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It’s difficult to defend Michelle Fischbach’s decision to attempt to serve as both Gov. Dayton’s Lieutenant Governor and the state senator representing SD-13. How can a supposedly educated woman think that the DFL operatives on the Minnesota Supreme Court will side with her, not with the man who appointed them?

Republicans point to a Minnesota Supreme Court ruling from 1898. At that time, the lieutenant governor was elected apart from the governor. Further, why would anyone think that it’s possible to serve simultaneously in the Executive Branch and the Legislative Branch? In March, 2016, I wrote a post titled Is the IRRRB unconstitutional? In that post, I cited an audit report from Jim Nobles, who wrote that “State statutes on IRRRB’s governance structure are vulnerable to a constitutional challenge.”

That’s because the IRRRB’s board is composed of Iron Range legislators who have the authority to appropriate money to specific projects. The IRRRB also is an executive branch agency whose commissioner is appointed by the governor. Simply put, you can’t serve in 2 different branches of government.

Sen. Fischbach should know this. She’s fighting a fight she can’t win. Apparently, she hasn’t figured that out yet. Here’s what she said:

I was elected by the constituents of Senate District 13, and I have a commitment to represent them in the senate.

She ran for and got elected to be the Senate President. Anyone with a bit of understanding of Minnesota’s constitution knows that the Senate President is part of the line of succession to the governorship. If Sen. Fischbach wanted to guarantee that she represent the citizens of SD-13 for the full 4-year term, then she shouldn’t have run for Senate President.

If Lt. Gov. Fischbach cares about the Constitution, she should resign from the Senate this afternoon. The minute Gov. Dayton announces the date for the special election for filling her empty Senate seat in SD-13, she should then resign as Lt. Gov., then immediately start campaigning to regain her Senate seat.

By attempting to wear both hats, she’s causing a constitutional crisis that might hurt Republicans this session and that will cost taxpayers tons of money to pay for the lawsuit that she’ll lose. Apparently, Sen. Fischbach thinks that the Constitution doesn’t apply to her. She’s wrong. She should resign before she hurts her constituents.

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According to this article, Sen. Michelle Fischbach, (R-Paynesville), “has been told by Senate Counsel that the state Constitution allows the Senate president to hold both jobs.” That’s her plan. The article then states “That plan would likely be challenged by Minnesota Democrats, since it puts a Republican a heartbeat away from the governorship and also allows the GOP to retain a Senate seat.”

The DFL might want to cool their jets before filing that lawsuit. There’s actually case law on this situation, which Scott Johnson wrote about in this post. Included in Johnson’s post is a link to this tweet. According to the tweet, “There is no language in the Constitution requiring or justifying the conclusion that the Senate office of the president pro tempore becomes vacant when he becomes Lieutenant Governor, by reason of, and during, a vacancy in the office of the Governor” and that “there is no escape from the conclusion that the president pro tempore does not cease to be a senator when he becomes Lieutenant Governor by reason of a vacancy in the Governor’s office.”

This article, however, reaches a different conclusion:

A memo from the Senate’s top lawyer backing up her position cites an 1898 Minnesota Supreme Court ruling that decided the same question. In 1898, the lieutenant governor presided over the Senate. A 1971 constitutional amendment separated the two jobs.

A 1968 amendment prohibited senators or representatives from holding “any other office” but the Senate lawyer contends the “core reasoning” of the earlier court decision still applies. He did, however, warn Fischbach that her plan to hold two offices at once could be challenged in court.

With Minnesota’s Supreme Court stacked with DFL operatives, I’d expect the Court to rule in the DFL’s favor.

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One of the reasons why Republicans should write more letters to the editor is because editorial boards aren’t that bright. This Our View editorial is a perfect example of their bias.

It starts by saying “The Minnesota Supreme Court last week upheld the line-item veto of the state Legislature’s budget and told its warring co-equal branches to work out their problems themselves. The court is right on that. It remains to be seen if Gov. Mark Dayton and the leadership of the Legislature are willing to do that.”

Let’s be clear about this. While there’s a political component to this, it’s still a constitutional issue. By siding with Gov. Dayton, the 5 clowns in black robes gave future governors the upper hand in budget negotiations. All that’s required is for the governor to reach an agreement on a budget, the legislature passes that budget, the governor signs the agreed-upon budget before he line-item vetoes the legislature’s operating budget. At that point, the governor would have a stacked deck in demanding the opposition party renegotiate parts of the deal that the governor didn’t want to compromise on.

