Altered States: GOP Denial and the War Against Reality

Denial isn’t just a river in Egypt

Ever wonder what state politicians live in, especially Republicans these days? From the looks of it, it is the state of denial and it is a state where the poor, elderly, students, immigrants, working class, and the future do not live or matter.

Look at the budget process at both the federal and Minnesota state level and it is clear that many in the GOP are engaged in a war against the poor, elderly, students, immigrants, and working class. In Minnesota, the GOP proposed budget cuts that slash higher end spending, they are cutting money for health care for the poor, K-12 is taking hits, and local governments and their services are being targeted. At the federal level the cuts are also hurting the same constituencies, and in Michigan the governor supports legislation cutting back on unemployment benefits by six weeks. Talk about kicking people when they are down!

None of the above even includes the war on public sector unions in Wisconsin, Ohio, and other states, efforts to pass election voter ID laws to address nonexistent fraud, and of course restrictive abortion laws in Arizona, North Dakota, and perhaps Minnesota. Nor does it include the war against the EPA and it ignores global warming. Moreover, the cuts to education and infrastructure investment seem to ignore the need to invest in the future. Actually, except for wanting to protect a few fetuses, there is no regard for the future. Even with the fetuses, once born they are on their own and too ignored and condemned to attend poorly funded schools and drive on bad bridges and roads, unless they happen to be lucky and be born privileged.

It is clear who the constituency of the GOP is. They represent a state of America populated by corporations, the rich, male, and those who hate government. They do not seem to believe that when things get rough we have an obligation to help one another or that perhaps those better off and capable of sheltering the burdens or costs should do that to help out the less fortunate. It is an antisocial philosophy, reflecting the individualism of the marketplace or the community of civil society. It is Ayn Rand’s vision.

They believe that the free market is wonderful and that it can solve all our problems, while ignoring the recent economic crash of 2008, its lasting legacies, and the role government played in forking out taxpayer money to bail them out. They ideologically believe that cutting government, taxes, and regulation will spur on the economy, yet this philosophy is no more than supply-side economics rehashed yet again for the Nth time.

And where is this ideology taking us? At the federal level we have no budget and we flirt again with a government shutdown. In Minnesota, the GOP keep passing cuts and it is clear Dayton will veto them, making a special session if not a July shutdown possible. It is a philosophy of ideological purity, bent on the belief that compromise is bad and that anything short of a 100% win is a loss and a sacrifice of principle. Better to bring down the government than compromise. Better to hurt the least advantaged than make the more affluent help out. Better to assume the market will work at its optimum in theory than think about how it works in practice and in comparison to government in reality.

Academics are often accused of living in an ivory tower. Yet the tower or state that the Republicans are living in seems so much more detached from reality than any university classroom. It is a state of denial–denying the real world implications of their choices and how by simply serving their constituents greedy interests they are hurting society in general and sacrificing the future to the present. This is an unsustainable philosophy yet somehow it persists, partly because the Democrats are too weak, ineffective, or bought off by the same interests to challenge them, the public often too apathetic or ignorant to care or know, or the media often unable or willing to report the story about this reality.


A Note on the Economy

The stock market slowly climbs and corporate profits have rebounded, yet for most Americans there is little real sign of improving economic conditions. Housing prices continued to slide for the sixth month in a row, and there is little indication that banks wish to lend money and individuals want to buy homes for fear that their investment is not worth it. Millions of houses are poised to enter foreclosure and there is no sight that the real estate market is rebounding. But of course the good news is that the federal government made $24 billion on its loans via TARP to prop up banks and other financial institutions.

Additionally, consumer confidence again slipped last month and while payroll has increased, there is still no sign that businesses are ready to pump money into hiring. Instead, as the Financial Times reports, mergers and acquisitions are dramatically up.

It is now clear what businesses are doing with their money. They are returning to profitability, borrowing at low cost, and using the cash to buy out competitors, such as what AT&T is doing with T-Mobile. They are not investing in jobs or the economy. Welcome to the status quo!

Dodd-Frank, the federal law to restructure the financial markets, was supposed to address some of these problems. Yet it is clear that after the 2008 meltdown and crash little has changed. Banks helped destroy the economy, got bailed out, are again making tons of money and have bonuses to pay their executives, yet they refuse to loan money. Additionally, businesses are not hiring. It seems that the banks, corporations, and the rich are doing well, and the rest of us are being ignored. They got a free lunch in terms of bailouts from the taxpayers and the rest of us continue to pay for their mistakes.

