In the North Star State, a group of business owners calling itself Free Minnesota has declared that Governor Tim Walz’s shutdown orders related to the novel coronavirus have gone too far. Not only are the regulations negatively impacting the economy, but the group and their attorneys claim that the orders are unconstitutional and a vast overreach of executive authority. But rather than attempting to get their point across by burning down a few cities, they’ve gone to court. And now a court has agreed to hear their case and a judge will entertain the suit next month. (From the Free Minnesota website)

Late May, a coalition of small businesses calling itself Free Minnesota and a group of legislators who make up the New House Republican Caucus filed suit to end Governor Walz’s executive orders related to his declared “peacetime emergency.” Judge Thomas Gilligan was assigned to the case.

Although the petitioners requested expedited review, the attorney general’s office argued for more time and Judge Gilligan granted it. A hearing on the merits of the case has been set for July 16th at 10:00 AM in the Ramsey County Courthouse.

The lawsuit contends that governor’s executive orders violate Minnesota Constitution and the judicially established non-delegation doctrine, because the executive branch is not empowered to make laws.

The lockdown orders given by any number of governors around the country have produced a variety of similar lawsuits, but this one has a bit of a twist that makes it interesting. Rather than challenging specific details of the orders or claiming that they have “gone too far,” while conceding the executive branch’s right to act, Free Minnesota is claiming that none of Walz’s executive orders are constitutional.

There are laws on the books in Minnesota that grant the Governor certain powers to issue peacetime emergency executive orders during a state of emergency. But the group’s attorney, Erick Kaardal, argues that the statutes authorizing peacetime emergency executive orders are themselves unconstitutional. The basis for this claim is a provision in the state constitution declaring that “pure legislative power cannot be delegated to or exercised by the executive branch.”

Going one step further, Free Minnesota argues that even if the law were constitutional it wouldn’t apply in this situation. The law speaks to powers being exercised during natural disasters such as tornadoes and wildfires. These are finite events with a measurable beginning and end. They point out that the law contains no provision for a threat to public health being such a condition. And since the virus may be with us forever, the Governor could, in theory, keep asserting this privilege indefinitely.

It’s an interesting approach, though I’m not sure how far they will get. As I’ve said here more times than I can count, the courts have generally tended to side with the executive branch during a declared emergency condition, provided they don’t push too far or for too long. Also, I can see the state arguing that the definition of “pure legislative power” might not be in play here, since any action taken solely by the executive branch isn’t a legislative power by definition.

Further, the Minnesota law establishing those powers may speak to natural disasters and provide examples related to weather, but it’s hard to deny that the pandemic is both a disaster and natural in origin. In that light, the courts would likely have some wiggle room to say that the Governor is able to take these actions, distasteful though they may be. It’s also possible that there won’t be a finding. The judge granted the state a delay until July 16th. If the orders are lifted by then, the judge might take the easy way out and simply declare that the lawsuit is moot at that point.

I think what I find most interesting about this case is the possibility that the Free Minnesota Coalition might actually prevail. If they do and the finding is challenged, sending it all the way to the Supreme Court of the United States, the justices would have a hot potato in their collective laps indeed. Ruling such executive powers unconstitutional would hamstring governors all over the country in the event of an emergency. But based on the history of how our courts have handled such questions, I sincerely doubt they would make any sort of sweeping ruling like that.