Lingering crises spark challenges to Gov. Tim Walz's emergency powers

Wielding a little-known law often used during natural disasters, Gov. Tim Walz has closed down schools, bars, restaurants, theaters and stadiums to limit the spread of the coronavirus.

Since the middle of March, he's been able to temporarily suspend elective surgeries, halt evictions and shutter barbershops — just a smattering of the measures that have intruded deeply into the everyday lives of Minnesotans. All that was before the night curfews and National Guard mobilizations to check the violent protests sparked by the killing of George Floyd in Minneapolis police custody.

"What governors have available to them that the president does not is the full, legitimate authority of a sovereign government," said James Hodge, an Arizona State University public health law professor who helped draft a model for emergency powers after the 9/11 terrorist attacks. "This is as strong as it gets in the United States."

The pandemic — paired with the chaos that erupted in the Twin Cities after Floyd's death — has triggered unprecedented use of the power in a short period of time. Walz extended a declaration of peacetime emergency in Minnesota three times in the past three months, making it the longest period of time residents have lived under a state of emergency since World War II. During that time, he has issued more executive orders in response to crises than the past four governors combined.

The jarring impact on daily life in Minnesota has brought new attention to Walz and the state's emergency powers law, created nearly 70 years ago to give the governor the ability to respond quickly to crises. It has also unleashed a debate over whether the law is necessary to save lives in a crisis, or merely grants the governor unilateral power.

That authority — rarely questioned before — is being tested in the courts as business groups, conservative activists and churches push to change the law or undo Walz's actions entirely. Republican legislators are also expected to challenge Walz's use of emergency powers when they return to St. Paul for a special session on June 12.

"This was put in place years ago so in the event of some unforeseen catastrophe or disaster, the governor can act quickly. I don't think anybody would have foresaw that one of these emergency powers' situation would last 90 days," said House Minority Leader Kurt Daudt, R-Crown.

Given some of the direst predictions about the COVID-19 pandemic, critics see no end in sight. "There's probably a 50-50 chance that he's still got emergency powers on December 31 of this year, and I think that's shocking," Daudt said.

It's a debate that's playing out across the nation, where governors in all 50 states have declared states of emergency to respond to the pandemic. The spreading chaos erupting in response to Floyd's death has layered another crisis over it all.

The state's current state of emergency is second in length only to World War II, when legislators granted the governor temporary crisis authority from 1943 until 1945. But it wasn't until 1951, near the peak of the Cold War, when lawmakers decided to enshrine emergency powers into the law books, worried about looming national threats at the time of a possible nuclear attack.

Legislators expanded that power years later, giving governors the ability to declare peacetime emergencies for acts of nature, terrorist attacks or civil strife that endangers "life and property." In an emergency, the governor can issue executive orders to marshal resources, call up the National Guard, suspend rules and establish new ones.

Gov. Tim Pawlenty used emergency powers to help with response to Hurricane Katrina and to call up the National Guard in 2007 after the I-35W bridge collapsed. Gov. Mark Dayton called an emergency to respond to threats of the Avian Flu in 2015. Throughout history, it's most often tapped by governors to respond to natural disasters such as floods, tornadoes and storms.

But as the pandemic has worn on, Republicans in the Legislature have called for an end to some of Walz's most sweeping actions, particularly his business closures and a stay-at-home order that lasted 51 days. That order directed Minnesotans to stay inside except for essential work and outdoor exercise.

The law limits the length of an emergency to only five days, but it can be extended for another 30-day period by approval from a group known as the Executive Council, made up of the state's elected constitutional officers. Like Walz, all the current members are Democrats, adding a partisan dimension to the orders. Walz has extended his emergency three times, for a total of more than 90 days, and is expected to extend it for another 30 days on June 12, triggering the special session under law. When the Legislature comes back, lawmakers have power to reject an extension of the state of emergency, but only if both chambers vote to do so.

That's unlikely with Democrats in control of the House arguing the powers have been necessary to protect the public health in an unprecedented situation. Plus, the state's part-time Legislature isn't always available to respond to a crisis, and their process — involving 201 elected officials — often moves slowly.

"It seems to me this is exactly what it's for," said House Majority Leader Ryan Winkler, DFL-Golden Valley. "The Legislature is disputatious. We go there to fight and knock things around and work on them until there's more consensus. It's intentionally slow and cumbersome."

Republicans who control the Senate want to gain explicit authority to approve any extension of an emergency, and House Republicans held out against massive infrastructure funding legislation in May in an effort to curb or end the powers Walz invoked for the COVID-19 emergency.

But if legislators don't reach an agreement on use of the powers, the courts could decide for them.

Two churches are suing Walz over restrictions on services, arguing they violate their First Amendment rights, and a group of conservative legislators has filed a lawsuit contending that the governor does not have the authority to suspend constitutional rights with executive actions. A lawsuit brought by business groups was dismissed by the Minnesota Court of Appeals on jurisdictional grounds.

Erick Kaardal, a frequent litigator against government, said Minnesota's emergency powers law gets it wrong by asking the Legislature to step in after the fact, when the Constitution says they're the body that creates laws and the governor signs off.

"This has it backward, you have the cart before the horse," said Kaardal, the attorney on both the business and legislative lawsuits. "It's a constitutional clown show."

In Wisconsin, Republican legislators sued to undo Democratic Gov. Tony Evers' lockdown restrictions, arguing he exceeded his executive authority. But Minnesota Attorney General Keith Ellison says he believes the governor is on solid legal ground, citing a 1905 case in Massachusetts in which the United States Supreme Court upheld the authority of states to enforce compulsory vaccination laws.

The coronavirus is no different, he argues.

"As long as these numbers are climbing, as long as these actions are designed to slow and stop the spread and mitigate harm," they are legitimate, Ellison said. "The point is not to curtail people's freedom or movements or rights or whatever they want to do, the point is to save lives."