We are where we are: Dayton has his hand on the Legislature’s financial windpipe and appears quite willing to strangle it to get what he wants. The Legislature’s argument that the governor is effectively abolishing the legislative branch fell on deaf ears with the justices. And the relationship between the governor and the Legislature grows ever more toxic.

It’s wrong to call the black robe bandits justices. They’re DFL operatives first. They aren’t principled jurists who understand the concept of co-equal branches of government. Further, they’re cowards. They didn’t want to be criticized by the media, which is overwhelmingly liberal, so they ruled in the DFL’s favor.

It is well past time for Dayton and Daudt to rise above their mutual contempt. It is not enough for one to do so. It is incumbent on both to act in good faith. The poison pill provisions must stop; the veto should be the last option if a deal has been struck.

Again, this editorial board plays the ‘they’re both guilty’ card. That’s BS. Forgotten is the fact that Gov. Dayton agreed to the tax bill. If he didn’t agree with it, he shouldn’t have agreed to it before calling the special session.

When the legislature opens its session in February, the House should pass a bill funding the legislature, then send it to the Senate. After it’s passed by the House and Senate, they should send it to Gov. Dayton. If he vetoes the funding bill, the House should immediately schedule an override vote. If the DFL legislators want to kill their political careers for a lame duck governor, let them vote to sustain Gov. Dayton’s veto.

If they vote to override Gov. Dayton’s veto, Republicans should highlight the fact that every DFL legislator voted against the GOP tax relief bill in 2017. I’d love hearing them explain why they voted to not cut taxes but voted to override Gov. Dayton’s veto of the Republicans’ tax relief bill in 2017.

Sen. Dave Senjem isn’t happy with the Minnesota Supreme Court’s ruling that Gov. Dayton was within his rights to veto the Legislature’s funding. That’s why he’s proposing putting a constitutional amendment on the 2018 ballot.

Because the legislature decides whether constitutional amendments are allowed on the ballot, Gov. Dayton doesn’t have a say in the matter. Further, this should frighten rural DFL legislators. Republicans should highlight the fact that this constitutional amendment is required because a) Gov. Dayton vetoed the funding and b)the Supreme Court got their ruling badly wrong. The first vote taken by the House will be to override Gov. Dayton’s line-item veto of the Legislature’s funding. If DFL legislators vote to sustain Gov. Dayton’s veto, they’ll be tarred and feathered and it’ll be deserved.

Sen. Senjem made a good point when he said “We’re not co-equal anymore because I believe the precedent has been set that yes, it’s OK for a governor to veto legislative appropriations, and there are no consequences, and I think that puts the Legislature in almost a subservient position.”

The Supreme Court got this wrong. Thanks to that ruling, the legislature has 2 terrible choices. Either they can cave to the governor’s demands or they can stop representing their constituents. Actually, there’s a third option. That third option is to spend down the money appropriated for the operation of the Legislative Auditor’s Office and the Revisor of Statutes’ office.

Spending down the money that’s supposed to run the OLA is terrible because they’re the state equivalent of the IG at the federal level. Should we shut down the office that caught April Todd-Malmlov mismanaging MNsure? Should we shut down the office that caught Ted Mondale and Michelle Kelm-Helgen using luxury suites at U.S. Bank Stadium to entertain friends, political allies and family?

It’s time to put this constitutional amendment on the ballot. It’s time to shame these Supreme Court justices for getting the decision wrong.

When the Minnesota State Supreme Court said that governors couldn’t use part of the state’s constitution to achieve an unconstitutional result, they must not have meant it. Moments ago, the Minnesota Supreme Court ruled in Gov. Dayton’s favor.

According to the article, “The Minnesota Supreme Court has upheld Gov. Mark Dayton’s line-item veto of the Legislature’s operating budget. The state’s high court says Dayton’s veto complied with the law, and that the state constitution does not allow the courts to order funding for the Legislature without an appropriation.”

The article further states that “Thursday’s decision hands Dayton a major legal victory as he seeks to rework costly tax breaks and other measures he signed into law this spring as part of a new state budget.” That’s pro-DFL spin. That sentence should read “Thursday’s decision hands Minnesotans a major legal defeat because they’ll soon be without representation in St. Paul.”

