If the state Supreme Court rules Tuesday that New Jersey's public workers have a contractual right to pension funding and orders Gov. Chris Christie to pay back the $1.6 billion he cut from the current budget, the fight may not end there.
State Assemblyman Declan O'Scanlon (R-Monmouth) said he would consider defying a court decision that would order such a huge payment with only three weeks left in the fiscal year, saying it would crush New Jersey's taxpayers and economy.
That kind of response could set up a power struggle between the courts and the other two branches of New Jersey government.
"If the court acts in a way that is completely unrealistic... I think our duty then is to act responsibly in the face of that irresponsible court action," O'Scanlon said.
"It's obviously something I've thought about. I would bet it's something that others have thought about. And I think it's a safe bet it's something the governor has thought of as well," he said. "This governor has proven over and over again he's willing to take these issues head on."
A spokesman for Christie declined to comment.
The court has been asked to weigh in on a dispute between Gov. Chris Christie, who slashed $1.57 billion from this year's pension payment to balance the budget, and public worker unions, who say that cut violated their contractual right to full pension funding.
The decision comes as the end of the current fiscal year looms just three weeks away.
The court could strike down all or part of a 2011 pension law that guaranteed the state would ramp up payments into the pension system, or it could uphold the law, and possibly order the state to restore the full payment.
A lower court in February ruled that the 2011 pension law created a contract between employees and the state, and Christie was in breach.
Christie appealed the decision, stressing that the court shouldn't play a role in budget disputes and doesn't have the power to force the Legislature or governor to make an appropriation.
O'Scanlon said he, and possibly others, may be willing to test that authority.
"I think as responsible legislators and what I know to be a responsible governor, I think we take action to meet the spirit of the court's ruling, if not the letter of the ruling... And that may mean defying the court," O'Scanlon said.
Christie has said the state simply can't afford to make the payment. He slashed a $2.25 billion planned contribution to $681 million after tax collections came up short.
His treasurer and the state Legislature's chief budget analyst have said that so close to the end of the fiscal year the state's coffers are nearly bare.
Christie also recommends underfunding next year's payment by $1.8 billion in his proposed budget.
Democrats have proposed raising taxes on millionaires to generate some of the cash for the fiscal year beginning July 1, while Republican lawmakers and Christie oppose the tax hike.
"I don't need a court to tell me what the dynamics are," O'Scanlon said. "The court decision doesn't change how much revenue we have... The court decision isn't really going to change what we know at all."
Assemblyman Lou Greenwald (D-Camden), said he expects the high court to uphold the lower court's ruling, which will only reinforce what he already knows: "It's the law and we have to follow it.
"I would be shocked if this decision was anything other than that."
The question remaining is what leverage the court has if the governor or lawmakers refuse to comply, Greenwald added.
"It really is just a check and balance, but a very important check and balance to the public to say this is an obligation and it has to be funded," he said.
There is an element of judicial brinksmanship anytime the courts order the other branches to act, Robert Pallito, a Seton Hall University political science professor and a former attorney, said. He expects the court to stop short of ordering a payment rather than risk that type of interbranch showdown.
"This is a tricky case for separation of powers reasons," he has said. "Courts don't like to order the political branches to raise funds or make payments."