‘Unallotment’ case offers a welcome argument about separation of powers

Gov. Tim Pawlenty’s use of the ‘unallotment’ statute to balance the budget stirred up more acrimony than possibly anything else in his tenure. State law allows the governor to reduce planned spending (allotments) without legislative approval in order to balance the budget. Though unallotment has been used previously by Pawlenty and other governors, the $2.5 billion scale and the timing of his decision in the final days of the 2009 session were unprecedented. A successful legal challenge followed on behalf of the poor and put the issue on a fast track to the Minnesota Supreme Court.

While we think the governor’s decision will and should withstand legal challenge, we welcome the discussion because it presents an opportunity to review and better appreciate the doctrine of separation of powers. This case is not fundamentally about the food subsidies for the poor that the plaintiffs want to protect. Rather, this case is ultimately about the proper role of each branch of government, where those roles overlap by design, and where they should never overlap.

The Minnesota Supreme Court heard oral arguments earlier this week. The Supreme Court is reviewing a District Court decision in which Judge Kathleen Gearin ruled that, while the statute itself is constitutional, the governor’s actions violated the separation of powers requirement. According to Judge Gearin, the governor violated the constitution because he “used the unallotment statute to address a situation that wasneither unknown nor unanticipated when the appropriation bills became law.” Judge Gearin cried “foul” because the deficit addressed by unallotment was known and anticipated by a previous budget forecast and guaranteed when the governor vetoed a tax bill that would have raised revenues. By doing so, “the Governor crossed the line between legitimate exercise of his authority to unallot and interference with the Legislative power to make laws, including statutes allocating resources and raising revenues.”

Judge Gearin’s argument falls short in at least two ways. First, it fails to offer any explanation for why the governor’s use of unallotment to balance an expected shortfall, however created, is beyond executive authority and, therefore, an unconstitutional exercise of legislative authority. Whether a shortfall is expected or unexpected, the unallotment process functions the same and, importantly, the statute does not make this distinction. The district court’s holding is an attempt to amend the statute by judicial fiat. If the statute needs to be refined, the Legislature, not the judiciary, is the proper author of a solution.

Second, Judge Gearin failed to recognize the difference between the Legislature’s power to allocate allotments (authorize spending) and the executive power to spend — or in this case, decline to spend — allotments. Executive, legislative and judicial powers overlap at times by design; these are the venerable “checks and balances” built into our constitutional order. In this case, the power to reduce spending is fundamentally an executive tool. Thirty-eight states empower their governor to similarly reduce spending, which just makes common sense. The executive is the branch most capable of managing the budget. The Legislature is free to respond in myriad ways, including overriding vetoes, excluding certain items from unallotment and passing a balanced budget.

The irony of this case is that it is the district court, not the governor, that has “crossed the line” into both legislative and executive territory by taking charge of the state’s purse.

Judge Gearin noted that it is equally important for all branches to “tread lightly when dealing with separation of powers issues.” In fact, it is even more important for the judicial branch to tread lightly because the judiciary, whether elected or appointed, is not as directly accountable to the electorate as the Legislature and the governor.

Should the district court’s decision be upheld, Minnesota’s future legislatures and governors could find themselves running back and forth to court. Lawyers and judges, not elected officials, would be in charge of the budget.

Again, this case is not about whether Minnesota’s taxpayers should pay for various state-funded programs. It is about who gets to authorize spending and who gets to spend (or not spend). It is about who gets to tell us what the law says but not what the law should be. And finally, it is about who gets to amend statutes and make the laws that we have to live under. If the unallotment statute grants too much discretion to the executive or suffers from other political defects, the Legislature, in its own messy way, is the best place to address that problem.

Peter Nelson is an attorney and policy fellow at Center of the American Experiment. Kim Crockett is the president and general counsel of the Minnesota Free Market Institute.

This commentary originally appeared in the Pioneer Press on March 18, 2010.
Permission to reprint in whole or in part is hereby granted.