Minnesota Republicans revive debate over governor's emergency powers

Minnesota Republicans are reigniting debate over the emergency powers used by DFL Gov. Tim Walz during the first 15 months of the pandemic, citing "mandate fatigue" from constituents frustrated by vaccine requirements for state workers and from the federal government.

Walz used the emergency powers to take sweeping action to slow the spread of the virus, from closing down schools and some businesses to instituting a mask mandate. He struck a deal with the Legislature in July to end those powers, but Republicans want permanent changes on how they can be used in any future crisis, linking the debate to the potential rejection of Walz's health commissioner.

"Over the past couple of years the governor has issued executive order after executive order with, in some cases, very little or no input from the Legislature," said Senate Majority Leader Jeremy Miller, R-Winona. "It's not just the e-mails and telephone calls we get during the session, it's when we're at the grocery store or getting gas or eating at a restaurant, we hear day in and day out from people."

It's part of an ongoing push from conservatives in states across the country to dramatically scale back the powers of governors and public health departments during an emergency, as well as limit vaccine requirements for residents. But Democrats and some public health experts have pushed back as the pandemic continues to rage in Minnesota and elsewhere.

"They are doing some things that are antithetical to public health, specifically related to emergency powers," said James Hodge a law professor and director of Arizona State University's Center for Public Health Law and Policy. "These look and feel really dangerous to public health authority across the United States, because, gosh, I mean here they are basically curtailing what we can do to respond to the next major event or even this current still-major event."

Republicans in the Senate are reviving a proposal they pushed last session that would require approval from both the House and Senate to continue any peacetime emergency longer than 30 days. Under current law, the House and Senate don't have power of approval, they can only vote to end an emergency if both chambers agree.

Ultimately, both the House and Senate voted to end the emergency this summer as part of a broader agreement with Walz on the two-year budget, but past negotiations have shown the parties are still "deeply divided" on permanent changes to the powers, said DFL House Speaker Melissa Hortman.

Democrats are worried the legislative process, which involves 201 lawmakers from across the state, is too slow and deliberative in a time of emergency.

"Wherever you are in the country, this is an issue," Hortman said. "But I think the governor exercised the powers responsibly and appropriately and in a way that the Legislature is not designed to act. So unless Minnesota goes to a full-time legislative body that is capable of responding to an emergency at the kind of speed that the governor can act, I think that our statute does not need to be changed."

Miller says early in the pandemic, the Legislature proved it can come together quickly, passing hundreds of millions of dollars in relief at the governor's request. He said he's offered to make any changes to emergency powers effective after Walz's current term in office.

"When it needs to be done it can be done, and we proved that it can be done and it can be done on a strong bipartisan basis," Miller said.

But Walz has shown little interest in permanent changes to those powers. In response to questions about whether the governor could agree to some changes, a spokesperson said "this tactic is not new," criticizing Republicans for not passing legislation to slow the spread of the virus or alleviate pressure on hospitals.

And the pandemic has become more politicized over time. Legislators in at least 30 states and the U.S. Virgin Islands introduced bills or resolutions in 2020 to limit governors' powers or executive spending, and roughly half that number in 2021, according to the National Conference of State Legislatures' data from January.

Nearly half of states have added restrictions on state public health authorities this year, said Andy Baker-White, senior director for state health policy at the Association of State and Territorial Health Officials. While some of the limitations states have passed are specifically focused on COVID-19, it would not take much to extend them to other diseases, he said.

"This is the public health toolbox," Baker-White said. "And if those tools are taken away there is going to be less for public health to work with in other outbreaks, not the once-a-century type of disease outbreaks but those that are much more common."

Many legislatures have held special sessions this fall just to address COVID regulations, including legislation exempting employer vaccine requirements. Negotiations over a special session in Minnesota to approve aid for frontline workers and drought relief for farmers has been tangled up with tensions over the administration's response to COVID.

Senate Republicans have tried to tie changes to the emergency powers to the survival of Minnesota Department of Health Commissioner Jan Malcolm, whose appointment they've threatened to reject during a special session.

Miller recently said the Senate could agree to take Malcolm's confirmation off the table for a one-day special session, but he wants Democrats to accede to prohibiting state-issued vaccine requirements.

One day before the Thanksgiving holiday, Walz said special session negotiations are "still not a done deal." The state worker vaccine requirement falls under the federal mandate, meaning it won't go away with state action.

Even if Walz and legislative leaders come to an agreement around a special session, Malcolm's confirmation and emergency powers will still be up for debate when the regular session convenes in January.