(dissenting).
DISSENT
I agree, that, in the absence of an appropriation, a judicial order that authorizes funding for the Legislative Branch is unconstitutional, I also agree that the plain language of Article IV, Section 23 of the Minnesota Constitution gives a governor textual authority to lineritem veto appropriations for the Legislature. But I conclude that this is. not the occasion for judicial. restraint and that the Governor’s line-item vetoes of the appropriations passed by the Legislature to fund the House and Senate violate Article III of the Minnesota Constitution. I .would hold, therefore, that the Governor’s line-item vetoes are unconstitutional and were unconstitutional at the moment the vetoes occurred.
I.
As an initial matter, it is helpful to discuss the points on which the court and I agree. I agree with the court’s conclusion that a judicial order that authorizes funding for the Legislative Branch, in the absence of an appropriation, is unconstitutional. The. court must resolve this issue because the Governor has defended his line-item vetoes, in part, by arguing that the Legislature has a judicial remedy: the ability to seek a court order to fund the core functions of its branch. The Governor’s proposed remedy is unmistakably contrary to the plain text of our constitution, the precedent of our court, and centuries of jurisprudence,
The court thoroughly examines the constitutional language and our decisions that support the conclusion that “core funding” judicial orders are not constitutionally permissible. Further discussion of those mat-tery is not necessary here. But it is worth noting that the Judiciary has. never been thought to have the general power of the purse. That principle extends at least from the time of the. Magna Carta (1215)1 through the. English Bill of Rights (1689) 2 to the revolutionary era concern about “no taxation without representation.”3 These bedrock principles resulted in Article I, Section 9 of the U.S. Constitution4 and, finally, led our framers to adopt the language found in. Article XI, Section 1 of the Minnesota Constitution.5 Our framers plainly vested the powers to tax and spend in .the branch closest to the people, the Legislature. See Minn. Const, arts. X-XI, The court correctly concludes that judicial orders that authorize funding for the Legislative Branch are not permitted by the Minnesota Constitution.
The court also explains its earlier holding that the Governor’s line-item vetoes of the Legislature’s biennial appropriations for itself complied with the plain language of Article IV, Section 23 of the Minnesota Constitution. Ninetieth Minn, State Senate v. Dayton, 901 N.W.2d 415, 415-16 (Minn. 2017) (order). I agree, The text of Article IV, Section 23 does not expressly exclude the. exercise of the line-item veto power, over legislative appropriations. Where I diverge from the court’s opinion is in its decision to refrain from addressing the separation-of-powers dispute this case presents and in my analysis of Article III and the Separation of Powers enshrined in our constitution.
II.
I would hold that the Governor’s line-item vetoes of the entire biennial appropriations of funding for the House and Senate (collectively, the Legislature) were unconstitutional acts that violated the Separation of Powers guaranteed by Article III of the Minnesota Constitution. The court chooses a different path, one of judicial restraint that leads it to decline to decide whether the Governor’s exercise of his line-item veto power violated Article III of the Minnesota Constitution because that power was used to unconstitutionally coerce the Legislature. I do not quarrel with the court’s discussion of the principles of judicial restraint, only with the application of those principles here.
The judicial practice of -, avoiding interference in disputes between the two other branches of government has a history in our country that extends from the early interpretations of the U.S. Constitution to the present day. See Marbury v. Madison, 5 U.S. (1 Crunch) 137, 170, 2 L.Ed. 60 (1803) (“Questions, in their nature political ... can never be made in this court.”); see also United States v. Palmer, 16 U.S. (3 Wheat,) 610, 634-35, 4 L.Ed. 471 (1818) (explaining that the conduct of foreign affairs is not a legal matter but a political matter committed to the executive and legislative branches); Doe v. Bush, 323 F.3d 133, 141 (1st Cir. 2003) (describing the interaction of the political-questioñ doctrine-with conflicts between the Legislative and Executive Branches concerning the distribution of,, constitutional authority). But courts have also recognized that judicial action is appropriate when deciding “whether the action of [a] branch exceeds [its] authority.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). This is because each branch of government is given its own powers, the powers given have, a constitutionally limited scope, and it is always the “province and duty” of the Judiciary to “say what-the law is.” Marbury, 5 U.S. at 177. If the Judiciary could not address disputes between the other two branches of government over constitutional- limits, our well-established notions of balance would perish. See Glass v. Sloop Betsey, 3 U.S. (3 Dall.) 6, 13, 1 L.Ed. 485 (1794) (explaining that when “either branch of the government usurps” the powers of the other, “liberty ends, and tyranny commences”); see also Zivotofsky v. Kerry, — U.S. —, 135 S.Ct. 2076, 2094, 192 L.Ed.2d 83 (2015) (holding that the President has the exclusive right to “recognize or decline to recognize a foreign state and its territorial bounds”); U.S. House of Representatives v. Burwell, 185 F.Supp.3d 165, 168-69, 188-89 (D.D.C. 2016) (finding that payments made by the Secretary of Health and Human Services were unconstitutional because no appropriation was made for the payments).