Yes GOP policies are to blame for much of this, but the Democrats seem no better here. They hardly fight and Obama’s surrender on extending the Bush era tax cuts, while perhaps politically savvy, was and remains bad policy that hurts the poor and middle class. Last December Jesse Jackson and Pat Buchanan agreed the tax cuts were bad policy. Buchanan stated the cuts would exacerbate the deficit and Jackson asserted that tax cuts for the rich then would mean service cuts for the poor this year. Both were correct. The economy is marginally better now than in December, and it is clear we have failed to make changes to address the basic problems that 2008 revealed. We seem to have moved onto the future, assuming all is fine, in the state of denial we live in.

Obama and Libya: The Authority to Act? (Plus a note on Pawlenty)

Muammar Gaddafi is an evil man who sponsored terrorism, suppressed, democracy, and has killed and tortured his people. I cheered when Libyans rose up against him. I supported the US and western embargo, the freezing of assets, and doing what we could to support the opposition. Gaddafi has to go.

But the same can be said of Kim Jong-Il in North Korea as well of Ahmadinejad in Iran, Mugabe in Zimbabwe, the leaders in China, and a host of other autocrats across the world. It would be terrific if they were swept aside by their people and democratic societies and governments replaced them. It wold also be wonderful if the US did all it could to encourage this–getting behind democracy and the people.

Yet the problem for the United States and Gaddafi is special–the U.S. has decided to use armed force to assist the opposition. This use of force raises three problems: 1) presidential authority to act; 2) what is distinct about Libya; and 3) what is the end game for the US?

Presidential Authority to Act

What constitutional authority does President Obama have to justify his deployment of American military force to enforce a no-fly zone in Libya? This is not clear.

The two sources of legal authority Obama can reference would be either the Commander-in-Chief clause of Article II of the Constitution, or the 1973 War Powers Act.

It is not clear how the Commander-in-Chief clause supports this action. The constitutional framers intended for Congress to be the dominant branch when it came to military and perhaps foreign affairs. Article I textually commits to Congress the power to declare war along with a host of other powers related to the military. Here Congress has not declared war and it is unlike after 9-11 when Congress did enact the Authorization to Use Military Force that gave Bush the authority (arguably) to deploy troops in Afghanistan. At least Bush had some legal authority to wage a war on terrorism, no matter how tenuous.

If Obama is relying on his Commander-in-Chief powers, it is hard to see how they come in. Libya has not attacked the US, it is not threatening vital interests, and it is not otherwise doing something that directly conflicts with American national security. Instead, to contend that the Commander-in-Chief clause gives Obama unilateral authority to deploy these troops is no different or better than Bush era assertions by John Yoo and others that the president had inherent constitutional authority to act. He does not.

There is no extra-constitutional authority for presidents to act. I discuss this issue in two articles. One is “ Democracy on Trial: Terrorism, Crime, and National Security Policy in a Post 9-11 World” that came out in Golden Gate Law Review and is located at http://works.bepress.com/david_schultz/15/ . The other is a piece entitled “Don’t Know Much About History: Constitutional Text, Practice, and Presidential Power,” http://works.bepress.com/david_schultz/11/ . This is a forthcoming piece is the University of St. Thomas Journal of Law and Public Policy.

Disputes over presidential power to deploy troops were supposedly addressed by the War Powers Act in 1973. It placed limits on presidential power to deploy troops for limited purposes, subject to consultation with and notification to Congress that the Act was being invoked. Here again Obama did not invoke the Act, although he does seem to reference it in terms of reporting to Congress. Had he actually invoked the Act, it might have provided clear support for his actions.

What Obama does seem to be invoking is Security Council Resolution 1973 that calls upon member states to enforce the no-fly zone. (Here is a link to his statement http://www.whitehouse.gov/the-press-office/2011/03/21/letter-president-regarding-commencement-operations-libya ) However, UN resolutions are not self-executing in the US. They cannot create presidential constitutional authority when none already existed. The president still needs to get constitutional authority. Acting as he did seemed similar to what Bush did when he sought UN support to invade Iraq in search of the non-existent WMD.

What should Obama have done? For what seemed like two weeks he dithered over what to do as the rebels advanced and then were beaten back. He should have been consulting with Congress, getting their support to act if the UN authorized action, or he could have clearly invoked the War Powers Resolution. But in any case, he did nothing and then perhaps acted as Bush would–relying on some vague inherent presidential powers.

