New lawsuit against Walz claims mask mandate violates state constitution

The latest legal action against Minnesota Gov. Tim Walz, Attorney General Keith Ellison and Dakota County Attorney James Backstrom claims the state’s mask mandate violates the state constitution and conflicts with state statutes.

5 EYEWITNESS NEWS spoke with David Schultz, who is a constitutional law expert and professor at Hamline University. Schultz said it’s very unlikely a mask mandate would be considered unconstitutional.

“There is a body of law in Minnesota, and across the United States, that really goes back to the 19th century, that gives state and local government, but especially state government, broad powers to promote public health. These are laws that have upheld, for example, quarantine laws; they’ve upheld, for example, mandatory vaccinations,” Schultz said.

However, some disagree.

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“It’s not the place of government to impose those requirements on us when there is no lawful authority to do so,” said Doug Seaton, Upper Midwest Law Center President and attorney. “That’s something that is against our self-governing principles that we’ve had in the state of Minnesota since we were a part of the northwest territory. We can’t have our governor override the separation of powers and the limited government we have and trample on rights, whatever good the intentions might be.”

Seaton said the executive order doesn’t have medical merit.

“The science is very problematic on all of this, whether it helps or hurts has been disputed,” said Seaton.

While recommendations on masks have changed since the pandemic began, at an event in Alabama on Friday, U.S. Surgeon General Jerome Adams stressed their importance.

"Based on what we used to know about coronaviruses, most people were symptomatic. And that’s why we originally said, you didn’t have to wear a mask, unless you’re symptomatic," Adams said. "Well, what we learned in March and April is that this novel, this new coronavirus strain, 50 percent or more of people, especially young people, can spread the disease while being asymptomatic. That is why we now recommend that everyone wear a mask in public, asymptotic spread it really what’s driving the outbreak at this point."

Schultz said whether or not masks are proven to be effective doesn’t make a difference in legal terms.

“What’s going to happen here is that judges are experts in law, they’re not experts in science. And if the state can come back and say, ‘Our health commissioner believes that masks will reduce the transmission of the coronavirus,’ generally what the judge is going to say is, ‘It’s not my the call to make that decision — are they good or bad, are they effective or ineffective.’"

The Governor’s office is defending the mandate.

“The virus has forced the state to take drastic action to keep Minnesotans safe, but it’s action that is within the Governor’s authority,” said Teddy Tschann, Walz’s spokesperson. “It is also in line with federal guidance and similar to what other states are doing. All of the Governor’s actions have been grounded in the need to protect the health and safety of Minnesotans, and he will continue to work to find ways to get Minnesotans back to everyday life and to a place where they can safely gather in large groups.”

"The Governor has issued his executive orders to protect the health of all Minnesotans from the worst global pandemic in a century," added Minnesota Attorney General Keith Ellison. "He’s been responsive to circumstances and concerns as they emerge and has tailored his orders dynamically to meet them. My office and I review every executive order for its compliance with the law and state and federal constitutions. I stand behind the legality and constitutionality of this executive order. We will defend it strongly in court just as we have so far successfully defended others in court."

Seaton said there’s no harm in wearing a mask, if it’s an individual decision.