Given the unique circumstances here, the choice of restraint or resolution is hardly free from doubt; in the end, for reasons found in both our history and our jurisprudence, I conclude that the better approach is for the Judiciary to resolve this dispute.
I also conclude that this dispute between .our political branches is not so unusual, as the court concludes, that we must stand down. Concerns about executive overreach are neither a recent development nor unique to the current dispute. Our Declaration of Independence from Great Britain tells a “candid world” that “the History of the present King of Great Britain is a History of repeated Injuries and Usurpa-tions, all having in direct Object the Establishment of an absolute Tyranny over these States,” and then proceeds to list those “injuries and usurpations” in detail. The Declaration of Independence paras. 2-27 (U.S. 1776). Nor were those concerns unique to 1776. Over 100 years earlier, King James I insisted that he had powers not subject to law in the form of an “absolute prerogative.” Philip Hamburger, Is Administrative Law Unlawful? 28-29 (2014).
These concerns persist today, and the Judiciary has a role to play in resolving these disputes. Our federal courts have faced,' and resolved, claims of executive overreach. Well-known examples include a judicial rejection of President Truman’s claim of authority to seize steel mills, Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), and a judicial rejection of war-powers claims by President George W. Bush, Hamdi v. Rumsfeld, 542 U.S. 507, 535-36, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004).
It is also worth noting that there is an unstated assumption that underlies the court’s opinion—that all legislative sessions are created equal. Under this view, and consistent with judicial restraint, it is better to allow the normal give and take of a legislative session to resume than to have our court step into - and resolve this dispute between the branches of government. But all legislative sessions are not created equal. Budgeting for this biennium is complete. In this context, the Governor’s action leaves the Legislature with “no real option but to acquiesce.” Nat'l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 582, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). The court assumes that all will be resolved in February, with the start of a new legislative session. But the start of a new legislative session is not a sure-fire safety valve; Assuming the Legislature can open the next session without appropriations, if the Legislature simply enacts appropriations, those new appropriations are potentially the subject of yet another veto action, and line-item vetoes are exceptionally unlikely to be overridden.6 Had the Governor exercised his line-item veto power during the legislative session, when the appropriation process occurs, as opposed to after the Legislature adjourned, judicial restraint might well be a wise response. But failing to act here permanently tilts the balance of powers in favor of the Executive. In these circumstances, I cannot agree that judicial restraint is the wise course.
Finally, although there is much to commend in the court’s exercise of judicial restraint, I ultimately conclude that not to decide is to' decide. No matter what course is taken here, any decision, one way or another, will affect the relative balance of powers between the Legislative and Executive Branches of our government.
It is our principal duty “to say what the law is.” Marbury, 5 U.S. at 177. Although I would prefer that we not have to act, I conclude that we must. Thus, I turn next to the issue presented by this case: whether the Governor’s exercise of his line-item veto power in this instance violated Article III of the Minnesota Constitution.
III.
Article III of the Minnesota Constitution sets out the separation of powers among the branches of our state government:
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.
Minn. Const, art. Ill, § 1. As we explained in State ex rel. Patterson v. Bates, this provision includes three elements: a distributive clause that identifies 'the three branches; a prohibitive clause that prevents one branch from exercising the powers of another branch; and an exceptions clause, which allows one branch to exercise another type of power when the constitution expressly provides for it. 96 Minn. 110, 104 N.W. 709, 712 (1905). Together, these clauses create not merely a separation of functions, but also, importantly, a balance of powers among the branches of our government.