Overall, it is possible Obama had legal justification to act, it is just not clear what it is.

What is distinct about Libya?

The second problem is what is distinct about Libya? Assume for now that Obama has the constitutional authority to act. Why Libya and why not Kim Jong-Il in North Korea, Ahmadinejad in Iran or Mugabe in Zimbabwe? Perhaps one can argue that resolution 1973 makes the difference. Specifically, world opinion and international law provide legal authority to act here and that is the difference. This may be a good legal argument, but what about the real politick argument for the US?

Libya is less of a threat to the US than Iran and Korea. From a strategic point of view it is hard to justify intervention. Korea and Zimbabwe are equally as brutal regimes. Why not them? Perhaps the difference here is that there is a popular movement to oust him and that is the reason why we are acting? Maybe the issue is about prospects of success in ousting him? All of these are possible answers yet I have yet to see a reason or argument that principally distinguishes Libya from acting in the other countries. Such a failure to clarify is what led Bush into Iraq and why the US is viewed as a hypocrite when it comes to us supporting or placating some repressive regimes, including in the Arab world. Why for example, did we not act in Bahrain?

What is the End game?

The final troubling issue is the end game for Obama? What are our goals and what are we trying to accomplish? If it is simply to enforce the no-fly zone that already seems to have been secured. Do we now walk away or does that now require a constant presence? Is it to prevent Gaddafi from killing and abusing his people? If so then what more does it require? It is to take Gaddafi out? Military action in the last two days seem to suggest the later two options are possible goals?

It is just not clear what the end game is and what we hope to achieve. Given comments by SOS Clinton and Obama in the last week or so, ousting Gaddafi seems the real objective but there is nothing in Resolution 1973, in the power of the presidency, or in any statement by Obama that provides a clear definition of what our objectives are. For those of us growing up during Vietnam one of the major lessons was that there must be clear objectives surrounding US military action, and that seems absent here.

I would like Gaddafi out. I thought Obama waited too late to act. He needed to line up congressional support sooner when the Libyan opposition was stronger. He needed to show how the US could stand up for Arab people and not their dictators. He had a chance to take decisive action but he dithered. He waited so late that is probably costing more lives. That is the real tragedy of human suffering. But the other tragedy is constitutional and political–he has failed to show by what legal authority he is acting, why Libya, and what his end game is. All of this raises difficult questions for Obama and the United States.

A Note on Pawlenty


No surprise that Pawlenty is forming a presidential exploratory committee. We have known all along he wants to run for president. He needs to run because he has no other prospects for what to do.
But creating the committee still does not solve two fundamental problems Pawlenty has. First he has no narrative or voice that distinguishes him from all the other GOP candidates who may decide to run for president. He has failed so far to make the case for himself.

Second, Pawlenty seems to be running against everything. He is running against Obama, against taxes, and against federal health care. He tells us all the things he is against and will not do but he has failed to state what he will do as president. It is as if he is running against and not for the presidency. If he hates the government so much why does he want to be president? I am perplexed.

There is a reason he is so far down in the polls. He has no identity to call his own. After neatly two years unofficially running he is behind Michele Bachmann who has been an undeclared presidential candidate for about three months. He needs to catch fire quickly and hope for a good Iowa bounce. So far there is no indication that it will happen.

Abortion Fever, Misogynists, and the War Against Women

The Minnesota GOP and the Minnesota Citizens Concerned for Life (MCCL) don’t trust women. Yet again they are proposing a series of bills that would restrict the right of women to terminate pregnancies. Yesterday and today I submitted written and oral testimony opposing HF 201 and HF 936. The first bill would seek to deny state funding to pay for poor women to terminate pregnancies and the latter bill is a flat ban on abortion after week 20.

I testified that both bills are unconstitutional, I am including my testimony on HF 936 below for all to see.

Just a few thoughts.

First, the MCCL folks like to use emotion, photos (of fetuses), and pejorative statements to demean women and doctors. They refer to them as abortionists. I think pro-choice folks need to adopt a different language to describe their position–misogynists. Essentially they are anti-women and do not trust them to consult with doctors to make appropriate medical and ethical choices. I trust women. Not everyone may reach the decisions I would reach but it is democracy and the value of pluralist democracy. Each of us gets to make our own choices. Moreover, I find it strange that the concern for life for many seems to end when the fetus exists the womb. At that point there is little support for health care and other support to care for the children.

