Where does Walz get that executive power for COVID-19 actions?

A man gestures.
Minnesota Gov. Tim Walz provides an update on the state's next steps to respond to COVID-19 during a news conference on Wednesday, April 8, 2020 in St. Paul. Walz is extending Minnesota's stay-at-home order until May 4 as the number of COVID-19 deaths in the state continues to rise.
Glen Stubbe | Star Tribune via AP, Pool

The peacetime emergency power that Gov. Tim Walz first invoked in March and re-upped this week served as the building block for dozens of orders to shutter schools and businesses, indefinitely delay elective surgeries, speed up unemployment applications and more.

Enacted through his signature and ratified by an all-Democratic cast of statewide officeholders, the executive actions employed by the DFL governor have allowed his administration to move swiftly to tackle the coronavirus health threat in unprecedented fashion.

“As circumstances require, and pursuant to relevant law, I will issue orders and rules to protect public health and safety,” Walz stated in his March 13 order.

The scope and duration of his directives have touched off intensifying criticism from legislative Republicans and others who argue that Walz has used the authority excessively.

“It’s time to begin ending this peacetime emergency,” state Rep. Steve Drazkowski, R-Mazeppa, implored his colleagues Tuesday ahead of an unsuccessful attempt to rescind the Walz orders. “The cure has become worse than the disease.”

Drazkowski and another Republican effort to end the emergency failed in the House.

No one has mounted a legal challenge to the Walz authority, and the decades-old state law that gives it to him has been used often by governors for emergencies big and small.

Where is the peacetime emergency power defined?

It’s in state statute, number 12.31 to be precise. That law spells out two kinds of emergencies.

One involves a national security emergency such as a war or hostile action against the state or country.

The other, which applies in this case, covers more circumstances — natural disasters, terrorist incidents, industrial accidents or civil disturbances.

It doesn’t specifically list a health or pandemic crisis, but Walz stressed when he first signed it on March 13 that he believed he was on solid footing.

Walz described “the infectious disease known as COVID-19” to be “an act of nature.”

How long can it be in effect?

The initial declaration by a governor can last for five days. After that, he needs the consent of the state’s Executive Council — the lieutenant governor, attorney general, secretary of state and state auditor — to extend it for 30 more days.

The Legislature could vote to overturn an order, but that would require a majority vote in each chamber. In Minnesota, the DFL controls the House and Republicans lead the Senate, making a vote to end an order a taller task.

Walz extended his initial order on Monday and the Executive Council quickly signed off. It now runs through May 13. He said he didn’t believe an extension was legally necessary but wrote that “given the importance of this decision, I have concluded that the prudent course is to limit subsequent extensions to 30-day increments.”

If Walz issues a future extension while the Legislature is not in session, he could be required to call lawmakers into a special session.

How was the authority granted in the first place?

The law first passed in 1951 was fashioned as a Cold War civil defense measure in case of “enemy attack.”

The peacetime emergency language didn’t come until 1979. According to limited media coverage at the time, the goal was to give the governor “power to declare an emergency when life and property are in danger and local governments cannot handle the situation.” There appeared to be little resistance to it.

Terror incidents and technological failures weren’t spelled out as qualifying incidents until 1999. The law last changed in 2005, when the Legislature gained its ability to overturn orders.

How have past governors used the power?

This is far from the first time — or even the first health crisis — to prompt a peacetime emergency.

But the power has more regularly been used without controversy to respond to tornadoes, floods, droughts or other natural disasters.

A Minnesota Legislative Reference Library database of executive orders since 1967 shows hundreds of emergency actions by governors. They haven’t always cited the specific peacetime emergency law, but dozens have listed it.

In 1999, then-Independence Party Gov. Jesse Ventura declared an emergency to ready the state for Y2K amid concerns that a change in the century would cause upheaval to computers worldwide. In 2007, the law was invoked by then-Republican Gov. Tim Pawlenty after the catastrophic collapse of the Interstate 35W bridge.

And in 2015, then-DFL Gov. Mark Dayton employed it to respond to the H5N2 avian influenza that had hit in 16 counties.

One big difference, in this case, is how Walz has stacked his orders. Since issuing that first one in March, he’s followed with almost three dozen others that all point back to his declaration of a peacetime emergency.

Will this situation inspire another change to the authority?

It will prompt at least a discussion.

In March, a DFL lawmaker introduced a bill to explicitly mention public health emergencies and set up a system to have those orders apply for up to three months with legislative consent.

House Minority Leader Kurt Daudt, R-Zimmerman, said the peacetime powers are worth a review next session.

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