The DFL operatives on the Supreme Court decided that Minnesotans didn’t really have a constitutional right to 3 fully functioning branches of government. That’s one of the things they required in their in initial ruling. In this post, titled “D-Day for Dayton, Supreme Court”, I said that, whether the Supreme Court knew it or not, they were on trial. This morning, they handed down a ruling that essentially said that they’d failed.

I’d love hearing them explain how legislators can represent their constituents without getting paid. I can’t wait to hear them explain how this doesn’t give the governor a weapon in getting everything they want in budget negotiations.

The thing is that I’ll have to wait for those things because they can’t explain those things to me. There isn’t a logical explanation for their actions. Gov. Dayton packed the court. This morning, they repaid him for their appointments.

Now it’s time to throw out the DFL operatives that Gov. Dayton appointed to the Supreme Court. That can be done through the ballot box. Minnesotans, do you really want a governor who essentially has the power of an emperor? I don’t!

Brian Bakst posted a prediction on what will happen next. I agree with him:

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According to quotes from this article, the St. Cloud City Council doesn’t like the First Amendment. This isn’t an opinion. That sentiment comes through loud and clear when Jenny Berg quoted Carol Lewis as saying “People were extremely angry with me for limiting time and number (of speakers). Now what if I limited topic? My point is we would have had a riot on our hands.”

The City Council already limits what citizens can talk about during open forum. According to the article, the “council’s rules of order state residents can speak at open forums for two minutes on topics not on the agenda. Refugee resettlement became a topic on the agendas when council members Jeff Goerger and Jeff Johnson asked to discuss resolutions during the discussion portion of the meeting.” Having watched the Oct. 23 and Nov. 6 meetings, I can state with certainty that Council President Lewis indeed limited the citizens’ speeches to subjects not on the agenda.

That’s a violation of the First Amendment, which states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” It’s well-established fact that the Constitution is a limiting document written to restrict the federal government. There’s nothing in the Constitution that permits the government, whether it’s a city council or the US Senate or anything in between, to tell its citizens what subjects it will permit. The First Amendment says that people have “the right to peaceably assemble” and “to petition the government” about its grievances.

The government is prohibited by the First Amendment from telling its citizens what they can’t talk about. This is telling, too:

Council member Dave Masters said he is in favor of the open forum, but wants a civil discussion. “Some of the speakers we’ve had recently I felt went over that line,” Masters said, saying some speakers attacked the City Council or specific members. He said he has an issue with people “grandstanding” in front of the camera.

A politician who has a problem with citizens grandstanding. Seriously? That’s rich. It’d be nice if we lived in a society where all issues were solved through civil discussion. That isn’t the society we’re living in. Further, the government can’t limit speech, even if it’s grandstanding speech. Then there’s this:

City Administrator Matt Staehling suggested the council consider moving the open forum to the end of the meeting so residents can talk about whatever topic they want, even if it was on the agenda. “It might be easier to manage,” he said. Staehling said some other cities allow people to register to speak at the open forum ahead of time with the city clerk; those people then have priority at the meeting.

Again, the First Amendment already gives people the right to “talk about whatever topic they want.” That’s addressed by the clause stating that citizens have the right “to petition the government for a redress of grievances.” The definition of grievances is “a wrong considered as grounds for complaint, or something believed to cause distress.” The definition of redress is “the setting right of what is wrong.”

The government can’t tell citizens that they can’t address something that’s causing them distress or worry. Government might state its preferences but it can’t enforce their preferences if their preferences don’t agree with the Constitution.

This is troubling:

Johnson said he had concerns with the council not following its rules of order for the past month, and was frustrated with how Goerger’s resolution “in support of a just and welcoming community” was presented to the City Council at the beginning of the Oct. 23 meeting and then voted on that night.

The Council didn’t follow its rules that night. The City Clerk admitted that Councilman Goerger’s resolution wasn’t included in Councilman Johnson’s packet of information for the Oct. 23 meeting even though it was received on the Thursday before the Oct. 23 meeting. That means Councilman Goerger’s resolution was intentionally hidden from Councilman Johnson.

BTW, that’s a violation of City Council Rule # 6, which states “All items of business before the Council for the first time shall be listed as new business or on the Consent Agenda with a notation indicating the item is new business. Official action may not be taken if any Council Person objects to action being taken on the item.” Councilman Johnson certainly objected to voting on Councilman Goerger’s resolution because he said he hadn’t had time to read it.

The rules don’t mean anything with Council President Lewis or to most of the members of the Council. Most of the City Council members just care about winning. If they have to break the rules to win, they’re ok with that.