Moreover, I find it interesting that this group talks about ethics. One can only be held morally responsible if one has a choice. Their aim is to take choice away. With no choice there is no moral responsibility. Hmm.

Testimony of Professor David Schultz
in Opposition to HF 936
March 16, 2011
State Office Building 200
2:30 PM

Introduction
I am David Schultz and I am here to testify in opposition to HF 936.

Credentials
I am a professor at Hamline University in the School of Business where I teach classes in public administration. I have a Ph.D. in political science and a J.D. (Law degree) and currently hold appointments at the Hamline and University of Minnesota Schools of Law. I am the author/editor of among other publications the Constitutional Law in Contemporary America, Encyclopedia of the United States Constitution, Encyclopedia of American Law, Encyclopedia of the Supreme Court, and the Encyclopedia of Civil Liberties.

The views expressed here are my own and not those of the schools where I teach.

Arguments Against HF 936
There are three reasons why I oppose HF 936 and why you should vote against it.

* HF 936 is unconstitutional.
HF 936 clearly violates the United States and Minnesota Constitutions.

The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973) that a constitutional right to privacy was broad enough to protect the right of a woman to terminate a pregnancy. This right was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505, U.S. 833 (1992). Roe articulated a trimester distinction or structure to determine the competing rights of the woman versus the state in preserving fetal health. Yet even under this trimester schema, the core holding of Roe articulated a fundamental right of a woman to terminate a pregnancy. That core holding remains valid today and HF936 is unconstitutional under it.

HF 936 is also unconstitutional when viewed under alternative tests or case law subsequent to Roe and Casey. In cases such as Casey and City of Akron v. Akron Center for Reproductive Health, 462 US 416 (1983), Justice O’Connor suggested use of the “undue burden”test to determine whether a state law interfered with a woman’s right to terminate a pregnancy. While there is some dispute whether this test is constitutionally mandated, there is no question that the flat ban on abortion proposed in HF 936 unduly burdens a woman’s right to terminate a pregnancy.

Finally, in Gonzales v. Carhart, 550 U.S. 124 (2007), the Supreme Court upheld a federal law banning so called partial birth abortions. That decision represents the singular instance of a specific ban on an abortion procedure being upheld. But even under Gonzales, women, even after 20 weeks, still retain a constitutional right to terminate a pregnancy such that a flat ban on this right, even with the exceptions noted in HF936, are unconstitutional.

In addition to violating the United States Constitution, HF 936 violate the Minnesota Constitution. In Doe v. Gomez, 542 N.W.2d 17 (1995), the Minnesota Supreme Court ruled that Article I, Sections 2, 7 and 10 of the Minnesota Constitution encompassed a right to privacy broader enough to protect a right of a women to terminate a pregnancy. In that decision the Court also ruled that the constitutional right to privacy afforded under the Minnesota Constitution is broader than that offered under the U.S. Constitution. Thus, if HF 936 violates the federal constitution then under the more stringent requirements of the Minnesota Constitution it is also unconstitutional.

* HF 936 Invites Legislating from the Bench and Disrespect for the Law
Courts are bound by precedent. Many criticize the judiciary and judges who legislate from the bench when they disregard precedent and make policy based on their own private views. Legislatures should not be in the business of encouraging disrespect for the law and legislating from the bench. Instead, legislatures should be encouraging judges to respect precedent and legislatures should not be in the business of passing law specifically aimed at encouraging the courts to legislate from the bench. This is exactly what HF936 does.

This bill, if it were to become law, is inviting and encouraging the United States Supreme Court to review and reject precedent. The purpose of this bill is to become a test case and invite Supreme Court review with the purpose of overruling Roe v. Wade.

If this legislature respects the law, respects the judiciary, and it wishes not to encourage judicial activism or legislating from bench, it should reject HF 936.

* HF936 is a Tax-Payer funding for a Private Law Suit
Finally, HF201 is a request to provide taxpayer dollars to fund a challenge to Roe v. Wade. It is an effort by a special interest group to commandeer our tax dollars and government lawyers to challenge established law and precedent. At no time should taxpayers be asked to foot the legal bills for private groups wishing to challenge established law and precedents, but this makes even less sense at a time when the state is facing a $5 billion dollar deficit. Does not the state and the legislature have better things to do with its money, legal resources, and time than to pass a bill that is most certainly unconstitutional, simply to pacify special interests? I think the answer should be obvious.

Conclusion
For the reasons specified above, I oppose HF936 and encourage you to do the same.

