Minnesota's Constitutional Crisis

Minnesota is in the middle of a constitutional crisis.  As is true with most constitutional crises, it is a crisis precipitated by a political crisis. The political crisis is battle between the legislature and the governor, rooted in political disagreement and polarization, and where it is about ready to engulf the Minnesota Supreme Court.

            The constitutional crisis has been long coming.  It is rooted in the change in Minnesota politics that began 20 years ago—perhaps marked when Jesse Ventura won the governorship and the Republicans the House.  That point represented the point when DFL domination in the state since the 1960s ended, and the emergence of Minnesota as a state increasingly torn by the political cultures of urban liberals and rural conservatives.  The DFL has lost its farmer leg, and it is becoming clear that as Trump Democrats have fled the party, it is also losing labor.  

             Since 1998 special sessions have become the norm—three for every four years—and there were partial or near shutdowns in 2001, 2005, and 2011.  In 2009 Pawlenty used his unallotment power to balance a budget and end a legislative session.  In all these instances, the Minnesota Courts had to step in to resolve political disputes.  All these instances point both not only to the political forces dividing Minnesota, but all were examples of constitutional crises; specifically, what to do when the political process breaks down and fails to perform according to the procedures outlined in the State Constitution.

            Now we have another and more glaring constitutional crisis. It appears to have started on Tuesday, May 30, the when governor announced that he was signing all the budget bills after yet another special session.  Yet, the state constitution gives the governor the right to line-item veto specific budget items. The governor chose to line-item veto the money that would fund the state legislature for the next two years.  The governor said he was doing this for two reasons.  First, he did not like what he called a “poison pill” provision in the tax bill that would defund the Minnesota Department of Revenue if he vetoed that bill.  Second, in a letter to the legislature he said that he would only authorize funding for the legislature’s operation if they agreed to specific changes in the budget bills he signed.  This would necessitate yet another special session.

            This battle has triggered a major political and constitutional battle in Minnesota politics.  One constitutional question is whether the legislature can defund a state agency many deem essential without violating the State’s separation of powers or single subject clauses in the constitution.  Conversely, can the governor use his veto to defund the legislature, also without violating this clause?  These constitutional questions form the context for perhaps a major political battle and negotiations, but it is also certain that the Minnesota Supreme Court may be asked to settle these questions, as it looks as if the state legislature is going to the court to sue the governor. 

In addition to the legal battles between the governor and the legislature, this week the Minnesota court of Appeals upheld a law passed by the state legislature two years ago that stripped away some of the powers of the State Auditor by giving counties the discretion to hire private auditors.  This legal battle raises separation of powers issues, but also questions regarding the State Constitution’s single-subject rule which mandates that legislation may only incorporate a single-subject.  The law removing some of the Auditor’s powers was included in another larger bill.

While Dayton’s line-item veto is the immediate cause of the constitutional crisis, flagrant violation of the single subject rule by the legislature is the real culprit.  Historically, the single-subject clause and the line-item veto are connected and rooted in fear of legislative mischief that corrupted state legislatures across the country.  Back then state legislatures were hotbeds of graft, corruption, and political shenanigans.  The single-subject rule was adopted in many states, including Minnesota, to prevent voter confusion, log-rolling, and the slipping into major bills extraneous provisions under the cover of darkness.  If the single-subject provision was unable to police the legislature, giving governors a line-item veto would allow them to extract improper appropriation provisions from bills.

The stripping away of the State Auditor’s powers was attached to a larger unrelated bill under the cloak of darkness.  The same can be said about the legislature’s poison pill in the tax bill.  But even if they were not hidden as the Republican legislative leaders contend, they still violated the letter if not the spirit of the single-subject rule.  They also point to how leadership has failed to enforce germaneness rules that would keep policy and appropriation bills separate.  Viewed in this context, the governor’s line-item veto was constitutionally under-minded.  Yes, Dayton could have vetoed entire omnibus budget bills, but that would have triggered another political and constitutional crisis in terms of another governmental shutdown.  No matter the choice Dayton faced, there was a constitutional problem.

Viewed in isolation Dayton’s line-item vetoing of the legislature’s funding is constitutionally wrong.  He cannot use that veto to negate or undermine the authority of another constitutionally-explicit branch of the government—this is a major separation of powers issue.  Yet if the only lawsuit filed is one by the legislature then that may be the decision the Minnesota Supreme Court is forced to bring.  However, there needs also to be a lawsuit brought by legislators—and Senator John Marty is contemplating one—raising the single-subject rule to many of the omnibus bills passed this term.  They should also join the State Auditor in her appeal to the Supreme Court.  Why?  If the Court is given the opportunity to rule on both the line-item veto and the single-subject rule then it would perhaps be able either to join the cases or resolve them in a way that defines the proper limits on what the legislature can do, thereby also drawing lines regarding what the governor can do.  Defining the limits of the single-subject rule and the line-item veto would then also clarify the separation of powers issue.

