Walter Mondale and David Lillehaug: Unallotment is at odds with the Minnesota Constitution

Pawlenty's actions have a federal parallel: Richard Nixon and 'impoundment.'

By WALTER MONDALE and DAVID LILLEHAUG

Last update: November 29, 2009 - 10:15 AM

The idea of separation of powers is at the very heart of our system of government. Unlike its federal counterpart, the Minnesota Constitution expressly provides for a "division of powers" with "three distinct departments," none of which shall exercise any of the powers properly belonging to either of the others.

Gov. Tim Pawlenty's massive "unallotment" of $2.7 billion appropriated in bills passed by the Legislature and signed by him only days before is an historic threat to the separation of powers. We've seen this movie before; it reminds us of President Richard Nixon's massive "impoundments" in the 1970s.

"Impoundment" was understood to be the power of the president not to spend some or all of the funds appropriated by Congress. Until Nixon, the power was used sparingly, often in cases of military necessity. Nixon impounded billions of dollars to reshape the federal budget to his liking, targeting antipoverty, pollution-control and highway-safety programs for reduction and even elimination.

The other two branches of government responded promptly. Multiple court decisions found that this raw abuse of power was illegal. Over Nixon's veto, Congress passed the Budget and Impoundment Control Act of 1974, requiring, among other things, that the president obtain timely congressional concurrence to permanent impoundments.

Pawlenty's unallotments are similar to Nixon's impoundments, in at least three respects. First, they are a radical expansion of previous practice. No other Minnesota governor has used unallotment so frequently, and the most recent unallotments dwarf any other by a factor of 10.

Second, no other governor has used unallotment at the very beginning of the two-year budget cycle, thereby ruling out compromise in a special session.

Third, and most troubling, the governor has used unallotment virtually to make his own laws. In our constitutional system, the Legislature has the power to make laws and cannot delegate that power. The governor's veto -- extending even to line items -- serves as a powerful check on the Legislature and can be overriden only by a legislative supermajority.

To circumvent this time-tested system of checks and balances, the governor has used unallotments to limit or eviscerate programs in lawfully enacted statutes.

For example, it was cruel, but fully constitutional, for the governor to veto funds for General Assistance Medical Care. But it was an abuse of executive power to go beyond the veto and use unallotment to order that GAMC be ended months early. Similarly, it was an abuse to eliminate the Political Contribution Refund -- a tax incentive for clean money -- passed by the Legislature and signed by one of the governor's predecessors.

At its core, this new brand of gubernatorial lawmaking is political; in this instance, it appears designed to implement a right-wing agenda in the runup to a presidential candidacy. Its targets are low-income people, the sick and disabled, schools, and basic local government services.

While we understand the natural inclination of Republican legislators to stand behind their leader, public servants of all ideologies should understand that this precedent, if allowed to stand, profoundly undermines the authority of the people's elected representatives. Another governor, for instance, might use the same power to eliminate all business tax breaks.

Thankfully, through Legal Aid, six low-income people with disabilities have had the courage to challenge Pawlenty in court. They argue that his massive unallotments violated both statutes and the constitutional separation of powers. These plaintiffs and their cause deserve the full support of the Legislature and the public.

Whatever the outcome of the lawsuit, in the upcoming session the Legislature should move quickly to restore the constitutional balance of powers, just as Congress acted in 1974. The unallotment statute should be reformed to limit the governor's power to a small percentage of the budget, and then only for a limited time before legislative concurrence is required. If the governor vetoes unallotment reform, all bills with fiscal consequences should include riders prohibiting unallotment.

Governing in a system of limited, separated powers is not easy. Properly understood, our constitutional system encourages compromises that make no one happy. But that system has served Minnesota well for more than 150 years. In the face of this profound, historic challenge, the principles of checks and balances must be protected.

Walter Mondale, a former Democratic U.S. senator and vice president, was a cosponsor of the Budget and Impoundment Control Act of 1974. David Lillehaug was Mondale's issues aide in 1983-84.

Recent Commentary stories

Google roundup: Hear, hear, for standing up against evil - November 29, 2009

Google roundup: Hear, hear, for standing up against evil - Google may not win its fight against the Chinese government, but bless it for trying. More

Comment on this story | Read all 26 comments | Hide reader comments

About Opinion Exchange

Opinion Exchange is produced by the Editorial Department, which is dedicated to hosting the discussion on a range of issues of interest to Star Tribune readers online and in print. In its new format, it's our hope that Opinion Exhange will create a more dynamic dialogue between Star Tribune readers and the Editorial Board. Many individual posts will be written and signed by members of the Editorial Board and will reflect their own opinions. Daily editorials will continue to represent the institutional voice of the newspaper and be researched and written by the Editorial Department, which is independent of the newsroom.

Subscribe to RSS|Learn more about RSS