Although conceptually we have described this constitutional provision as establishing a separation of powers, as framed, this provision also includes within it the concept that the powers are distributed to three separate branches of government “to create a system of checks and balances.” Id. Thus, the three clauses of this provision work together 'to create a balance among the three branches: each branch has areas of autonomy and also has available certain tools to check another branch from exceeding its power. A proper balance of powers among the branches is what secures the separation 'of those powers. The separation of powers “operates on a horizontal axis to secure a proper balance of legislative, executive, and judicial authority.” Clinton v. City of New York, 524 U.S. 417, 452, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (Kennedy, J., concurring); accord Murphy v. Townley, 67 N.D. 560, 274 N.W. 857, 860 (1937) (recounting the . historical development of “a balance of powers between coequal departments of government”); State ex rel. Britt v. Bd. of Cty. Comm’rs, 18 Ohio St.3d 1, 480 N.E.2d 77, 79 (1985) (describing “the, constitutionally mandated balance of powers”); Commonwealth v. Nat’l Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588, 593 (1973) (deciding how power granted to the commonwealth is shared equally among the branches to maintain a “balance of powers”); Gabler v. Crime Victims Rights Bd., 376 Wis.2d 147, 897 N.W.2d 384, 398 (2017) (noting that “the balance of powers tips” when the legislative branch arrogates judicial power).
In several decisions, we have addressed aspects of the separation of powers that are relevant to the present dispute. We have explained that the constitutional separation of powers into three distinct departments, Legislative, Executive, and Judicial, forbids interference by one branch in. the spheres of power allocated to another branch. See State ex rel. Decker v. Montague, 195 Minn. 278, 262 N.W. 684, 689 (1935). Critically, in State ex rel. Birkeland v. Christianson, we said the following:
The Governor is the head of the executive department and the chief executive of , the state. The three departments of state government, the legislative, executive, and judicial, are independent of each other. Neither department can control, coerce, or restrain the action or nonaction of either of the others in the exercise of any official power or duty conferred by the Constitution, or by valid law, involving the exercise of discretion..The Legislature cannot change our constitutional form of government by enacting laws which would destroy the independence of either department or permit one of the departments to coerce or control another department in the exercise of its constitutional powers.
179 Minn. 337, 229 N.W. 313, 314 (1930).
As to the line-item veto, on at least three occasions we have stressed that this power, although assigned to the Executive, must be narrowly construed “so as not to exceed its limited function as contemplated by the constitution.” Johnson v. Carlson, 507 N.W.2d 232, 233 (Minn. 1993); see Brayton v. Pawlenty, 781 N.W.2d 357, 366 (Minn. 2010) (noting that the line-item veto power “must be construed narrowly to prevent usurpation of the Legislature’s proper authority”); Inter Faculty Org. v. Carlson, 478 N.W.2d 192, 194 (Minn. 1991) (explaining that as an' exception to the power to legislate, the line-itém veto cannot be construed to allow the Executive to use it in a way that usurps the authority of the Legislature); see also In re Application of the Senate, 10 Minn. 78, 81 (1865) (explaining that the duty of each branch is to “abstain from and to oppose encroachments on either” (quoting Hayburn’s Case, 2 U.S. (2 Dall.) 408, 410 n.(a), 1 L.Ed. 436 (1792))).7
I turn next to the analysis of why the Governor’s post-session line-item vetoes of the legislative appropriations are unconstitutional.
The Governor argues that his line-item veto power is unqualified and unlimited and includes the authority to eliminate all appropriations for the Legislature, a position that King James I might have found familiar. The Governor’s only concession in our court is to explain that an unconstitutional abolition of the Legislature, could be remedied by a judicial order that authorizes “core funding,” an option that has been dubious at best and that is now foreclosed.
The district court concluded that the Legislature was effectively abolished by the Governor’s line-item vetoes, I agree. The facts necessary to support that conclusion are undisputed. The biennial appropriations for the Legislature were eliminated by the Governor’s vetoes, and the Legislature could not use its constitutional authority to override those vetoes because the session had ended. On the basis of' these undisputed facts, and based oh the stipulations of the parties, the district court concluded that the Legislature would be out of funds within a matter of weeks (for the Senate) and at most a few months (for the House). The court reaches a slightly different conclusion by pushing the legislative bankruptcy date to sometime after the commencement of the 2018 legislative session.
