Friday, May 07, 2010

Gildea’s lament II

This is, of course, a follow up to yesterday’s post, Gildea’s lament.

In what amounts to a generous amount of dicta, Justice Gildea addresses the constitutionality of the unallotment statute, even though the majority didn’t find the statute unconstitutional. The majority clearly did have the separation of powers issue in mind, however, when it interpreted the statute as it did. (You can see why in the post linked above.) Justice Gildea made some remarks about the separation of powers in the section of the dissent that addressed constitutionality.

She wrote that:

Because the function [of preventing deficit spending] is one that the constitution commits to both branches, the unallotment statute—which simply acknowledges this joint responsibility—does not delegate pure legislative authority to the executive branch and it does not violate separation of powers.

There is a little sleight of hand going on here. She points to some examples — most of them from the federal government or other states — of the exercise of “joint responsibility” by coordinate branches of government.

Gosh, we’re all in this together. But not really.

Article X (taxation) and Article XI (appropriations and finances) of the Minnesota Constitution clearly give the power to tax and spend to the Legislature; you will look in vain to find a role for the governor. The governor’s role is limited to veto or line item veto.

And as I have several times before, I quote Article III of the Minnesota Constitution (which has no federal counterpart, by the way):

Section 1. 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.

Here’s a link to the Minnesota Constitution.

“What’s a little constitutional authority confusion among friends?” says Justice Gildea.

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