I have previously blogged (here and here) about the constitutional issues with the statute authorizing the governor to declare peacetime emergencies. Minn. Stat. § 12.231. The best characterization of the legislature’s role under the statute is that it is constitutionally suspect. The legislative authority to terminate declarations longer than 30 days likely either gives the legislature executive powers or allows it to de facto enact legislation while circumventing the governor’s veto power. By compelling the governor to call special sessions, the statute also may unconstitutionally impinge on gubernatorial discretion to make those decisions. This is all speculation on my part since I know of no Minnesota court decisions addressing these issues.
COVID-19 and Governor Walz’s declaration and executive orders have focused attention on the workings of this previously obscure statute. Naturally, the legislature considered changes to it based on that experience. The Senate passed a bill, S.F. No. 4519, that would have changed the legislature’s procedural role. The House did not take up the bill, so it died when the regular session ended.
So, would S.F. No. 4519’s changes have addressed the separation of powers issues with the current statute? On a strictly technical basis probably not, but as a practical matter it would. The bill prohibited the governor from extending a declaration beyond 30 days without each house of the legislature approving the extension by a majority vote. Technically, the legislature would be ratifying an executive action – not something exactly envisioned by the separation of powers. But the ratification process is almost the same as enacting the declaration as a law, since the governor’s declaration could be characterized as signing it into law or allowing it to become law without his signature. In this way it is similar to the procedure used for approving state employee contracts, also an odd hybrid arrangement of executive power shared with the legislature.
The current statutory procedure allows the legislature, if each house approves by majority vote, to terminate declarations of more than 30 days. That means deadlocks or ties allow the declaration to continue. By contrast, S.F. No. 4519, is about the equivalent of legislative enactment of declarations longer than 30 days.
It’s hard to know exactly what would have happened if S.F. No. 4519’s rules had applied during the current crisis. (As an aside, given the Senate vote it seems unlikely that this approach will find much favor in the DFL-controlled House in a special session, if it is revived. It looked to me like only one DFL senator voted for it.) It certainly seems possible that something more like the situation in Wisconsin (absent the need for a lawsuit) would have occurred after the end of the first 30-day period of Governor Walz’s declaration: that is, state-imposed restrictions on businesses and private behavior would have ended or been much more severely curtailed.
Requiring legislation to address an ongoing health crisis is likely to be more cumbersome and difficult, especially given a partisan split in control but even in its absence, compared to the governor acting alone. I would expect, based on my legislative experience, that the response would involve more horse-trading and give-and-take. The ability to make calibrated changes quickly in response to changing conditions would be hampered. Decisions would be more “political”- in particular, I would expect more exceptions and carve-outs needed to gain assent of a few or small groups of key legislators and/or to address local situations. That could be bad or good, depending upon how well you think the current arrangement is working.
As a final note, the bill includes a provision that addresses the possibility that a governor would evade the 30-day duration limit by allowing declarations to lapse and, then, after a short gap declaring a new emergency but to really address the old emergency. This suggests to me a growing perception at least by some senators of the potential for gaming playing or bad faith by the administration. Not a good sign.
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