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The St. Cloud City Council just passed an ordinance raising the minimum age to purchase cigarettes to the age of 21. Mayor Kleis made a great presentation, talking about how the United States Constitution was amended in 1972 in less than 3 months. Mayor Kleis noted that the 26th Amendment was passed unanimously in the Senate and with only a handful of dissenting votes in the House of Representatives. It took the states only 3 months to ratify the constitutional amendment. The text of the 26th Amendment statesSection 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.”

After hearing compelling testimony from the community, City Council President Lewis, Councilman Laraway, Councilman Hontos and Councilman Masters still voted with the CentraCare lobbying unit. One testifier was Mark Fritz, the owner of E-Cig Emporium in St. Cloud. His testimony was blunt and to the point. He said “Your ordinance will not stop them. You need to recognize all you’re doing is hurting your local businesses.”

The good news is that Mayor Kleis has already announced that he’ll veto the ordinance, saying “I can’t support it and I won’t sign it.” Thanks to Kleis’s veto, St. Cloud stayed away from becoming a total supporter of nanny statism.

The truth is that the City Council is approaching this the wrong way. They’re trying to limit supply when they should be trying to limit demand. If you don’t reduce demand for cigarettes, limiting where young people can purchase cigarettes won’t have a significant impact. It’s the rule of the forbidden fruit. If you tell someone they can’t have something, that thing quickly becomes the thing they want most.

One of the testifiers noted that cigarette smoking has dropped each year for a long time. It isn’t the problem health organizations make it out to be. That isn’t saying we shouldn’t try reducing it more. It’s that we should try reducing smoking through educating people, then trusting them to make an informed decision. People who are old enough to sign a contract are certainly old enough to make an informed decision. Based on their votes, Lewis, Laraway, Hontos and Masters disagreed with that principle.

St. Cloud State students should remember that these councilmembers think these students aren’t able to make informed decisions the next time that quartet is up for re-election.

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Apparently, Dave Kleis doesn’t understand the Constitution. According to this article, Mayor Kleis said “Cities clearly do not have a role in immigration. This is a federal issue. We should be focusing on city issues.” Later, Kleis said “I believe a moratorium violates the U.S. Constitution, particularly the equal protection clause. We strive very hard to be a welcoming community. We work very hard to encourage people to come to the community. We should be focusing our efforts on making sure everyone succeeds.”

Simply put, Kleis is wrong about whether cities have a role in refugee resettlement. While it’s indisputable that the federal government sets immigration policy, it’s equally true that local communities have a role in other aspects of refugee resettlement. For instance, “the Refugee Act of 1980 states in 8 U.S.C. 1522(2)(A): ‘The Director and the Federal agency administering subsection (b)(1), shall consult regularly (not less often than quarterly) with State and local governments and private nonprofit voluntary agencies concerning the sponsorship process and the intended distribution of refugees among the States and localities before their placement in those States and localities.'”

The last I looked, nobody has challenged the constitutionality of the Refugee Act of 1980. The Supreme Court certainly hasn’t declared it unconstitutional. My question for Mayor Kleis is simple. What’s the foundation for your belief that the Refugee Act of 1980 is unconstitutional?

It’s indisputable that the Refugee Act of 1980 requires consultation with local governments. Since that law hasn’t been declared unconstitutional, there’s no chance the law violates the Fourteenth Amendment. The definition of moratorium is “a suspension of activity.” How is a temporary suspension of refugee resettlement a violation of the Fourteenth Amendment?

What’s most aggravating is Mayor Kleis’s statement that St. Cloud is “a welcoming community.”

Sounds familiar, doesn’t it?

This paragraph brings new questions:

Johnson’s resolution would only temporarily halt “primary refugees” — those who come directly from overseas and settle in Minnesota. It could not ban secondary migration; refugees are free to move around the country like anyone else, and they often do to join family and relatives, or to find employment.

What does this, or any other part of Johnson’s proposed moratorium, have to do with the Fourteenth Amendment? That’s the polite way of asking whether Kleis knows what he’s talking about. This statement is insulting:

Our budget is transparent. That budget, in detail, is on our city’s website. We don’t have any funding that goes to refugee resettlement.

Mayor Kleis, how much money is spent on law enforcement policing the primary locations where refugees live? It isn’t a separate line-item in the budget so how would we know how much resettled refugees cost city taxpayers? How much money from the city budget goes towards inspecting restaurants run by refugees? I’ve heard multiple reports that city health inspectors have a list of Somali restaurants where they won’t inspect because they’re that unsanitary.

