Gov. Walker has continued to threaten he will lay off thousands of state employees if Democratic state senators don't soon (actually, it's already past his original deadline) return to the Capitol to provide a quorum for his union-busting "budget repair" bill that also increases future state debt. He didn't do that in his budget address Tuesday, although his proposed budget did contain future unrelated lay-offs he had telegraphed earlier.
However, in both cases, it seems more and more clear that if he decides to remain adamant, Walker may have no choice but to pull a George Walker Bush and simply declare he has the power to do, constitution be damned. That's, after all, a tactic he was comfortable using as Milwaukee County executive, even though courts eventually reversed him at least twice.
Likewise, if he tried a similar stunt as the state's executive, Walker would risk being overturned, although one supposes if it came to a court fight ensued, the state Supreme Court, as now constituted with a conservative majority, might eventually pull a Scalia-type rabbit out of its hat and creatively reinterpret the Wisconsin constitution. Former GOP legislator David Prosser might be the court's deciding vote, in that case.
True, Democratic Gov. Jim Doyle, resolving a projected budget deficit nearly twice the size of the current gap, did lay off and furlough state workers temporarily, but he did so with the advice and consent of the legislature and -- even more important -- through the collective bargaining process Walker intends to destroy. Walker, according to legal analysis, would likewise need legislative consent, which at the moment is impossible because, hey, state Senate Democrats are staying away from the Capitol, preventing any action in that house on budget-related measures.
Evidence that Wisconsin governors have no power to unilaterally lay off workers comes from a new Salon.com article in which a University of Minnesota law professor analyzes the situation. The money 'grafs:
If the Senate doesn't convene to vote and no budget is adopted, can Walker simply suspend collective bargaining rights and lay off public employees on his own? The answer is no. The governor has broad veto authority under Article V, Section 10, but he cannot use power until a bill is presented to him. Similarly, he cannot act unilaterally to balance the budget if the Legislature does not act. Tim Pawlenty, then the governor of Minnesota, learned this in 2010 when the Supreme Court in his state ruled that his efforts were illegal. The power to pass a budget and allocate money is a legislative function. For Walker to just fire thousands of state employees in the name of balancing the budget without legislative authorization might also be a constitutional violation.
Thus, there may be no constitutional way for Gov. Walker and his Republican allies to enact their collective bargaining ban -- as long as every Democratic senator stays away from Madison.
That's the word from David Schultz, a Hamline University professor in the School of Business and a professor of law at the University of Minnesota. He is the author of more than 25 books and 70 articles on American politics, policy, and law, including a two volume constitutional law text book. The entire Salon.com article is at:
http://www.salon.com/news/wisconsin/?story=/politics/war_room/2011/03/0…