Last week the Wisconsin Supreme Court struck down a mask mandate imposed by Democratic Gov. Tony Evers, following a challenge to his authority by a major Republican donor. It is another in a punishing series of court losses for Evers and the COVID-battered citizens of his state that included a rejection of his stay-at-home order and his attempts to limit capacity in gathering spaces.
In Minnesota, by contrast, court challenges to Gov. Tim Walz's authority to wield emergency powers during the pandemic have all failed. Minnesota Attorney General Keith Ellison told a Star Tribune reporter for a recent article that there are "legislative guardrails" but also "court guardrails, and we've won every single case because we stayed close to the law and common sense." More than a dozen judges, appointed by both Democratic and Republican governors, have upheld Walz's emergency authority.
Keeping that power in place does far more than maintain capacity limits, or require masks, to the benefit of all Minnesotans. Joe Kelly, director of the state division of Homeland Security and Emergency Management, says the emergency declaration gives him a broad array of tools and resources that otherwise would be in jeopardy.
When a COVID outbreak erupted in a Chaska school, Kelly said, "we were able to set up a pop-up testing site immediately" to trace the spread. Early in March, the Minnesota Vikings teamed up with the state to convert their practice facility into a temporary vaccination clinic that also tapped the National Guard. Such speedy action would not have been possible under what can be lengthy procedures that normally require "requests for proposal," competitive bids and established ways of reassigning public employees. "If we need a testing site, we need it now," Kelly said, "not a few months from now."
Kelly cites the build-out of the state's massive COVID testing program as a case in point. "The state doesn't normally have a state public infectious disease testing program," he said. "During this pandemic, we have built a testing system that I think is second to none, which allows the state to do 50,000 to 70,000 tests a day if necessary. That took hundreds of people and thousands of hours." The emergency declaration allowed the quick reassignment of state employees to where they were most needed and the hiring of necessary contractors. "We do seasonal, childhood vaccines as a matter of course," he said. "But immunizing 80 percent of the population with two shots in a matter of months? That requires coordination, speed and an agile system."
Kelly cautioned that there are good reasons to follow established procedures when there is not a massive public health emergency, and he is not suggesting that current practices become permanent. But the pandemic, he said, has presented challenges unlike any this state has seen in modern times.
Then there is the federal aid tied to states that have declared an emergency (which is nearly all of them). Teddy Tschann, Walz's press secretary, said the state has received $367 million to date in hunger assistance that requires a state emergency to be in effect. It is due to receive $32 million for April alone. Wisconsin may have lost $50 million per month in food assistance and other aid tied to the emergency.
And the pandemic is not over. Infection rates are back on the rise, due largely to variants, and hospitalizations continue. "We think we are at the beginning of the end," Kelly said, "but we honestly don't know for sure."
Minnesota Republicans should undertake negotiations with Walz to unwind the emergency declarations at the right time, once the worst danger has passed. But it should be done sensibly, cautiously. Walz has said he is willing to turn control of dozens of executive orders over to the Legislature. House Minority Leader Kurt Daudt, R-Crown, who has opposed Walz's use of emergency powers, said in an e-mail that he has been meeting regularly with the governor's office on developing tools for responding to the pandemic.
That's a good start. Sensible, good-faith negotiations are far preferable to battling it out in court.