Common sense should shape shutdown rules

With a budget deal between the Legislature and the governor nowhere in sight, the debate has turned to which government services, if any, would continue in the event of a government shutdown.

Last week Gov. Mark Dayton outlined the essential services that he would keep running if the government shuts down on July 1.

On Monday, a group of Republican senators filed a lawsuit arguing that the governor -- and, for that matter, the judiciary too -- lacks constitutional authority to fund essential services during a shutdown.

They point to a provision in the Minnesota Constitution that states: "No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law."

Under their reading of the state Constitution, a government shutdown means no government spending on essential services because no money has been appropriated for those services.

This means no money for state troopers to patrol highways, for the processing of child support payments or unemployment checks, for the detoxification of Minnesota's drinking water, for the screening of newborns, for plugging holes in state-run dams and so on.

Fortunately, this drastic interpretation of the Minnesota Constitution is incomplete.

A better reading suggests that the governor does indeed have the constitutional power to avoid this parade of horribles by funding essential government services during a shutdown.

Under the Constitution, the governor is obligated to "faithfully execute the laws" and to act for the "benefit and protection of the people." Minnesota appeals courts have never decided whether these provisions in fact empower the governor to fund essential services during government shutdowns.

But if they have to decide the issue now, common sense and history are on the side of the governor.

Governors in other states have relied on similar provisions in their constitutions to fund essential services during shutdowns, and presidents have relied on similar provisions in the U.S. Constitution to provide important government functions in the absence of legislative appropriations ever since the nation's founding.

Indeed, if Dayton were to fund government operations without legislative appropriations, he would find himself in quite good company.

President George Washington suppressed the Whiskey Rebellion of 1794 using money that had not been appropriated by law, even though the newly created U.S. Constitution established that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law" -- language that formed the basis for the appropriations clause in the Minnesota Constitution.

President Abraham Lincoln used unappropriated funds to preserve the nation during the Civil War.

Were Washington's and Lincoln's actions unconstitutional? They didn't think so.

Lincoln explained that he had no choice. He could sit back and watch as the nation fell apart, or he could protect the citizens of the United States as he was constitutionally obligated to do. I think most of us can agree that he was right.

The same basic justification supports Dayton's power to fund essential government services in the event of a shutdown. A freeze on almost all government spending in Minnesota would not lead to a civil war on the scale that Lincoln faced, but it would seriously jeopardize the health and well-being of millions of Minnesotans.

If the government does shut down, the governor couldn't spend the state's money willy-nilly, though. He couldn't pay for luxuries, like a new Vikings stadium. But he could pay for basic services that protect Minnesotans' health and safety.

Even with essential services running, a government shutdown would not be a piece of cake.

Thousands of government employees would be temporarily out of work, many routine but nevertheless important government functions would be left undone and local governments would take big fiscal hits.

But at least the governor could keep the government operating at a bare-bones level, ensuring some minimal protection of Minnesotans' health and safety while negotiations over a new budget plod along into the summer.

Jason Marisam is a research fellow at Harvard Law School. This summer he will join the faculty at Hamline University School of Law as a visiting assistant professor.