Thank you for your consideration.

Hardball and Overreach: Gutless Democrats and Overextended Republicans

Hardball
Why are Democrats so awful playing hardball and the Republicans so good?

Think about events in the last couple of weeks. The fiscal forecast for Minnesota drops the state budget deficit from $6.2 billion to $5 billion and what happens? Dayton drops his call for a one time special tax on millionaires and the GOP thumbs its nose at the rest of Dayton’s tax proposals.

In Congress, the Democrats are ready to fold on budget cuts.

In Wisconsin the GOP votes to gut the collective bargain rights of unions and Democrats look powerless.

On top of all this where is Obama? He seems ready to offer compromise on health care, he seems unwilling to fight for union rights, he does not draw a line in the sand over the budget. Instead, he seems almost irrelevant to the events going on around the country. On top of which, he seems paralyzed by what to do in Libya.

Yet again I see a pattern. Republicans attack, make demands, and Democrats sit back and take it. There is a partisan fight in American but only one party is fighting. Why is that?

Maybe there is a secret strategy that the Democrats have? Perhaps the strategy is that if they act reasonable and offer to compromise it will force the GOP to do the same? Or perhaps the idea is that if you look reasonable then it will win over swing voters who will think the GOP are inflexible ideologues? Perhaps, just perhaps, this the strategy of the Democrats.

But we see how well it works for them. This strategy worked terrifically for Obama in 2009 and 2010, did it not? It led to the GOP fighting the Democrats on everything, making them look ineffective, and eventually it led to the rout of 2010. Additionally, the strategy of compromise has cost the Democrats dearly. Extension of the Bush tax cuts is one example, production of a mediocre health care bill and a less than half a loaf financial stimulus and regulation bills are also examples. Additionally, by not fighting and trying to look responsible the Democrats have also upset its base and the many voters who elected them because of what they promised and then they failed to deliver.

But Democratic compromise encourages GOP resistance. For Dayton, who wants to balance the budget without any more cuts and with tax increases, his decisions to give up on some taxes simply encourages Republicans to dig in their heels. For weeks people have wondered when will the GOP release their budget? The answer is they do not want to release one. They do not want to be the ones to cut education and throw granny out of the nursing home. Instead, by forcing Dayton to compromise more and more they hope eventually to get him to propose the cuts they do not want propose. Shift the blame to the DFL for all the ugly cuts that will have to be made. This is the GOP strategy. Fight, don’t compromise, make the Democrats back down, and they will eventually do the dirty work. The same is happening in Congress, the GOP are threatening a government shutdown, leading Democrats to panic and compromise.

Perhaps part of why the Democrats are so bad at playing hardball is that they think they are responsible for the government. They have come to believe they are the party of the government and that their job is to protect it and the vulnerable. Good aims, but such a strategy is forcing them into a defensive posture where they keeping giving up ground one step at a time. It is a strategy of retreat, fearful of losing but nonetheless they are still losing.

Or perhaps Democrats are so bad at playing hardball because they really do not believe in their principles in the same way the GOP does. For at least a generation Democrats have been corporate liberals, taking money and cues from the business community. Obama, as I argued in previous blogs, seems bent on proving that he is pro-business to the point that he sides with banks over homeowners and companies over workers. Democrats ape to be GOP-wannabes, and perhaps that is why they do not fight so hard–they really do not believe in what they say they believe.

Or perhaps, in the end, the answer is simple–Democrats have no guts! They have no guts to fight for what they believe in and are unwilling to risk anything to get what they want and what they promised voters. Yes, Democrats are gutless, but why they have not learned that they need to fight is beyond me.

Overreach

Did the GOP overreach in Wisconsin? Polls suggest yes, but will it cost them? There are recall petitions across the state but it is not clear to me that voters will really punish them. Similarly, in MN there is a plethora of antichoice bills being introduced. Will this hurt the GOP?

Think about twin imperative at play in MN. The GOP wants to stay a majority party beyond 2012. To do that it needs to temper the extremist tendencies in its party that want to adopt very conservative anti gay and antichoice legislation. Most of this legislation probably does not command a majority support among the state general population. However, this legislation is popular with its base. Unlike Obama who failed to understand how he needed to reward his base, the GOP understands that. That is why it pushes legislation like this along with voter fraud and other similar bills.

