Minnesota judges can order temporary spending to prevent a government shutdown

Today's blog post was on Minnpost.com on June 9, 2011.

May a Minnesota judge order the spending of tax dollars to fund essential state functions if the state Legislature and Gov. Mark Dayton do not reach a budget agreement by July 1? This is a legal question that will be asked in the coming days as it is anticipated that Attorney General Lori Swanson will approach a Ramsey County District Court judge with a court order for just this purpose. Yet some contend the court lacks this authority and it cannot do this. They are wrong.

The core of their argument rests on three claims. First they point to Article XI, section one of the Minnesota Constitution, which states: "No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law." Second, they argue that the failure to reach a budget deal is a nonjusticiable "political question" that should be resolved by the political process. Third, they contend separation of powers precludes the courts from addressing budgetary matters. These arguments all rest upon an incorrect understanding of the Minnesota courts and the state constitution.

The central error here is drawing a parallel between the Minnesota and the federal courts. The argument is that the U.S. Constitution and its separation of powers preclude federal courts from intervening in political questions and from ordering spending. Besides this claim being wrong on the national level, there is a major difference between the federal and state courts. Whatever limits there are on federal courts, they do not necessarily apply to the state judiciary. State courts, including those in Minnesota, have unique powers compared to those found at the federal level. They are governed by state constitutions that allocate powers to the three branches of government that often differ from those found at the national level.

Across the country state courts have been given powers under their constitutions to issue advisory opinions, to order spending to achieve adequate school funding, serve on redistricting commissions, and to enforce unique rights not found at the federal level. The same is true in Minnesota. There is case law supporting Minnesota courts ordering funding to ensure that the state judiciary can operate. What if the Legislature and the governor disliked a Minnesota Supreme Court decision and decided to retaliate by not funding the judiciary? Such a move would violate the state constitutional separation of powers clause (Article III) and Article VI, which invests judicial power in the Minnesota Courts. At the very least, separation of powers demands funding for the courts, regarding of whether it was appropriated according to whatever Article XI states.

Reading in light of other clauses

A central canon of statutory and constitutional interpretation is to read words to avoid absurd results or to render some language superfluous. A reading of Article XI that states money can only be appropriated if approved by the Legislature would produce odd results that render Article VI and Article III meaningless. Article XI must be read in light of other constitutional clauses.

Moreover, a so-called strict constructionist reading of Article XI and separation of powers must be understood within the context of the Minnesota and not just the U.S. Constitution. Article III of the Minnesota Constitution has a different history and meaning from federal separation of powers, thereby again suggesting that Article XI appropriation authority must be read differently from what is found at the federal level.

Because Minnesota courts follow different rules from the federal courts, claims of justiciability and separation of powers that appeal to federal analogies are inapt. What might be considered a political question or otherwise textually committed to Congress or the president under the U.S. Constitution might not be true in Minnesota.

An additional duty

But in addition to the Minnesota courts having different powers from those found at the federal level, they also have an additional duty beyond interpreting state constitutional provisions and the law. They are expected to enforce the U.S. Constitution and federal law. When state and federal constitutions and law conflict, the federal wins. Thus, notwithstanding any state constitutional provision, a state court might be required to order the funding of any federally mandated program, even if the no budget deal was reached. Thus, whatever Article XI of the Minnesota Constitution might mandate is overridden by federal law.

In sum, those who argue that the Minnesota courts cannot order funding for essential governmental functions are asserting a wooden and formal reading of the law. The uniqueness of state court authority, constitutional provisions, and the need to enforce federal law give Minnesota courts the power to act. This was true in 2001 and 2005 when state courts declared they had the authority to act, and the same should be true in 2011 if called upon to so rule.

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.