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Take Care In Restricting Emergency Powers

By Reed Anfinson
Swift County Monitor-News
As worldwide attention was transfixed by the rapid spread of COVID-19, Minnesota Democratic Gov. Tim Walz weighed the authority vested in him under the state’s Constitution for emergency peacetime action. When those powers were written, they envisioned natural disasters like tornadoes, floods, and forest fires. Would they apply to a disease? The answer would come quickly.

March 6, 2020, the first case of the deadly disease was identified in the state. Seven days later, with 14 confirmed cases, Walz declared a peacetime emergency. March 15 schools were ordered closed to prepare plans for reopening safely. March 16, Walz signed an executive order “requiring the closure of bars, restaurants, and other places of public accommodation.” Over the next week, orders would follow that postponed elective surgeries and for stay-at-home orders.

However, the emergency authority Walz had assumed was limited to 30 days. To be renewed, his emergency powers would have to be renewed by a vote of the Minnesota Legislature and the state’s executive committee – it is made up of the governor, lieutenant governor, secretary of state, and state auditor – all Democrats.

After the November elections, Minnesota is again the only state in the nation with a divided legislature. In the state Senate, there are 34 Republicans, 31 Democrats, and two independents. But to offset Republican legislative power, the House remains in Democratic control 70 to 64. The Democratic House supported renewing Walz’s executive authority time and again.

As month after month passed with Walz’s emergency powers renewed, their extensive and extended use rankled Republicans. Business owners who saw the orders as unnecessary and unfair, and residents who saw the orders as infringing on their personal rights, grew increasingly angry.

When COVID-19 cases and deaths surged in November, Republicans again temporarily supported the governor’s use of emergency powers. But now that the cases have fallen significantly in the past weeks, and with the Legislature back in session, there are new calls for limiting the governor’s emergency powers.

As the number of those vaccinated against the virus increases, the pressure will intensify on Walz to stop using his emergency authority. Now, with new variants, some more deadly and able to evade the antibodies created when a person had the original strain of the virus, questions remain.

Senate Majority Leader Paul Gazelka, Brainerd, says amending the governor’s emergency powers is be one of his party’s top priorities in the new session. “I’m looking forward to a day where emergency powers are lifted and the governor feels like we can get there,” Gazelka said. “I’m hoping that it’s sooner rather than later.”

Democrats have been more cautious in their willingness to limit the governor’s emergency authority, taking more of a “wait-and-see” position. “The governor needs all the tools in the toolbox to get this virus under control,” Democratic House Speaker Melissa Hortman, Brooklyn Park, has told reporters.

Throughout the pandemic battle, Walz has said that his executive authority is essential to the state taking “swift action to protect the health and wellbeing of our communities, families, and businesses.”

Supporters of Walz’s authority have pointed to how dysfunctional the split Legislature has been in recent years, saying it has no capacity to act with the speed necessary to address rapid changes in the pandemic’s course. Delays could mean thousands more infections, hundreds more deaths, and renewed shutdowns of the state’s economy.

“We couldn’t do things like expediting purchases and contracts, hiring temporary workers, redeploying state employees, renting facilities and equipment and effectively managing the money without the peacetime declaration,” Joe Kelly, director of the state’s Homeland Security and Emergency Management Division, told Mike Cook of the House Information Services.

“We’re in the 11th month of a governor having special powers. Are we OK with that continuing or are we not?” said Rep. Pat Garofalo (Republican-Farmington), told Cook. “If we’re going to continue to allow one person to make the decisions, then it doesn’t matter if the decisions are good or bad. … The primary issue is whether we’re going to have a role in this or whether the governor is going to continue making those decisions.”

Walz has recently shown a willingness to listen to what the Legislature has to say about sharing power during the pandemic.

In a letter to a House Subcommittee on Legislative Process Reform, Walz wrote, “Minnesota has long been a model for good governance rooted in a spirit of collaboration. By working together on transferring these key life-saving provisions from executive to legislative action, we can demonstrate to the country how executive and legislative leaders can come together to nimbly tackle the varied challenges that the pandemic has presented.”

Some Republicans have argued that each school district should be able to decide when its students can or can’t attend classes in person. Under the state’s safe schools guidelines, we have been seeing in-person classes in many rural school districts because of our smaller class sizes. Meeting the plans’ guidelines gives some local control.

But on a broader scale, to let each school district set its own policies ignores that need for a coordinated plan to not just keep kids in school, but to protect the health of teachers and the community at-large.

Republicans have suggested that the Legislature have the right to overturn or modifying the power of individual aspects of the governor’s orders. They want to see the Legislature have a greater say in how federal funds coming into the state for economic relief and to fight the pandemic are spent.

Some Democrats have agreed that the governor’s executive must be limited under an extended public health threat.

As with all legislation, “the devil is in the details.”

We believe that there must be a strong executive authority in times of crisis with the ability to act quickly and with the capacity to pivot skillfully as the threat evolves.

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