Constitutional fight escalates between Gov. Mark Dayton, Legislature

State lawmakers prepared Wednesday to hire an outside lawyer to represent their interests as a political dispute with Gov. Mark Dayton snowballs into a constitutional crisis.

The DFL governor on Tuesday vetoed the Legislature's operating budget in an effort to force Republican legislative leaders to reopen disputes over taxes, education policy and immigration. That followed a decision by Republicans just days earlier to approve a bill that would have terminated funds for Dayton's Department of Revenue had the governor not signed off on their tax cuts.

It was a surprise strike and counterstrike that soured the end of an otherwise productive legislative session. For Dayton and Republican leaders, it set up a political and legal dispute that could linger for months.

"The Minnesota Constitution gives me the authority to line-item veto appropriations," Dayton said Wednesday. "It doesn't qualify that I can line-item veto these but not others. It's blanket authority."

Republicans disagree, saying Dayton overstepped constitutional separation of powers. In response, House Speaker Kurt Daudt said he'd convene a Friday meeting of the Legislative Coordinating Commission to discuss hiring a lawyer with the Legislature now at risk of running out of money in a few months.

"The governor has left the Legislature no choice but to seek outside counsel in an effort to defend the people's voice at the Capitol," said Daudt, R-Crown.

The conflict is of a piece with the grim direction of national and state politics at a time when traditions of compromise and comity have given way to demonstrations of raw power.

That's the diagnosis of constitutional scholars who say the new dynamic between the political parties — witnessed in Washington for years and more recently in St. Paul — dictates that every dispute has the potential to become a constitutional death struggle.

"They have taken their literal power to its ultimate lengths. And that's constitutional crisis," said Mary Jane Morrison, a Mitchell Hamline Law School professor who wrote a book on the Minnesota Constitution.

Minnesota politicos were still reeling Wednesday from Dayton's maneuver, which he said was his own idea.

He signed 10 budget bills Tuesday totaling $46 billion that will fund the executive branch for the next two years. He also signed a $650 million tax cut and a borrowing package of nearly $1 billion for public works.

But then he used his line-item veto authority to strike out $130 million in operating funds for the Legislature, which could leave 201 state lawmakers and several hundred legislative employees without pay as soon as reserves run dry in a few months.

"This is unconstitutional," House GOP spokeswoman Susan Closmore wrote in a Wednesday memo. "The branches of government are coequal. If one branch takes action that infringes too greatly — such as eliminating all funding for four years — on another branch of government, it violates the constitutional separation of powers."

Constitutional scholars agreed that the spirit of the separation of powers does not allow one branch of government to effectively kill another by defunding it.

"This is an abuse of a power that contravenes the very system of a separation of powers," said H. Jefferson Powell, a Duke University constitutional scholar and a veteran of the Clinton and Obama Justice Departments.

"Maybe you have the raw power to do this, but plainly this is a misuse of power," he said.

But the move by Republicans to essentially force Dayton to sign their tax bill by connecting it to Department of Revenue funding also raises the specter of constitutional overreach, say the legal scholars. Dayton called it legislative hostage-taking.

"If he's a bad actor instead of just a clever devil, they've been bad actors, too," Morrison, of Mitchell Hamline, said of lawmakers. "They've contributed to this constitutional crisis."

So, what now?

Dayton wants Republican lawmakers to come back to the bargaining table. His only interest, he said Wednesday, is the future of Minnesota. He wants Republicans to scale back tax cuts, especially on wealthy estates, business property and smokers; repeal a new law blocking driver's licenses for undocumented immigrants, and change another new law that makes changes to Minnesota's system of teacher licensure.

Lawmakers may be less than eager to negotiate with a governor who is blocking both their pay and pay for their employees. And Dayton has already signed the GOP-crafted budget bills, locking in their legislative victories.

"It's a problem that requires statesmen. And stateswomen," Morrison said.

That's a word Sen. David Senjem, a longtime Republican legislator from Rochester, used during an interview. He sounded disenchanted with all involved in the mess.

"We need to get in there and act like the statespeople we claim to be," Senjem said.

J. Patrick Coolican • 651-925-5042