Mayor Kleis, it’s insultingly dishonest to insist that the city doesn’t spend money providing services to refugees. You used to be a decent mayor. That’s changed, thanks to your unwillingness to confront St. Cloud’s challenges. While you bury your head in the sand, the citizens of St. Cloud suffer.

It’s time for you to retire so a responsive mayor can get elected.

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Jonathan Turley’s op-ed highlights the Democrats’ illogical health care hissy fit. In his op-ed, Turley wrote “There appears no end to the villainy of President Trump. This week, California Attorney General Xavier Becerra denounced Trump as nothing short of a saboteur while members have lined up before cameras to denounce his latest executive order as tantamount to murder. His offense? He rescinded an unconstitutional order by President Obama and restored the authority of Congress over the ‘power of the purse.’ The response to what Becerra called “sabotage” has been a call for a rather curious challenge where Democrats want the judicial branch to enjoin the executive branch from recognizing the inherent authority of the legislative branch. It is an institutional act that would have baffled the Framers.”

He continued, writing “I had the honor of serving as lead counsel, with an exceptionally talented team from Capitol Hill, for the U.S. House of Representatives in its challenge to unilateral actions taken by the Obama administration under the Affordable Care Act. In a historic ruling, U.S. District Judge Rosemary Collyer ruled in favor of the House of Representatives and found that President Obama violated the Constitution in committing billions of dollars from the U.S. Treasury without the approval of Congress.”

If I had to bet, I’d bet that Gen. Becerra knew he was grandstanding when he did this interview:

In the interview, Becerra said that President Trump either made illegal payments during his first few months in office or he’s breaking the law now. That’s the truest statement he made in the interview. Prior to this decision, President Trump made unlawful payments. Now that that’s ending, Democrats have 2 options. They can either engage in some good-faith negotiations to fix all that’s broken with the ACA or they can get rejected in court, which will certainly happen.

These Democrat attorneys general might win in the 9th Circuit. There’s no doubt that they’ll get stopped in the Supreme Court, though.

There’s little doubt that Democrats think Obamacare is a winning issue. That’s the message sent from their filing a lawsuit aimed at forcing President Trump into paying the Obama-era subsidies. The Democrat AGs have 2 major problems staring at them. The first deals with a legal issue. The other deals with a political issue.

First, let’s deal with the legal issue. The AGs’ problem is that they’re attempting to compel President Trump to pay out money that hasn’t been appropriated by Congress. That isn’t opinion. It’s a finding of fact by a federal district court judge. George Washington University Law Professor Jonathan Turley was the lead counsel for the House of Representatives in their actions against President Obama. According to Prof. Turley, what happened was that the ACA provided for subsidies to insurance companies. The bad news for President Obama was that he needed Congress to appropriate the money for those subsidies. When Congress said no, President Obama ordered the Treasury Department to pay the subsidies.

As Professor Turley explains in this video, the court ruled in Congress’s favor:

According to the article, “The states are asking the court to force the Trump administration to make the next payment to insurers, scheduled for Oct. 18. In a separate court case, the Justice Department notified a federal appeals in court in Washington Friday that payment ‘would not occur.'”

In their filing, the AGs “claim that Trump’s decision to halt the payments constitute an attempt by the president ‘to gut the health and well-being of our country.'” The reality is that President Trump is sending the message that he’ll follow the Constitution’s instructions for appropriating money. The ACA allowed Congress to appropriate money. It didn’t instruct Congress to appropriate money for these subsidies.

As for the political problem, Democrats are hoping that they can portray Republicans as heartless, which is pretty much the Democrats’ entire playbook. Republicans’ reply should immediately be that they’re prepared to work out a long-term fix of the ACA but that it requires Democrats to engage in good-faith negotiations.

That’s the last thing that Democrats want. They’d prefer demagoguing the issue. Unfortunately for them, this issue is too sensitive for that. That isn’t to say that Republicans are in the clear on this. It’s just that this turns into a wash, with both sides getting hit with negatives.

Professor Turley nailed it when he said “We don’t have a lot of options in the democratic process. You can compromise and try to convince people in Congress or you can try to change Congress but you can’t circumvent Congress.” President Obama tried ignoring Congress. The courts shot him down. Now, these Democrat AGs are going to try re-litigating the case that President Obama just lost. Good luck with that.