Nothing gets an editorial writer revved up faster after vacation than finding the governor and Legislature locked in a sticky constitutional crisis. This thing will write itself, thought I. Scold both sides for getting themselves into another fine mess. Heave a big sigh of relief at the fact that no government shutdown is in the offing. And wish the judicial Supremes well as they blow the whistle, referee-style, and order the Legislature and governor to operate in accord with the state Constitution.
Which the high court will do — right?
Make that “please”!
Surely the court will see its duty to decide whether Gov. Mark Dayton erred when he line-item vetoed the entire operating budget for the 2018-19 Legislature, a constitutionally mandated and separate branch of government. Yes, it’s a political dispute of the sort that courts like to avoid. But it’s one that has escalated into separation-of-powers territory, right?
Surely the good justices will go further and address the Legislature’s provocation for the governor’s veto. The lawmakers passed a measure automatically defunding the state Department of Revenue — the tax collectors — if the governor vetoed the tax bill. The justices won’t give a pass to that attempt to deprive the governor of his constitutionally provided veto power, will they?
Maybe they’ll even get at the root of a lot of lawmaking problems in this state. They’ll crack down on the Legislature’s habitual violation of the Constitution’s “single subject rule” (Article 4, Section 17) and direct them to stop loading policy measures into spending bills.
Maybe. But after I looked at the other Minnesota separation-of-powers news that broke while I was away, my confidence that the courts will ride to the rescue was shaken.
On May 30, the state Court of Appeals turned down State Auditor Rebecca Otto’s bid to overturn the 2015 Legislature’s move to allow counties to contract with private auditors rather than her office to check their bookkeeping. It was a 2-1 decision that didn’t buy Otto’s argument that using a spending bill to take away her office’s auditing work violated the single subject rule.
Minnesota courts like to give the Legislature wide berth in that regard, Judge Louise Bjorkman wrote. Quoting a 1989 case, she said that “a mere filament” is a sufficient common thread to allow for combining separate measures into a single bill. Bjorkman acknowledged that in the past 30 years, “members of the court … have expressed growing frustration with the Legislature’s conduct in grouping tangentially related subjects in large bills.” But majorities have let them stand — most of the time.
But not always. In a 2000 decision, a prevailing wage requirement for school district construction projects that had been stuck into the 1997 tax bill was tossed out of the statute books as a violation of the single subject rule. And one justice at the time, Paul Anderson, wanted the court to go further and take down the entire tax bill — though he was practical enough to allow that he’d make that order apply to future tax bills rather than the one already in law, to avoid the disruption that would result if a three-year-old tax bill was torn down.
Anderson is typically a highly quotable retired jurist. But when I caught up with him last week, he was loath to say what his former colleagues should do about the Dayton veto and Otto cases. His reticence almost led me to inquire about his health — until he reverted to familiar form by diagnosing the dysfunction that’s behind the latest crisis.
One branch of government encroaching on the constitutionally bestowed powers of another is a symptom of a serious affliction in American self-government, Anderson opined. The two parties no longer confine their disagreements to the ways in which to pursue a shared goal, such as a better educated or healthier population. Instead, they’re fighting to acquire and retain power. Staying in charge appears to be their top aim.
“When the end is power itself, one can justify doing almost anything to achieve that goal,” Anderson said. “This session might be characterized as an exercise in overreach. The omnibus bills appear designed to work their way around the Constitution.”
There’s some of the scolding I had in mind. As the Editorial Board wrote in my absence, what the Legislature was attempting to do to Dayton was bullying. To Dayton, I’ll add that two wrongs don’t make a right. Trying to coerce the Legislature back to the bargaining table by vetoing its entire budget isn’t negotiation. It’s extortion.
The Legislature’s Republican majorities are gearing up to take Dayton to court over his line-item veto just as the Otto case reaches the top of the judicial branch’s appellate ladder. I’d call that a fortuitous coincidence. The Minnesota Supreme Court is going to get a chance to go to the root of the problem: the willingness of one branch of government to usurp the constitutionally assigned power of another in order to get its way.
The three-branch design of American government is intended to protect the nation from the tyranny of concentrated power. It’s a core function of one of the three — the judiciary — to police the power-grabbing tendencies of the other two.
Minnesota’s Supremes may be loath to wade into what some will say is a purely political fight. I’d counter that the crisis that’s coming to them in these two cases goes beyond politics. They are being asked to defend the Constitution. May the seven justices see that they have a duty they cannot shirk.
Lori Sturdevant is a Star Tribune editorial writer and columnist. She is at firstname.lastname@example.org.