In all the kerfuffle of Netroots Minnesota this weekend, I didn’t get a chance to read the amicus brief filed by the House of Representatives in the lawsuit accusing Tim Pawlenty of overstepping his gubernatorial authority by using unallotment earlier this year.
The amicus brief stands on several main points:
1.) Defendants’ Own Actions Led to the Budget Shortfall That They Have Used to Justify Their Unallotment Actions.
2.) Defendants Unallotted State Spending Using Projections from the February Forecast.
3.) Defendants’ Unallotment has no Precedent in Minnesota History.
And then their argument is summarized as follows:
1.) THE NECESSARY CONDITIONS TO REDUCE ALLOTMENTS UNDER THE UNALLOTMENT STATUTE HAVE NOT BEEN MET FOR THE 2010 – 2011 FISCAL BIENNIUM.
A.) Defendants Have Not made the Required Statutory Determination that “probable receipts * * * will be less than anticipated” as required by § 16A.152.
B.) The Unallotment Statute may only be used after the Biennium has begun.
2.) IF THE UNALLOTMENT LAW ALLOWS NEGATING OR REDUCING APPROPRIATIONS BASED ON CIRCUMSTANCES KNOWN WHEN THEY WERE ENACTED INTO LAW, IT UNCONSTITUTIONALLY DELEGATES LEGISLATIVE POWER TO THE EXECUTIVE.
A.) The Minnesota Constitution Provides Means for Resolving Disputes between the Legislature and the Governor in Order to Adhere to a Balanced Budget.
B.) If the Unallotment Law Authorizes the Executive Action Taken in This Case, Then the Unallotment Law is Unconstitutional.
C. Rukavina v. Pawlenty Has Limited Application to This Case.
D. Invalidating the Executive Action in this Case is Consistent with the Case Law in Other States
There’s a lot in there, but basically the House appears to be saying this: the conditions intended to trigger the possibility of unallotment were not met when Tim Pawlenty said he was going to use the power. He used it incorrectly, by improperly using the February budget estimates, and the way he tried to unallot — by signing an appropriations bill but not a tax bill, and then slashing appropriations to fit his fancy, despite the fact that he already knew what tax revenues were going to look like — is unconstitutional.
Unallotment is intended — by law — to be used once a budget biennium has begun, and tax receipts are lagging behind what two-year-old projections indicated they would be. Instead, Pawlenty unallotted a future appropriations schedule before any of those conditions had been met, essentially rewriting the laws passed by the legislature in doing so.
The point about Rukavina v. Pawlenty is an interesting one. I’m not familiar with the case itself, but this amicus brief makes it sound like the issue in that case was whether unallotment as a whole was even consitutional. The court held that it was, but the House appears to be getting ahead of any counter-argument that might use that 2004 case to argue in favor of Pawlenty’s unallotment.