Wednesday, May 5, 2010

I Told You So: The Unallotment Decision Was Predictable

The Minnesota Supreme Court’s unallotment decision was predictable. As I argued in a June 16, 2009 MinnPost op-ed, several constitutional and statutory arguments suggested that if Governor Pawlenty used unallotment to balance the budget as he promised, a court would find his action illegal.
The governor did what he promised and the Court found it illegal. In a 4-3 ruling, with Chief Justice Magnuson writing the majority opinion and casting the deciding vote, he crafted a classic opinion that actually is the model of judicial restraint. In reaching its decision, Magnuson noted that the Court could have ruled on either statutory or constitutional grounds but that since it could handle the matter by statute, it would not address the constitutional issues.
Then the court read the statute, sought its best to interpret it, found it vague, and then deferred to traditional rules of statutory interpretation to argue that it could not have been the intent of the legislature when it drafted the unallotment law to give the governor broad authority to use this power to balance the budget. A balanced budget instead was a prerequisite to using this power when there were unanticipated shortfalls. Those grounds did not exist here, the governor loses on statutory grounds. But both Justices Page and Paul Anderson in separate concurrences suggested that the governor might also have acted unconstitutionally and that the entire unallotment statute may be void.
But the unallotment decision is also narrow in the sense that it legally only affected the Minnesota Supplemental Aid–Special Diet Program; a mere few million out of the $2.7 billion unallotted. The decision does contain language suggesting all of the unallotment is void, but it technically will take additional lawsuits to overturn the governor’s actions.
Two questions remain: What's next given the opinion and who are the winners and losers as a result of the case?
What is next is that the governor and the legislature should consider the entire $2.7 billion unallotment illegal and assume that they need to fix it before session ends in few weeks. They should have planned for this decision but no one did. Now with just weeks to go there is no plan in place. Look to see either the legislature ratify the unallotment or suggest other cuts. They might try to raise taxes but there is no way the governor will support that. Unless the legislature backs down, look to see a suicide special session this year. The only thing that might change this is if the Republicans fear electoral reprisal from voters if they support cuts and they vote with Democrats out of raw political survival. The chances of this are slim.
Winners and losers? Of course the plaintiffs and Galen Robinson of Mid-Minnesota Legal Assistance are the major winners. They get their money for the diet program. They also brought the case when the DFL chickened out last year and decided not to go to court. But if the legislature ratifies the unallotment, their actions may be for naught.
The second winner is Chief Justice Magnuson. A former law partner of the governor who appointed him to the bench, Magnuson has spent nearly his entire time fighting the governor’s budget cuts to the judiciary. Unlike the other three Pawlenty appointees to the Supreme Court who supported the governor (possibly with dreams of getting named chief justice), Magnuson’s announcement before the case that he was stepping down from the Court liberated him to follow what the law told him to do. The final decision was 4-3, with the Chief Justice casting the deciding vote (as I predicted it would be). His decision will be remembered as a courageous one, marked with independence and integrity.
Now the losers. Pawlenty of course lost legally and politically. His macho use of unallotment last year was a presidential campaign signal about how he would act decisively with Congress to balance the budget without taxes. Now that the action is illegal, it is harder to see this as helping his already moribund presidential momentum. But Pawlenty’s official statement reacting to the Court decision demonstrated a lack of grace. He condemned the decision and said he disagreed with the Court but would comply. He could not accept that he did anything wrong.
The second loser is Speaker Margaret Anderson-Kelliher and the DFL. She and they opted not to challenge the unallotment last year and now look foolish. Now with the Speaker the DFL convention-endorsed candidate for governor, she is faced with numerous problems. The last thing she wanted politically was for the Court to do what it did. Whatever she does with the budget she will get the blame. As Speaker she is the face of the legislature and will be tagged with the final results. The last two years the governor has outflanked her politically. It is unlikely before this decision Pawlenty and the Republicans were going to make life easy for her, now it will be even worse as they seek to embarrass and politically damage her.
The third loser is Tom Emmer, the Republican gubernatorial candidate. He filed a brief in this case supporting the governor that was effectively rejected, and if he is elected governor, he will have one less tool at his budget disposal.
Finally, other losers include law professors David Stras and Michael Paulsen of the University of Minnesota and St. Thomas law schools. They filed a brief in this case drawing upon federal constitutional principles to defend the governor. They might know the U.S. Constitution but they did not understand Minnesota constitutional law. Then there was Patrick Robben, the governor’s legal counsel. His performance at the oral arguments in the case was awful; answering questioning more supportive of the other side than of the governor. He did nothing to help his boss int this case.
But the biggest loser in all this are the citizens of Minnesota. The State’s budget is a mess due to the political ambitions of its elected officials.

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