On one level it does not matter if the legislation passes but is vetoed. The GOP has delivered to its base and that makes the happy. Moreover, look to see many of these proposals come back as constitutional amendments next year as a way to invigorate the GOP during a 2012 election cycle that might be more favorable to Democrats. Thus the balance here is how to maintain majority status and not alienate swing voters but at the same time appease the base?

The Democratic strategy seems to be to let the GOP push this legislation, hoping it will show the DFL base and swing voters that the GOP are extremists. However, simply hoping the GOP will overreach is not a viable political strategy. It is a defensive one, placing your electoral success on the hoped failures of the other side. This strategy is no different from the failed one of 2010 where Democrats tried to win by labeling the Tea Party as nuts and crazy. That did not work then and there is no guarantee that perceptions of GOP overreach will work to the Democrats advantage in 2012. At best it might lead to GOPers thrown out but it gives Democrats no mandate.

The real threat to union-busting: The constitution

Today’s blog is an op-ed of mine in the March 2, 2011 edition of Salon.com.

The real threat to union-busting: The constitution

The Democratic state senators who are hiding out across state lines in Illinois are a major problem for Wisconsin Gov. Scott Walker and his effort to push a bill stripping public employees of their collective bargaining rights through the state Legislature. So is Wisconsin's state constitution, which severely limits Walker's ability to break the Democrats' resistance. Any action he might take, it seems, could form the basis for a successful challenge before the state Supreme Court.
1. One issue could arise if Walker wins passage of the bill by deputizing the police to round up Democratic senators, if any of them return to the state, and force them to come to Madison. Article V, Section 4 of the state constitution gives the governor the power to "convene the legislature on extraordinary occasions" and "take care that the laws be faithfully executed." The first power allows the governor to call special sessions in the event of emergencies. But even if the governor calls a special session, it is not clear that he has the authority to force legislators by police escort to show up. Similarly, the power to faithfully execute the laws is significant, but it also requires one to ask what laws are being broken if senators refuse to show up.

But let's pretend their failure to appear at the state Capitol is a crime (even though it isn't in Wisconsin); even then, the senators cannot be arrested and detained, according to Article IV, Section 15, which states: "Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session."

Similar clauses are found in many other state constitutions. Their origins date to the 19th century and their purpose was to prevent opposition forces from using trumped-up legal charges to prevent legislators from voting. Here, Article IV, Section 15 could be invoked to challenge any effort to arrest and detain senators for the purposes of forcing a vote. Of course, as long as the senators are outside of Wisconsin, state police have no jurisdiction to detain or arrest; if the police were to cross lines to apprehend the senators, they would be engaging in kidnapping -- a felony in the state, and also a potential violation of federal kidnapping laws.

But what if senators are derelict because of their failure to show up for their duties -- what is the remedy? Article IV, Section 7 of the constitution commits this issue to the legislative branch to address. Specifically, it states: "Each house ... may compel the attendance of absent members in such manner and under such penalties as each house may provide." In other words, the Wisconsin Constitution explicitly delegates to the Legislature the sole authority to determine how it may enforce attendance. This means that Gov. Walker is barred constitutionally from taking any action. Nor can legislators be impeached, thanks to Article VII. Technically, the state Senate could move to expel absent members according to Article IV, Section 8. But expulsion requires a two-thirds vote of the entire body -- which is unlikely.

Assume now that Walker does compel senators to come to the Capitol and a vote occurs. Would such a vote be constitutional? This is debatable. If the arrest or detention of legislators is illegal under the state constitution, then any vote forced as a result would also be unconstitutional. One could also invoke Article IV, Section 1, which vests the legislative power in the Senate and the Assembly. This clause, along with similar clauses for the executive and judicial branches, creates an inherent separation of powers doctrine. By forcing senators to attend and taking a vote, the Legislature's inherent powers may be violated.

Finally, if the Senate doesn't convene to vote and no budget is adopted, can Walker simply suspend collective bargaining rights and lay off public employees on his own? The answer is no. The governor has broad veto authority under Article V, Section 10, but he cannot use power until a bill is presented to him. Similarly, he cannot act unilaterally to balance the budget if the Legislature does not act. Tim Pawlenty, then the governor of Minnesota, learned this in 2010 when the Supreme Court in his state ruled that his efforts were illegal. The power to pass a budget and allocate money is a legislative function. For Walker to just fire thousands of state employees in the name of balancing the budget without legislative authorization might also be a constitutional violation.

Thus, there may be no constitutional way for Gov. Walker and his Republican allies to enact their collective bargaining ban -- as long as every Democratic senator stays away from Madison.