Bar Buzz: Walz powers challenge might go to Supreme Court

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Having struck out in state court, 13 lawmakers and a small business group are heading right to the top in their effort to unplug the governor from his COVID-19 emergency powers.

A baker’s dozen of GOP legislators and the Free Minnesota Small Business Coalition, along with several individual small employers, have tried since mid-July to legally wrestle the powers—which they deem unconstitutional—out of Gov. Tim Walz’s hands.

However, Ramsey County District Court Judge Thomas A. Gilligan, Jr., in a Sept. 1 ruling, tossed out their lawsuit. Undeterred, they’ve bypassed the Court of Appeals and say they will seek expedited review from the state Supreme Court.

Their petition says that justices should decide two questions.

First, plaintiff’s assert, the court should determine whether Gov. Tim Walz’s COVID-19 executive orders under Minn. Stat. § 12.31 violate the non-delegation doctrine, because the law lacks any “less restrictive means” or similar limitations.

Second, the group says, the court should determine whether provisions in that statute create an unconstitutional “non-severable legislative veto.”

There is some irony here: A few lawmakers named as plaintiffs have introduced resolutions hoping to use that very law to legislatively strip the governor of his powers. Nonetheless, the group thinks it’s unconstitutional and should be so declared by the Supreme Court.

“The aim of our lawsuit is to stop the unconstitutional power grab that has taken place,” said Rep. Tim Miller, R-Prinsburg, said in a press release Wednesday. “People in my district who once supported Governor Walz now are weary of his overreaching into their lives.”

Besides losing in District Court, the small businesses group, acting alone earlier this year, failed in late May to convince the Minnesota Court of Appeals to issue a declaratory judgment invalidating four Walz executive orders.

As of this writing, the Supreme Court petition, while distributed to the press, had yet to appear as a filing on the Minnesota Appellate Courts’ online case management system.

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