Professor Fred L. Morrison was the research director of the Minnesota Constitutional Study Commission when the current version of the Minnesota Constitution was re-adopted in the 1970’s.  The Star Tribune published his commentary this morning arguing that the U.S. Constitution requires certain spending in the absence of an appropriation (e.g. a minimum standard of care for anyone in custody; honoring state contracts for goods and services; federal legal requirements including grants to the state for social welfare programs and highway projects. ) The Minnesota Constitution, he argues, also contains minimal requirements that would cover, again, people in state custody (Article 1, Bill of Rights) but also judges salaries (Article 6, Sect. 5) but not staff.

The four GOP Senators who filed various actions to intervene in the shutdown took the same general position (that there are constitutional and federal requirements that must be met during a shutdown).

Our state constitution provides for a public highway system  and a constitutional formula for distributing taxes and fees (Article 14 ) as well as a public school system (Article 13, Sect. 1 requires the legislature to tax or “otherwise” provide funding). Morrison argues that the schools may have a claim to funds in the absence of an appropriation and that “(t)he courts can step in if the Legislature fails to fund.”

That is the question we have—what is the proper role of the judiciary so that we avoid a judicial usurpation of the legislative power to appropriate? And the Governor’s duty to faithfully execute the laws?

Morrison goes on to describe what a constitutional shutdown would look like, noting calmly that counties and cities provide a great deal of essential services. The pain comes when counties and cities rely on state funding though most or all of it will be paid back when a deal is reached.

He also wisely counsels against “funding a broad range of interim services” because both Governor Dayton and the GOP might find that too comfortable, so the pressure to reach agreement on a balanced budget would be relieved. ”

This concern is echoed in the Pioneer Press editorial this week that give some of the history of shutdown battles with Pawlenty:

Prior to the 2005 partial shutdown, Ramsey County District Court Judge Gregg Johnson came down on the side of the executive branch. He said the state and U.S. Constitutions and federal law require Minnesota’s executive branch to continue “core functions” of government, which he said include “matters related to the life, health and safety of Minnesota citizens.” He added: “Any failure to properly fund core functions of the executive branch may violate the constitutional rights of the citizens of Minnesota.”

The upshot in 2005 was that the courts helped create a soft landing for the limited shutdown, and could do so again this year. If the senators’ position prevailed this year, and funding during a shutdown was greatly limited, the Legislature and the governor would face greater pressure to agree.

That remains the bottom line and best outcome – an agreement between a governor who campaigned for a tax increase and a Legislature that campaigned to keep a lid on taxes. But along the way to that agreement, we could learn something about how power should be separated among our legislative, executive and judicial branches.

Amen to that.