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Why the Minnesota Legislature’s recent efforts to respond to the pandemic aren’t really about responding to the pandemic

The latest bills offered in the GOP-controlled Senate and DFL-controlled House are stand-ins for a continuing argument over the governor’s emergency powers. 

The only official action was a Senate debate on a resolution to remove Gov. Tim Walz’s emergency declaration.
MinnPost photo by Peter Callaghan
Reigning in Gov. Tim Walz is at the top of the Senate GOP's agenda.
Two hearings held on the same day last week offered plenty of evidence that the Minnesota Senate and House aren’t working together on the response to the COVID-19 pandemic.

The Senate, controlled by Republicans, held a hearing on two bills: one to let businesses open without restrictions if they have safety plans in place, another to give either chamber of the Legislature veto power over future declarations of peacetime emergencies. It is those declarations that have given Gov. Tim Walz the legal authority to impose emergency orders to close business closures or restrict school re-openings.

Meanwhile, the DFL-controlled House held a hearing about making one of those emergency orders — a statewide indoor mask mandate — a state law. The order is one of several Walz has said must be passed by the Legislature before he would consider a ‘wind-down’ of his emergency powers.

Each of the measures could pass their respective side of the Legislature. Whether they could pass the other chamber is questionable. And even if the House passed some of the GOP-backed efforts to loosen pandemic restrictions — a move likely to be more popular in the Greater Minnesota districts still represented by DFLers — the margin would not be enough to overcome a Walz veto.

Instead of differing responses to addressing the pandemic, then, the bills are better understood as stand-ins for something else: the continuing partisan argument over emergency powers and the governor’s executive orders permitted under that authority.

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An agenda aimed at reining-in Walz

Reining-in Walz is at the top of the Senate GOP’s agenda, along with a two-year operating budget and — in what’s perhaps a bit of wishful thinking — a plan to redraw congressional and legislative districts. It isn’t happenstance that five of the first 10 bills introduced in the Senate related to use of emergency powers, including: 

  • Senate File 1, which would let businesses open regardless of executive orders as long as they have a safety plan meeting state guidelines.
  • Senate File 2, a bill that would remove a governor’s authority to close schools in a peacetime emergency.
  • Senate File 4, which would alter the current authority for the Legislature to rescind peacetime emergencies. 
  • Senate File 6, a measure to authorize the Legislature to terminate individual executive orders.

Other bills — including one to cancel any fines or license suspensions of bars and restaurants that defied closure orders and allow businesses that were closed to file lost-income claims against the state — are also aimed at curtailing Walz’s emergency powers. 

State Sen. David Osmek
State Sen. David Osmek
Sen. David Osmek, R-Mound, told the Senate State Government Committee that his bill to change the authority for rescinding peacetime emergencies, SF 4, is needed to restore balance to the three branches of government. His bill would essentially flip the authority around peacetime states of emergencies by automatically rescinding them unless both houses vote to continue them. Now, unless both houses vote to rescind the declaration, it remains in place.

“I think we will all recognize that back in March the governor did exercise his emergency orders, and I think rightfully so,” Osmek said. “But his orders have become less and less about providing for Minnesotans and more about how the executive branch is wrestling and taking more and more control.”

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Osmek said that by sharing power on emergency actions, Walz could share any public anger with them as well. “I would think the executive branch would support this because it puts us on the hook for what is happening in Minnesota under current law,” he said. 

But that presumes Senate Republicans would ever support extending the emergency powers or many of the executive orders Walz has signed since March. That was the point made by Melissa Hysing, legislative director of the state AFL-CIO, who said the effect of Osmek’s bill would be to rescind worker protections against unsafe workplaces and the mask mandate.

When Osmek said Hysing lacked a crystal ball and therefore couldn’t know whether the Senate might have approved those orders by legislation, she pointed to the lack of such action over the last 10 months. “The Legislature, as it stands, has not passed any legislation to reduce transmission of COVID or to protect workers in the workplace over the course of the pandemic,” Hysing said.

