Archives for Separation of Powers

Luncheon Event on January 25th. Executive Orders: Executive Necessity or Executive Overreach?


The Minnesota Lawyers


The University of St. Thomas Law School Chapters

of the Federalist Society


Proudly Present:


Executive Orders: 

Executive Necessity or Executive Overreach?

A panel discussion featuring:

  • Noel Francisco, Jones Day, former Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice
  • Heidi Kitrosser, Julius E. Davis Professor of Law, Universityof Minnesota Law School
  • Peter J. Nelson, Director of Public Policy Center of the American Experiment

January 25, 2012

12:30 p.m.-1:30 p.m.

University of St. Thomas Law School, Room MSL 235

1000 LaSalle Avenue, Minneapolis, MN

Click Here for a Map and Parking Information

The Lawyers Chapter Will Apply for 1.0 CLE Credits 

Lunch Will Be Served  (Free for Students, $10 for Lawyers and Other Guests) 


Please RSVP by January 24th to Nathan Swanson at nswanson30@gmail.com


Shutdown Funding Explained by Professor Fred L. Morrison

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.

Here comes the Judge(s); Can the Governor Sidestep the Legislature by Running to Court?

Minnesota State Constitution

Minnesota State Constitution


Update: The Minnesota Supreme Court has dismissed a petition by GOP senators to limit spending to those required by the state Constitution, federal mandate or statute. Ramsey County district judge Kathleen Gearin has rejected Gov. Dayton’s request to appoint a special mediator between himself and the Legislature. Judge Gearin also rejected a request by four Republican lawmakers that she order Dayton to call for a special session.

(Original post follows)

The legislature and the executive are at an impasse. Both the governor and the attorney general have filed very different requests with Ramsey County District Court for continued operations and spending during a state-wide shutdown–none of which has been appropriated by law. (By the way, is this Lori Swanson’s announcement that she is running for governor in 2014?)

Why are the governor and attorney general (executive branch) turning to the judicial branch for permission to spend? Keep in mind that under our constitution, the legislature alone has the power to raise revenue, the governor is charged with executing the laws and the courts are supposed to say what the law is (not what it ought to be). But here, the legislature and governor have failed to agree on and pass/sign a budget law so there is nothing for the governor to execute or for the judiciary to interpret.

A group of state (GOP) senators (listed below) have filed two actions in response to the governor and attorney general. One is a request for an expedited hearing before the Minnesota Supreme Court (asking the court to uphold the legislature’s constitutional budget authority). The other was filed in Ramsey County District Court asking the court to force Gov. Dayton to call for an immediate special session of the legislature in an attempt to avoid a shutdown.

The Pioneer Press agrees that this is worthy of debate :

Sens. Warren Limmer, R-Maple Grove; Scott Newman, R-Hutchinson; Sean Nienow, R-Cambridge; and Roger Chamberlain, R-Lino Lakes, have filed petitions before the state Supreme Court and in Ramsey County District Court. Nienow explained that the state Constitution gives the power of the purse strings to the Legislature. “If we’re explicitly given the power of appropriation, how can the courts allow the governor and the Attorney General to do it?” he told us, in explaining the senators’ petition.

Rep. Ryan Winkler, not a well-known defender of the separation of powers and strict construction of constitutional principles, has also joined the fray. Here is a quote from MPR:

Winkler also questions whether it’s constitutional for a judge to fund government agencies. He says that’s the job of the Legislature and the governor.

“The Minnesota Constitution requires the Legislature and the governor to compromise and pass a balanced budget,” Winkler said. “The idea that powers should be separated into three branches, and that each branch should serve as a check on the other branches, is fundamental to our system of government.”

This is a great opportunity to remind ourselves that each branch has a proper role to play, and while functions do sometimes overlap, the appropriation of funds should be a bright line that the judiciary and governor do not cross. When the governor seeks political cover by running to court, it changes the dynamics of negotiations by taking (some) pressure off the legislature and governor to reach a balanced budget by the deadline. Counting on the courts to intervene will affect the negotiations from the start; this is why a bright line is needed.