Of course, the Supreme Court could take another approach-refuse to grant jurisdiction to the Republican challenge to the governor, ruling the matter a political question for them to work out.  While at one time that would have been a viable solution, prior Minnesota court decisions to fund the state during a shutdown, over unallotment authority, and even over the single-subject rule make that option nearly impossible.  The constitutional crisis already has engulfed the state court system and it is not clear it can simply walk away.

Constitution 7, Trump Administration 0.

But it is still early in the first quarter and we know what happened to the
Atlanta Falcons in the Super Bowl.
It was no surprise at all that Trump lost in the Ninth Circuit Court of Appeals when it came to his travel ban.  Even though the decision was not on the merits but only on the stay, the Court indicated that the challengers were more than likely to win on the merits when it came to two constitutional claims–a Fifth Amendment Due Process claim regarding revocation of travel privileges without hearings, and a First Amendment Freedom of Religion claim.  The Trump administration lost because it was sloppy.  The executive order–as with most of them–are more showmanship than substance.  His Administration is full of a bunch of amateurs who do not know how government works and they think they can flout the law and rules and do whatever they want.  And Trump himself is unwilling to listen and take advice from those who k ow their way around Washington.
Trump’s performance after three weeks is a reminder of what I have been arguing for weeks.  There is this amazing document out there called the Constitution and the Bill of Rights that has nifty things such as checks and balances, separation of powers, due process, equal protection, federalism, and an independent judiciary.  These structures actually do work and mean something.  They were meant to frustrate rapid political change, to make it difficult for a–as James Madison described in Federalist Paper number 10: “[M]majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”
For all those liberals or conservatives who moaned that they could not get rapid or significant political reform accomplished, in part the reason was the structural design of the Constitution meant to prevent that. Thus, for the Trumps and Jason Lewis types of the world who whine that politics in the United States is played between the 40 yard lines, guess what?  It was designed to do just that.  We may live in a time of polarization where many want to go for the Hail Mary pass but the reality is that in politics as in football, such plays seldom work.
But having said all the above, remember it is early still in the first quarter and lots can happen in this political game.  There will be many forces converging that will tame Trump.  The foreign policy establishment that is so powerful in Washington is already constraining Trump when it comes to China.  Week three into his term and the Iran Nuclear deal is not torn up.  No one sees the first brick being laid along the Mexican border.   Free markets and returns on investment will largely doom many of the ideas to bring back coal and kill off renewable energy.  
Yet complacency is a real danger, and Democrats are hobbled by it.  Across the country one hears repeated talk of impeachment, or of the idea that Trump will be so inept that he will bring himself and Republicans down in 2018 and 2020.   Thus, the complacency is the idea that Trump is so bad voters will return to their senses and vote for Democrats and the DFL in two or four years.   One might as well wish for a pony.  This was Clinton’s strategy in 2016. Remember, in part she lost because she had no narrative, no message.  She assumed voters were hers.  The Democrats thought their policies for the last eight if not more years were fine and that they did not need to do anything wrong.   If only it were not for the FBI Director Comey letter or some other freak occurrence such as the Electoral College, she would be president.  She was not the problem, the message was not the problem, the strategy was not the problem, it was someone, somebody, or something else that was to blame.  That seems to be the message of the 2017   Minnesota DFL listening tour according to my friends who have attended.  It is less listening and more about what we were right and the tide is now turning to the DFL and Democratic party advantage.
The reality is that  Democratic party policies, narratives, and strategies,  for the last generation were part of the problem.  From Bill Clinton to Barack Obama the Democrats failed to treat seriously the needs of the working class.  The bailed out the banks but ignored the homeowners after the crash of 2008.  Obama never moved on minimum wage when he could, he failed to push for the Employee Free Choice Act to help the labor unions, he did nothing to address the role of money in politics.  Democrats across the country supported tax cuts that favored the rich.  No, they did not support the wholesale attack on the welfare state but neither did they endorse a major restructuring of it to improve it.  Instead, they went along with the thousand nicks and cuts that undermined it.
Obama and Clinton left the Democratic Party in the weakest position it has been in since the 1920s.  Hoping to run out the clock when it is only in the first quarter is not a viable game plan.  Yes, the Constitution has won and it should be recognized that it sets the rules for the game of American  politics.  But Democrats if they are to be successful, they need to have a real team with a real game plan and strategy beyond one that assumes that Trump and the republicans will simply continue to fumble or commit fouls.