Republicans shift to limit, not undo, Minnesota governor's emergency powers

After spending most of last year trying to undo Gov. Tim Walz's emergency powers, Republicans in control of the Minnesota Senate are trying a new strategy.

They've introduced more than half a dozen proposals this session that would not end the peacetime state of emergency outright but would dramatically change how long the governor could wield executive power without legislative approval and limit his ability to shutter schools and businesses in response to the corona­virus pandemic.

"It's one of our strongest messages that we'll push this year," said Sen. Andrew Mathews, R-Princeton, whose measure would allow businesses to fully reopen if they have a COVID-19 safety plan in place.

It is a new twist on a debate that has been simmering in St. Paul for nearly a year: How can the Legislature get more say in the state's response to the COVID-19 pandemic?

Leaders in the DFL-controlled House, who have supported the governor's actions, want to get involved too. But they're looking to alter or write some of Walz's individual executive orders into state law this session, a move that could take political pressure off the governor to continue using emergency powers.

"I do want to take a look at the executive orders and I want a full understanding of which executive orders we may need to keep statutorily and how are we going to do that," said Rep. Gene Pelowski, DFL-Winona, who held the first in a series of hearings Friday on the governor's executive powers.

The emergency powers debate is one of a handful of issues expected to dominate the 2021 legislative session, including the continued COVID-19 response and the state's two-year budget, which the divided Legislature must agree on by summer.

At the heart of the debate is Chapter 12, before now a rarely used section of state law that allows a governor to declare a state of peacetime emergency in a time of crisis and issue executive actions to quickly respond. Throughout history, it's typically been tapped by governors to respond to natural disasters such as floods, tornadoes and storms.

But since March, Walz has extended the peacetime state of emergency in increments of 30 days a total of 10 times, the longest period since World War II. He temporarily closed schools and businesses, ordered mask mandates and asked Minnesotans to stay home except for essential needs for 51 days to slow the spread of the deadly virus.

For those who willfully violated the order, the state has issued fines and levied criminal penalties as severe as a gross misdemeanor.

"If we do not assert legislative authority, there could be no limitation of the severity of a punishment any governor could impose during an executive order status," said Sen. Warren Limmer, R-Maple Grove, who brought forward a proposal this week to clarify that any punishment higher than a misdemeanor must be prescribed by the legislative branch.

A measure from Sen. Carla Nelson, R-Rochester, would remove the governor's ability to close down schools during a peacetime emergency, instead leaving that choice up to local school board officials. Another from Sen. David Osmek, R-Mound, would require the governor to get legislative approval to extend any state of emergency beyond 30 days.

Under current law, the Legislature has the option to end the state of emergency only if both chambers approve. Republicans voted to end the state of emergency during several special sessions of the Legislature last year, but Democrats in the House did not.

Even now, some Democrats are reluctant to make major changes to the law while Walz's administration continues to respond to the pandemic and manage the COVID-19 vaccine rollout.

The emergency powers statute was created more than 70 years ago to allow quicker action than is possible from the legislative body, which is made up of two chambers and 201 members, each with their own constituencies and agendas.

"The Legislature by design — institutionally and constitutionally — does not have the capacity to respond nimbly and quickly to changing circumstances in the occasion of an emergency," said Sen. Ron Latz, DFL-St. Louis Park, "in this case an invisible but deadly threat to the population of the state."

In a letter to legislative leaders earlier in January, Walz laid out seven things the Legislature could enact this session — including a face mask requirement, changes to unemployment insurance and continuation of an evictions moratorium during the pandemic — that could facilitate a quicker wind-down of the state of emergency.

"To accomplish this, we will need to work together to ensure our response maintains the needed speed and flexibility to [respond] to the pandemic, including safely and effectively distributing the vaccine," Walz wrote.

For his part, Pelowski is one of a handful of legislative Democrats who have taken issue with the extended use of emergency powers, voting with Republicans to end the state of emergency during summer special sessions. He hopes the hearings he's holding now might lead to a rewrite of the state's emergency powers law and some solution in the short term that involves both branches of government.

"We have all suffered the consequences of this thing, the state has, the nation has," he said. "I think with everything that has happened nationally, now I hope there is a new feeling that we can work together."