These discussions about what loose change can be found and when it can be spent to keep the Legislature operating are interesting but ultimately irrelevant.
To inquire beyond the amount of the now-vetoed legislative appropriations creates its own separation-of-power concerns. How the Legislature spends its operating funds is of no concern to the Judiciary or to the dispute. Although I recognize that the court has been careful to limit its conclusion to carryover funds and some portion of the unencumbered funds available to the Legislative Coordinating Commission, it is apparent that those monies were appropriated for other reasons. It also bears mention that the only reason anyone is looking at the entirely separate, un-vetoed, appropriations to the Legislative Coordinating Commission is because the Governor’s line-item vetoes .left the Legislature without any appropriations for the 2018-2019 biennium. Accounting shifts and balance calculations by the Judicial Branch are neither necessary nor appropriate.
The abolitibn of an entire branch of government by financial impoverishment is a serious matter, one that we warned against over 40 yéars ago. In In re Clerk of Court’s Compensation for Lyon County v. Lyon County Commissioners, addressing concerns over possible legislative overreach that would create separation-of-powers issues affecting the Judiciary, we observed that:
Obviously, the legislature could seriously hamper the court’s power to hear and decide cases or even effectively abolish the court itself through its exercise of financial and regulatory authority. If the court has no means of protecting itself from unreasonable and intrusive assertions of such authority, the separation of powers becomes a myth.
308 Minn. 172, 241 N.W.2d 781, 784 (1976). Those principles apply to the present controversy as well. I would therefore conclude that the Governor’s post-session line-item vetoes of the entire appropriations for the Legislature effectively abolished an independent branch of our government and therefore violated Article II.I of the Minnesota Constitution.
Setting aside the question of .how long the Legislature can survive on savings, the Governor’s line-item vetoes are unconstitutional for an additional reason. I would also conclude that the Governor’s line-item vetoes were unconstitutionally coercive in violation of Article III and void on that ground as well. We have stated clearly that one branch of government may not coerce another'branch in the exercise of its constitutional powers. Birkeland, 229 N.W. at 314. The legislative scrum as issues are debated, sometimes with great heat, and the give and take between the Legislative and Executive Branches as those issues are. sorted through, frequently . involve some.element of coercion. Threats to take one course of action to force some other course of action are not uncommon. But the circumstances in which the Governor used his constitutional power are very different from those historic and well-understood practices.8
Here, the Governor cancelled every dime appropriated to operate a co-equal branch of government that is established by Article IV of our constitution. Then, the Governor told the Legislature to accede to his demands or remain financially unable to fulfill the powers conferred on the Legislature by our constitution. There are coercive actions that are unclear, where perhaps judicial restraint would be appropriate, where the “pearl of great price”9 is something other than the continuation of one of three co-equal departments of the government. Those are not the actions we now consider. The Governor’s message was neither tentative nor unclear; he offered the Legislature two choices, neither of which has ariy foundation in the powers conferred on the Executive Branch by the constitution.10 We need' not set out a rule for all time as to when a veto is unconstitutional because of coercion. It is enough to state based simply on the Governor’s words that his exercise of the line-item veto power was unconstitutionally coercive.
The Governor’s response to the claim of coercion is to point to our decisions that suggest that we do not examine the motives of actors in the co-equal departments of government. See Johnson, 507 N.W.2d at 234-35 (declining to consider policy reasons listed in the veto message when holding that the Governor validly line-item vetoed an “item of appropriation”); Inter Faculty Org., 478 N.W.2d at 197 (finding line-item veto textually invalid and not considering education policy disagreements that explicitly motivated the veto); Starkweather v. Blair, 245 Minn. 371, 71 N.W.2d 869, 875-76 (1955) (explaining that the motives of the Legislature in.passing legislation are beyond judicial. inquiry when the Legislature has not exceeded its constitutional authority). But these cases simply do not apply to the conflict here. Unlike these earlier cases, where determining the underlying political calculations—the motive, if you will—would require judicial investigation or speculation, the Governor’s demands are clear, unambiguous, and lack any equivocation. By avoiding inquiry into “motive” in these earlier cases, the court declined to search among or beyond explicit policy reasons to find and evaluate some unstated, presumably unconstitutional, agenda. These cases simply do not apply here, where otherwise textually valid lineritem vetoes were used to achieve an unconstitutional result—to coerce another branch of government. In other words, here the Governor used “a constitutional power to accomplish an unconstitutional result.” Starkweather, 71 N.W.2d at 876. Starkweather, Inter Faculty Organization, and Johnson, all dealing with routine disputes between the Executive and Legislative Branches, do not stand for the proposition that we must avert our eyes in the face of a claimed right by one branch of government to pressure another branch of government to acquiesce or face obliteration. Indeed, to do so effectively ignores our repeated admonition that we construe the Governor’s line-item veto power “narrowly.” Johnson, 507 N.W.2d at 233.