The DFL strategy

The House bill regarding Walz’s statewide mask mandate is part of a different strategy, one tipped by House Speaker Melissa Hortman before the session and echoed by a Walz letter to legislative leaders at the beginning of January

House Speaker Melissa Hortman
MinnPost photo by Peter Callaghan
House Speaker Melissa Hortman
It goes something like this: Republicans say they need the Legislature to be part of the response to the pandemic, but are those shared powers meant to actually help respond — or are they meant to block Walz’s response?

As a test, DFLers are pushing to put various executive orders signed by Walz — such as a statewide indoor mask mandate, workplace protections and an eviction moratorium — into state law. “If members want to be part of the response to COVID-19, they should support this bill,” Rep. Sydney Jordan, DFL-Minneapolis, said of the bill she authored, HF 604, to impose a statewide mask mandate. “I want the Legislature to be part of the response, and I will work with all of you to craft public policy to make life better for Minnesotans.”

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House DFLers have created a special committee to review Walz executive orders and to consider legislation to modify the emergency powers law. GOP members, however, are skeptical of the effort. During debate on a motion that would force a vote on a House version of the Senate bill on school closures, Rep. Barbara Haley, R-Red Wing, said: “I don’t have any confidence that bills will ever leave that committee.”

For her part, Hortman, DFL-Brooklyn Park, said via text message Thursday that she doesn’t think Republicans are interested in passing bills to respond to the pandemic. “Republicans have failed to show a willingness to take the pandemic seriously, still, and to be serious about bipartisan collaboration,” she wrote. “Sometimes it seems Republicans would rather the governor make all the decisions and then criticize those.”

And though there is a bill to institute a mask mandate, Hortman said it is the type of issue that should be done by executive order as “the information changes quickly and the policy should be tailored to the most recent information.” 

Gov. Tim Walz
REUTERS/Nick Pfosi
Gov. Tim Walz
That was illustrated in the House Health Finance and Policy Committee meeting Tuesday when members debated how to trigger an end to any mandate: Should it be when the state has reached an 80 percent infection and vaccination rate, as Republicans suggested? Or when the federal government declares that face coverings are no longer recommended to slow transmission of the virus?

As much as Jordan’s mask bill is meant to force Republicans to act on their request to be decision-makers, the bill might never come to a vote. House Health Finance and Policy Committee Chair Tina Liebling, DFL-Rochester, said it likely will be “laid over for possible inclusion” in another bill. That’s legislative code for bills that might end up in the massive omnibus finance and policy bills.

But now that the DFLers have made their point, it could also disappear. Mask mandates aren’t popular in parts of Greater Minnesota where some DFLers won close elections, and caucus leadership may not want to force all DFL House members to take a vote on the issue. An example of those metro-Greater Minnesota tensions could be seen in bill drafts offered by Rep. Julie Sandstede, a DFLer from Hibbing who won reelection in 2020 by 30 votes: One measure would lift restrictions on Greater Minnesota bars and restaurants; another would, like the Osmek Senate bill, change how emergency declarations are ratified

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What about the state of emergency itself?

One thing not yet at issue in this session is the emergency declaration itself. But that will change this week after Walz again extended the peacetime emergency declaration for another 30 days. 

The has again triggered a provision of state law that allows House and Senate to rescind the order, something done by the GOP-controlled Senate seven times last year but never taken up by the DFL-controlled House. If the order to rescind again isn’t taken up and passed by both chambers, the state will have been under a state of emergency for a year.

Any rescind resolution that comes to the House from the Senate and is introduced by Republicans would go to a committee — unless the House votes to suspend its rules. And if House GOP leaders use that maneuver to try to force a rescind order to the floor, the DFL can claim that any ‘no’ votes aren’t a judgment on emergency powers themselves but simply a stand against suspending the rules of the House. That strategy was used successfully by Hortman several times over the summer.

Still, Hortman said she thinks she can keep the House from voting to rescind, even with a reduced majority after the 2020 election. “We support the governor,” she wrote. “His science and public-health-based response has saved lives.”