitution in themid-19th Century and continues to the present day in Minnesota, as well as in our country.

The Governor gets one free shot to stop legislation, and that is before he signs a bill into law. In fact, the Governor has line-item veto power in Minnesota. He may exercise his line item veto removing specific line item appropriations that he doesn't like. This power, however, is subject to the legislature's ability to override or to pass different legislation that addresses what the Governor has done.

Now in the case in question, the legislature passed and the Governor approved, an appropriation for the General Assistance Medical Care program. In other words, the Court was dealing with an appropriation that the Governor himself approved. What happened, this is quite simple. The Governor himself intentionally approved appropriations for a variety of programs while intending not to sign legislation that would fund these programs. As the Court wrote:

In the beginning of June of 2009, Defendants took steps to unilaterally balance the budget by unallotting specific programs enacted into law during the session. By exercising his unallotment authority to apply to reductions in revenues that were determined by a forecast made before the budget had even been enacted and by not excluding reductions that were already known when the budget was enacted, the Governor crossed the line between legitimate exercise of his authority to unallot and interference with the Legislative power to make laws, including statutes allocating resources and raising revenues. The authority of the Governor to unallot is an authority intended to save the state in times of a previously unforeseen budget crisis, it is not meant to be used as a weapon by the executive branch to break a stalemate in budget negotiations with the legislature or to rewrite the appropriations bill.

In plain language, the Governor purposely approved too much spending so that he could arrogate to himself both the executive and the legislative power.

When a decision like this is issued, people on both sides typically vastly overstate the implications. Proponents of the decision and opponents of the decision alike are most certainly going to claim that the victory (defeat) has monumental implications. The decision is important, but it is much narrower than it first appears.

This decison merely says that if the Governor wants to limit funding, he has to do that by vetoing the funding.
In this case, the governor signed the nutritional appropriation into law. He approved the funding. He could have used his line item veto, but instead, he made it the law of our State. What makes this case special is that the Governor intentionally signed into law appropriations that totaled more than he, the Governor, was willing to fund with revenues. The unallotment statute, the Court explains, was not designed to give the Governor the power to defund an appropriation all by himself, unless the funding shortfall was created by an unanticipated deficit.

If I have the time, I want to write some more on the implications of this decision for education. Judge Gearin's decision recognizes several important constitutional principles relating to separation of powers. But the parties before the Court were advocating about an issue of benefits for indigent Minnesotans, a funding responsibility that is important, but not guaranteed by the Constitution. The Constitution contains a paramount duty upon the State's Constitutional officers to provide an efficient system of public education. As our elected officers grapple over a solution to this crisis, all parties must recognize that when they are finished, they have not done the duty that they were sworn to, unless they have left us with an efficiently properly funded system of public education. Under the current budgetary crisis, they cannot achieve this objective unless they arrive at a compromise which gives school districts both the revenues they need and the powers they need to control costs. Accomplishing that objective will require courage and depth of thinking.

Happy New Year


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