Minnesota businesses and citizens have been operating under a Peacetime Declaration of Emergency, Executive Order 20-01, since March 16, 2020.  The impetus for the Declaration was the rapidly-emerging Coronavirus as a global health crisis with far-reaching implications.  Since the original Declaration, the governor has issued 75 Executive Orders addressing various COVID-related topics from health care to real estate to construction to education.  He also has acted several times to extend the timeline under which his Peacetime Declaration remains in effect; the most recent Order extends the emergency powers until July  13, until the Executive Order is rescinded by proper authority, or until it is terminated by a 2 majority vote of each house of the Legislature pursuant to Minnesota Statutes 2019, section 12.31, subdivision 2(b), whichever occurs earlier.

The Executive Orders have legal effect; many Minnesotans have been cited for violating them, including the owner of a saloon in central Minnesota who dared to challenge the restrictions on his business.  For the most part Minnesotans have accepted the governor’s Orders as a necessary component of preserving public health and safety.  However, over the past 30-45 days a growing number of people are questioning how far the governor can go in implementing new Executive Orders, which have the effect of a duly promulgated law, albeit a law that was not created by the Minnesota Legislature nor even one resulting from normal public rulemaking.  Here’s the thing: the Minnesota Constitution vests the authority to promulgate new laws solely in the legislature, subject to a possible veto by the governor if he disagrees with what has been passed.  In addition, the governor, through his executive branch agencies, has the authority to promulgate rules to implement existing statutory authority, but those rules must go through a public review process and are subject to court review, all of which takes time.

The authority exercised by Governor Walz has, thus far, superseded all traditional checks and balances imposed by the Constitution.  A growing number of legislators are objecting to this usurpation of authority by the governor but, thus far, have not been able to muster sufficient bipartisan support to rein in his actions.  Furthermore, no Minnesota court has yet issued a ruling enjoining Governor Walz from acting unilaterally under the Peacetime Declaration.  This is likely due, at least in part, to the structure of the law which authorizes the governor’s actions, but also the unease that would attach to any court order that could unintentionally contribute to the spread of the virus.