IV.
Article III of the Minnesota Constitution establishes three co-equal branches of government. The exercise of the line-item veto power over the legislative appropriations for the Minnesota Senate and the Minnesota House of Representatives, following legislative adjournment, alters the balance of powers by elevating the powers of the Governor. Because this result creates three unequal branches of government, I would hold that the line-item vetoes of legislative appropriations are unconstitutional as a violation of the Separation of Powers required by Article III of the Minnesota Constitution. I, therefore, would affirm the district court.
An unconstitutional veto is “null and void and without legal effect.” Inter Faculty Org., 478 N.W.2d at 197. Because the Governor’s line-item vetoes violate the Separation of Powers required by Article III of the Minnesota Constitution, I would declare those vetoes null and void and restore the legislative appropriations.
For the foregoing reasons, I respectfully dissent.
," “No 'scutage' or other 'aid' may be levied in our kingdom without its general consent....” G.R.C. Davis, Magna Carta 18 (1963) (Article 12). “To obtain the general consent of the realm for the assessment of an 'aid'—except in the three cases specified above—or a 'scutage', we will cause the archbishops, bishops, abbots, earls, and greater barons to be summoned. ..." Id. at 19 (Article 14).
. “That levying money for or to the use of the Crown by pretence of prerogative, without • grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal....” The Bill of Rights, 1 W. & M„ sess. 2, c. 2 (1689).
. E.g., Benjamin W, Labaree, Boston Tea Party, in The Oxford Companion to United States History 84 (Paul S. Boyer ed„ 2001).
. U.S. Const., art. I, § 9, cl. 7 ("No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law...
. Minn, Const, art. XI, § 1 (“No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law.”).
. The Legislature rarely overrides a line-item veto. Although available records from the Minnesota Legislative Reference Library are incomplete, since the adoption of the power in 1876, out of the total recorded 678 line-item vetoes, the Legislature has attempted an override only 18 times, and only four have succeeded—less than 1 percent. See generally Joel Michael, Research Dept., Minn. House of Representatives, History of the Item Veto in Minnesota 17-18 (Sept. 2016). The successful overrides came in 2000, after the Governor line-item vetoed eight items of appropriation. The Legislature overrode four of the eight line-item vetoes. Id. Those four overrides all occurred during a historically unusual period where one party controlled the Executive Branch, one party controlled the House of Representatives, and one party controlled the Senate.
. The line-item veto originated in the Constitution of, the Confederate States of America and was designed to curb legislative riders that had become common in the era before ..the Civil War. See Staff of H. Comm. on Rules, 99th Cong., Item Veto: State Experience and Its Application to the Federal Situation 3, 6-7 (Comm. Print 1986) (citing Constitution .of the Confederate States of America, Art. I, § 7. Reproduced in Henry Steele Commager, ed., Documents of American History 378 (1973)). Minnesota was an early adopter of the line-item veto, adding it to the state’s constitution in 1876. Id. at 201.
. The Governor claims, with some justification, that the unprecedented actions of the Legislature occurring during the legislative session, including a "poison pill’’ to defund the Department of Revenue, were coercive and at least part of the reason for the events that followed, As the court correctly notes, that issue is not before us.'
. Matthew 13:46.
.“I am line-item vetoing the appropriations for the Senate and House of Representatives to bring the Leaders back to the table to negotiate provisions in the Tax,' Education and Public Safety bills that I cannot accept.” Letter from Mark Dayton, Governor, State of Minn., to Michelle L. Fischbach, President of the Senate, State of Minn. (May 30, 2017).