There is a reason why the constitution gives the legislature the power of the purse and the governor the power of the veto pen. Each branch has a distinct role to play and when they wander out of their assigned role, we get chaos.

If the governor is allowed to go around the legislature by going to the courts, he does not have to deal with the limitations of his power to spend and can send us into a shutdown (while funding select services) even when the legislature has done its job and delivered a budget on time.

Do you remember the unallotment debate during the last budget battle between Gov. Pawlenty and the DFL Legislature?

We have argued elsewhere that the governor has the power to unallot (or decline to spend) appropriated funds but the Minnesota Supreme Court, though sharply divided, rejected that argument. If the governor does not have the authority to NOT spend because it violates legislative prerogative, how can he have the authority to spend? This came up in 2005 under Pawlenty but the constitutional questions were never fully aired because the shutdown ended before the Minnesota Court of Appeals ruled.

If the governor does have authority to spend, say for emergencies, or for constitutionally required matters, does he have to seek a judicial stamp of approval? (This could be a proper area of judicial inquiry.) But can a court order the legislature to mediate the dispute at the governor’s request? Can a court order the governor to call a special session at the legislature’s request? Call us skeptical on these questions. These are all Political Questions that the court is wise to steer clear of–and if the political branches know that they cannot turn to the courts, they may do the tough work needed to avoid a shutdown in the first place.

Here are relevant sections from that pesky Minnesota Constitution:

Article III, Division of Powers: The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution. (emphasis added)

Note: we cannot find any relevant exceptions expressly provided in the constitution (e.g., that the governor and/or judiciary can agree on spending that has not been appropriated during a shutdown). We found an article published in the Strib by Professor Fred L. Morrison helpful, which talks about how the government functions during a shutdown in the absence of appropriations. “Shutdown Funding Explained”

Article IV, Sect. 18: Sec. 18. REVENUE BILLS TO ORIGINATE IN HOUSE. All bills for raising revenue shall originate in the house of representatives, but the senate may propose and concur with the amendments as on other bills.

Article V, Sect. 3: Powers and duties of governor. (Among other things) He shall take care that the laws be faithfully executed.

Article XI, Sect. 1 Money paid from state treasury. No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law.

We only make all this very complicated when we assign powers to the judicial branch that it does not have, thus dragging them into the political fray where they do not belong.

Here is a GOP press release:

“This is nothing more than a power grab,” said Senator Warren Limmer, the Chairman of the Senate Judiciary Committee. “Our state constitution clearly defines the role of these executive branch offices and specifically states that ‘no money shall be paid out of the treasury of this state except in pursuance of an appropriation by law (which requires legislative action)’.”

“Our purpose as interveners is to oppose the petitions of the Governor and Attorney General,” explained Senator Sean Nienow, “which usurp the authority of the legislature. We are also asking for Ramsey District Court Judge Kathleen Gearin to recuse herself due to her past rulings of similar cases. In addition, we seek a Writ of Mandamus which would recognize primarily, the Governor’s proper constitutional authority and whether he is fulfilling his responsibilities of his office. Since neither the Governor nor the Attorney General has the constitutional authority to unilaterally create a budget without the approval of the legislature, his only constitutional course of action is to call the legislature back to a Special Session, which he is refusing to do.”

“It is not in the best interests of the people of Minnesota to allow the Governor to be an obstructionist to the spending reforms the voters called for in the last election,” said Senator Limmer. “The move by the Attorney General, much less the Governor, to seek power far beyond their constitutional job description is very dangerous.”

The GOP leadership is arguing that there is plenty of time left for the legislative branch and the governor to do their constitutional duty and agree on a balanced budget—-they want a special session to do so. They reject the idea that the court can order mediation. We wonder of the court can order a special session; again, the governor not the courts, have that power.

Here is the Senate Response to the attorney general and the Governor.

Here is Majority Leader Amy Koch’s Affidavit.

Think of all the time that Governor Dayton has spent planning a shutdown instead of planning a budget with the duly elected legislature. If he had known right from the start that he could not spend without appropriation during a shutdown, would he have acted differently?