Mr. Dayton, you can’t always get what you want

By Kim crockett

Guest Columnist


Last week the Minnesota Supreme Court heard the “line-item veto” case against Governor Dayton for zeroing out funding for the legislative branch. Center of the American Experiment was the only organization to file an amicus brief in this important case. So instead of watching the argument on TV, I joined our pro bono legal counsel Harry Niska, and lots of other officials at our beautifully renovated State Capitol.

The courtroom, however, ran out of seats so I stood in the hall with the press, police and a member of the cleaning staff. We had our own big-screen TV. No popcorn was served but should have been. It was a thrilling hour and half for those of us who love discussing the ideas behind this great American experiment in self-governance.

Chief Justice Lorie Skjerven Gildea kicked off the morning with, “Can we just get to it?”

The Legislature argued, and the Center agrees, that Dayton violated Minnesota’s Constitution. All the King’s lawyers and all the King’s men cannot get around the simple fact that our Constitution guarantees Minnesotans a republican form of government.  Quoting from our brief: All three branches are subject to the separation of powers restraints expressed in Article 3, Section 1 of the Minnesota Constitution, which prohibit any branch from using its powers to “control, coerce or restrain the others in the exercise of any official power or duty involving the exercise of discretion.”

Why did Dayton do this? In a two-page tirade, Dayton confessed his motive was retaliation. He said the Legislature had “snuck” funding for the Department of Revenue into the tax bill to force him to sign it, calling it a “poison pill.” The Legislature put that “poison pill” in because they really wanted a tax bill. And the tactic worked. Dayton said he chose not to veto the tax bill because it would leave the Department of Revenue without funds and force big layoffs.

Dayton also said he would only call the Legislature back into session to talk about restoring funding if leadership agreed to a reopen a list of issues he had already signed into law. It was like he woke up with a special session hangover thinking, “I can’t believe I signed those bills.”

Dayton had a valid complaint about the “poison pill.” The Department of Revenue takes in and distributes taxes. The state cannot function without it. But once Dayton signed the bill, he lost the opportunity to go to court to argue that the Legislature had improperly obstructed his executive authority. He let it become law.

How does Dayton want the Court to rule? Dayton wants a judge to decide what the Legislature needs — ­ just to get by — until the dispute is resolved. During a humorous exchange between Justice David Lillehaug and Sam Hanson, the governor’s attorney, they summed up Dayton’s theory: “You can’t always get what you want, but you just might find, you get what you need.”

The chief justice did not seem impressed, “Why is it constitutional for the judiciary to, in effect, undue that veto by restoring funding — some funding — to the legislative branch?” Hanson said it was not constitutional for the court to restore the full appropriation — but because this was a “political case, in a political environment” it was OK for a judge to decide what the legislature needed to function, much like the court did during the 2011 state shut down.

The Chief Justice responded, and I am paraphrasing, “Just because we have done it before doesn’t mean it was constitutional.”

The separation of powers doctrine says that the three branches of government are coequal, and that each branch has certain defining and exclusive functions: the executive executes and enforces the law; the Legislature makes law and appropriates money; and the judiciary interprets the law.  It’s a beautiful, powerful and simple thing to behold.

Which is not to say that the lines separating the branches do not blur from time to time — but this is not one of those times.

Governor Dayton is violating this bedrock doctrine willy-nilly. He is trying to use his executive power to legislate, while denying the Legislature’s core legislative function, and is tempting the court to use its judicial authority to legislate by appropriating funds.

This is why Justice Natalie Hudson said, and again I have paraphrased a bit: “Aren’t you asking us to institutionalize a procedure or mechanism whereby, on a regular basis, or semi-regular basis, the court is asked to intervene in and sort out political squabbles?” Exactly.

If the court does its job, and finds the veto unconstitutional, Minnesota can get what it wants, and what it needs: a republican form of government.


Kim Crockett is vice president and general counsel at Center of the American Experiment in Golden Valley.