Unallotment in the Courts

Now that the Governor has announced some unallotment specifics, those taking the fiscal hit – especially local governments – might be examining whether there is any way to prevent unallotment.  Yesterday, the Star Tribune reported on Common Cause’s complaint about zeroing out the political contribution refund program.  The article doesn’t really get to the heart of the matter, though: is this unconstitutional or illegal?

The most common analogue is the practice of “impoundment” at the Federal level.  All Presidents did it to some degree, but Richard Nixon took it to another level, refusing to spend Clean Water Act funds even after Congress over-rode his veto of the program.  In Nixon’s practice, impoundment/unallotment functioned as a “super-veto” which effectively removed Congress’ “power of the purse.”  Impoundment was included among the articles of impeachment against Nixon, and several court cases started to challenge the practice.  Unfortunately for constitutional law, Nixon resigned and the Ford administration declined to press the issue.  Congress passed an amendment to the Anti-Deficiency Act to forestall any future Nixonian attempts to kill programs by sitting on allocated funds.  The court cases either became moot through Ford’s release of funds or were decided narrowly on program-authorization grounds. 

In our situation, the Minnesota Governor is not acting in a vacuum – there is a statute permitting unallotment that has already passed a constitutional review.  It’s still a fair question, though, whether the Governor is operating within the confines of the statute or has, like Nixon, taken this to a new level.  After all, just about every President back to Jefferson engaged in some form of “unallotment,” Nixon changed the game by basing his spending refusals on policy objections, not just financial balance.  Where Gov. Pawlenty’s budget plan falls along the line between “programmatic deferral” and “policy deferral” is likely still the central question to answer in determining the propriety of the Governor’s planned cuts.