The attorney for a group of Republican lawmakers and small-business owners argued before a state judge Thursday that the Minnesota Legislature was “lazy” and failed to set appropriate guidelines limiting the governor’s powers for handling the COVID-19 pandemic and other emergencies.
Democratic Gov. Tim Walz has made extensive use of peacetime emergency powers under state law to rapidly respond to the coronavirus pandemic, issuing 79 emergency orders since March. His actions, including school, church and business closings, have spurred eight cases in state and federal courts.
Walz’s emergency powers have become tied to ongoing negotiations over state infrastructure borrowing, police reform and other issues during the legislative special session.
The governor said Thursday he would be willing to hand over control of 30 of his executive orders to the Legislature. House Minority Leader Kurt Daudt, R-Crown, has been a staunch opponent of Walz’s use of the powers and said in an e-mail Thursday that he has been meeting regularly with the governor’s office to develop “a limited set of tools to respond to COVID-19” in place of the emergency powers.
Ramsey County District Court Judge Thomas Gilligan heard arguments Thursday in one of the suits brought by 13 GOP state House and Senate members and various small businesses, including boxing clubs, a dance school and bar and grill.
Minnesota is not the only state where a governor’s emergency powers are being questioned. All but one state in the U.S. is under some form of emergency order, and similar lawsuits are being considered in courts across the country. They have drawn intense public interest, particularly from groups that see the pandemic restrictions as an infringement on civil liberties.
For Thursday’s hearing, 495 people tuned in to the Zoom call to watch the court debate play out, Gilligan noted.
Erick Kaardal, the attorney for the Republicans and businesses groups, argued that state lawmakers failed to include a key provision many years ago when they created the law delegating emergency authority to the governor. The law, he argued, should have required governors to use the “least restrictive means” possible when limiting people’s freedom during emergencies.
“The Legislature made a mistake and the governor has gone too far. And so now we are in a situation where the governor is acting like the Legislature and making laws without any restrictions,” Kaardal said.
Solicitor General Liz Kramer, representing Walz, said the law does provide for legislative review and limits on governors’ powers, even if they are not the restrictions Kaardal personally would have liked.
“That’s fine. But that doesn’t mean you get to come into court and enforce your different opinion. ... The governor and this court are bound by the law as it is,” she said.
Kaardal is seeking a writ blocking the governor from issuing more executive orders during the current state of peacetime emergency. Kramer asked the judge to dismiss the case.
Walz has extended the peacetime emergency and his accompanying powers repeatedly since March, with the latest extension lasting through mid-August. Each extension of the emergency triggers a special session of the Legislature, giving lawmakers a chance to veto the governor’s special powers.
The Republican majority in the Senate has repeatedly voted to end Walz’s powers, but the Democratic-led House has blocked those moves. Both chambers must agree to end the peacetime emergency.
Kaardal said that requiring the Legislature to veto emergency powers is unconstitutional. But Kramer countered that is one of the ways Walz’s powers are checked. There are also the many legal cases taking place to scrutinize the actions of the governor, and Walz’s orders must be reviewed by Attorney General Keith Ellison and other constitutional officers who make up a state executive committee.
Gilligan questioned how a governor could quickly respond to emergencies without some form of unilateral powers, and said it seems the Legislature already built into the law a way to end the emergency powers if lawmakers want to.
“I’m a little bit uncomfortable being the referee between two branches of government,” he said. He set no date for a decision.