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Contrary to Star Tribune headline, constitutionality of Dayton’s veto is far from resolved

The Star Tribune just published its own incredibly embarrassing “Dewey Defeats Truman” headline.  Yesterday, the Minnesota Supreme Court issued an order in the ongoing dispute over Governor Mark Dayton’s line-item veto of the legislature’s budget.  According to the Star Tribune’s headline, “Court upholds Dayton’s veto.”

Whoops!

In fact, the Court never ruled on the constitutionality of Dayton’s veto and, instead, ordered the parties to provide further briefing on the question and to go into mediation.

Recall that at the end of the 2017 legislative session Governor Dayton signed all of the major budget bills but line-itemed vetoed the legislature’s budget from the state government finance bill because he didn’t like a number of the policies in the bills he signed.  By vetoing the legislature’s budget, he intended to bring them back to the table to negotiate these issues.

In effect, the governor signed bills into law that he had no intention of allowing to become law.

The move was unprecedented.

The legislature successfully argued this violated the Minnesota Constitution’s separation of powers requirements before Ramsey County District Court Judge John Guthman.  The judge concluded Dayton “improperly used his line-item veto authority … by effectively eliminating a co-equal branch of government.”

Dayton then appealed this opinion to the Supreme Court, which prompted today’s order from the Court.

In its discussion of the constitutionality of Dayton’s veto, the court stated: “Based on the plain language of Article IV, section 23 of the Minnesota Constitution, we hold that the Governor’s exercise of his line-item veto power over the appropriation for the Legislature’s biennial budget was constitutional under that provision.” [Emphasis added.]

That appears to be where the Star Tribune reporter stopped reading.  Actually, the reporter might not have even read that whole sentence.  When quoting it, the reporter omitted the last three words—very important words that suggest other provisions in the constitution might question the propriety of Dayton’s veto.

To make absolutely clear they had not made a final ruling on the constitutionality of Dayton’s veto, the Court explained in the very next sentence, “This conclusion does not, however, end the matter.”  The Court then goes on to explain another constitutional provision that must be considered—the constitutional requirement for “three distinct departments: legislative, executive and judicial.”  The circumstances of the governor’s veto, according the Court, “raise doubts about the continuing functioning of the Legislative Branch.”

Though the governor’s actions may be constitutional under the line-item veto provision of the constitution, even constitutional powers have limits.  As the Court notes, quoting from prior case law, “Constitutional powers may not be used ‘to accomplish an unconstitutional result.’”

Thus, the Court suggests Dayton’s otherwise constitutional use of the constitution’s line-item veto provision may ultimately be unconstitutional if it was used to gain an unconstitutional result.

Without deciding on the constitutionality of Dayton’s veto, the Court then goes into a longer discussion focused on whether it has the power to resolve the dispute.  In particular, the Court questions whether they have the power to deliver an appropriate remedy.

The district allowed the Legislature and the Governor to enter into a stipulation that allowed the state to continue funding the Legislature.  However, the Court suggests the lower court may not have had the power to do so.  They cite Article XI of the constitution, which provides: “No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law.”

“[O]ur cases,” the Court explains, “suggest that the Judicial branch does not have the inherent power to appropriate money.”  Thus, even if the Court agrees Dayton’s veto was unconstitutional, they may find they’re powerless to do anything about it.

Two days ago, the Association for Government Accountability also filed a motion to intervene, also challenging the Court’s subject-matter jurisdiction over the dispute.

Thus, the question over the constitutionality of the veto remains open and the question of whether the Court has the power to do anything about it remains open as well.

Not surprisingly, the order reveals that the Court would like to remove itself from a dispute between the two other co-equal branches of government.

In hopes of doing so, the Court ordered that the Legislature and Governor must “participate in good-faith efforts to resolve this dispute through mediation” before any “Judicial Branch vindication of the people’s constitutional right to three independent, functioning branches of government.”  Of course, ordering this mediation means there is still an ongoing dispute, confirming the Court couldn’t have possibly resolved the constitutional question in favor of Dayton.

The Court also ordered each party to offer memos on the Judiciary’s power to resolve this case, including memos on potential judicial remedies available and responses to the challenge against the Court’s subject-matter jurisdiction.

All of which is to say, contrary to the Star Tribune headlines, the dispute between the Legislature and the Governor is far from resolved.

Post updated to reflect the article as published in the Saturday print addition.

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