Gov. Tim Pawlenty's $2.7 billion solo budget-balancing act last summer was an unprecedented use of the gubernatorial power known as unallotment. Last Wednesday, Ramsey County District Judge Kathleen Gearin served notice that it may also have been unconstitutional.
Her argument may not hold up on appeal. But it matches this newspaper's view that the Republican governor exceeded his authority when he chose to make unilateral cuts rather than pursue a negotiated budget agreement with the DFL-controlled Legislature.
Pawlenty and the Legislature would be well advised to prepare for the possibility that the courts will void the midsummer unallotment. Add the $2.7 billion gap that will create at to an already forecasted $1.2 billion revenue shortage over the next 18 months, and it means they will need to perform major surgery on a biennial budget that's already more than a quarter spent. Time is not their ally. Work on budget revisions should begin in earnest this month, even though the Legislature is not set to reconvene until Feb. 4.
Gearin's order blocking one sliver of Pawlenty's midsummer unallotment is far from the final word on the topic. She issued a temporary restraining order in a pending suit, reinstating $5.3 million for a nutrition program that helps pay for medically prescribed diets for elderly and disabled people. It alone had come before the judge among dozens of appropriations Pawlenty axed as he claimed gubernatorial authority to trim spending when the state budget is running a deficit.
Pawlenty responded with the promise of a quick appeal of Gearin's action. Haste is in order. The constitutional question raised by this suit deserves to be answered promptly by the Minnesota Supreme Court.
The governor faulted Gearin for "inserting herself in a political dispute." In other words, she was doing her job. Defining and defending the separation of powers is a well-established function of the American judiciary. The courts are rightly summoned when a political dispute results in a charge that one branch of government has tread on another's prerogatives.
Gearin's order notes that unallotment has been found constitutional in previous cases. But the circumstances of the 2009 unallotment were different. The deficit Pawlenty was correcting was not unanticipated; in fact, it was knowingly created. When Pawlenty signed spending bills that he knew were financed by a tax increase that he would veto, he created a deficit. He then invoked that deficit to justify an executive order eliminating appropriations. No previous governor had used unallotment authority that way.
Gearin's order speaks of the "institutional competency" possessed by the other two branches of government to "break the present budgetary deadlocks."
In the last decade, Minnesotans have seen too little evidence of that competency. What they've seen instead are politicians clinging fiercely to their own disparate ideas about what's best for Minnesota. Seldom have they exhibited an understanding that when the state's voters elect divided government -- as they have for the past 20 years -- those elected are obliged to let go of their partisan positions and to compromise. When they don't, the state suffers.
With Pawlenty now entering his last year as governor, eight legislators vying to succeed him, and new legislative leaders due to be elected one year from now, many at the Capitol were likely hoping to punt the state's problems to their 2011 successors. Gearin's ruling and the already forecasted deficit should advise them to adjust their thinking. They are going to have to do their jobs this year.