Minnesota executive orders, emergency powers, and the 2026 Boundary Waters mining dispute
Presidents have long used executive orders to advance policy when Congress is unwilling or unable to act. Governors do the same thing. Yet gubernatorial executive orders receive considerably less attention, even though they can have significant consequences for public policy. Minnesota Governor Tim Walz’s August 2026 executive order restricting nonferrous mining near the Boundary Waters Canoe Area Wilderness provides a good opportunity to ask a basic question: How much power does a Minnesota governor actually have to govern by executive order?
The starting point is the Minnesota Constitution. Article V vests the state’s executive power in the governor and requires the governor to take care that the laws be faithfully executed. But the Constitution does not give the governor a general power to make law. Minnesota also has an explicit separation-of-powers provision in Article III. Thus, a Minnesota governor’s executive order must ultimately rest on constitutional authority or authority delegated by the Legislature.
Minnesota Statutes § 4.035 provides the general framework for executive orders. It defines an executive order as a written statement or order issued pursuant to constitutional or statutory authority. Ordinary executive orders generally become effective 15 days after publication in the State Register and filing with the secretary of state. Emergency executive orders can take effect immediately.
This distinction matters when asking whether an executive order has the force of law. There is no simple rule that every gubernatorial executive order is equivalent to a statute. An ordinary executive order can bind executive-branch agencies and officials when the governor is acting within authority already assigned to the executive branch. But an executive order cannot simply repeal a statute or create powers that the Legislature never delegated.
Emergency orders are different. Minnesota Statutes § 12.32 provides that qualifying orders and rules under the Minnesota Emergency Management Act have the full force and effect of law during an emergency. The emergency framework in Minnesota Statutes § 12.31 also imposes durational and legislative checks on peacetime emergencies.
Executive orders are also less durable than statutes. Under § 4.035, unless a statute or the order itself provides an earlier expiration date, an executive order expires 90 days after the governor who issued it leaves office. A subsequent governor can rescind or replace executive policies within executive authority, and the Legislature can alter the statutory authority on which an order depends. Courts may also invalidate an order that exceeds constitutional or statutory authority.
Executive orders are hardly unusual in Minnesota. The Minnesota Legislative Reference Library executive-order archive lists more than 1,350 orders since 1967. Its Walz executive-order archive lists more than 250 orders during his administration, a total heavily influenced by emergency orders issued during the COVID-19 period.
The Pandemic and Emergency Executive Power
COVID-19 demonstrated how powerful Minnesota executive orders can become during an emergency. Walz declared a peacetime emergency in March 2020 and subsequently issued orders affecting businesses, schools, gatherings, evictions, movement, and face coverings. Those powers were grounded not simply in his office as governor but in authority the Legislature had previously delegated through the Emergency Management Act.
The Minnesota Supreme Court addressed that delegation in Snell v. Walz. In 2024, the court held that the Emergency Management Act authorized the governor to declare a peacetime emergency in response to the COVID-19 pandemic and rejected the claim that the statute constituted an unconstitutional delegation of legislative power. The case underscores an important principle: extraordinary gubernatorial power during an emergency still depends upon legislative authorization and remains subject to statutory checks.
The Boundary Waters Order Tests a Different Power
Walz’s August 2026 Boundary Waters order raises a different and potentially more difficult issue. Unlike the COVID orders, it is not principally an exercise of emergency authority. Instead, the governor is directing executive agencies in how they exercise powers the Legislature has already assigned to them. Current accounts of the order include an Associated Press report on the 2026 Boundary Waters order and an Axios report on the 2026 Boundary Waters order.
The central legal question is deceptively simple: Did the Legislature give state officials discretion to withhold the relevant permits and leases, or did it impose duties that the governor cannot override?
Consider mining permits. Minnesota Statutes § 93.481 establishes Minnesota’s permit-to-mine system for metallic minerals. The statutory scheme requires mining operations to obtain a permit from the commissioner and prescribes an application and decision process. This could become important in litigation because there is a legal difference between directing the Department of Natural Resources to exercise available discretion aggressively in favor of environmental protection and directing the agency not to perform a statutory duty at all.
Walz has substantial arguments on the other side. Minnesota Statutes § 93.44 expressly declares environmental protection, preservation of natural resources, reclamation, and control of adverse environmental effects to be state policies. But the same provision also speaks of promoting the orderly development of mining, encouraging good mining practices, and recognizing mining’s beneficial aspects. The statute therefore embodies competing objectives rather than a single command to prohibit mining.
The leasing question may give the executive branch greater discretion. Minnesota Statutes § 93.25 states that the commissioner “may issue leases” to prospect for and mine minerals on state lands, and nonferrous metallic mineral leases require Executive Council approval. The word “may,” combined with the approval requirement, appears to leave more executive discretion over whether the state enters new mineral leases than exists where a statute requires an agency to process and decide a completed application.
This distinction could become decisive. A court might conclude that the governor can direct officials not to undertake discretionary actions, such as entering new state mineral leases, while also concluding that he cannot order an agency to disregard a mandatory statutory process. An executive order therefore need not be entirely valid or entirely invalid. Different provisions can stand or fall depending upon the statutory authority underlying each one.
The order also cannot automatically extinguish existing contractual or property rights. New leases, existing leases, permit applications, and federal approvals present different legal questions. Any effort to terminate vested rights could raise issues of administrative law, contract law, property rights, and constitutional protections beyond the governor’s general executive-order authority.
The separation-of-powers issue can be stated starkly. Suppose the Legislature establishes a permitting system and identifies the standards an agency must apply. If a governor subsequently announces that no permits of a particular kind will be considered in a particular geographic area, is the governor merely supervising the executive branch, or has the governor effectively amended the statute without legislative approval?
That is likely the strongest legal argument against the Boundary Waters order. Mining interests can argue that Walz is not merely administering existing law but establishing a new substantive policy that the Legislature itself has not enacted. Walz’s response is that the Legislature deliberately delegated substantial authority over state lands, mineral leasing, environmental protection, and mining regulation to executive agencies, and that a governor ordinarily may supervise those agencies and establish administration-wide priorities within statutory boundaries.
The broader the discretion the Legislature previously delegated to Minnesota’s executive agencies, the stronger Walz’s executive order becomes. The more specifically Minnesota statutes require agencies to perform particular duties or decide applications according to legislatively prescribed criteria, the weaker the governor’s claim becomes.
There is also a federalism dimension. Federal action allowing mineral development on federal lands does not necessarily eliminate Minnesota’s independent authority over state permits, environmental regulation, or state-owned mineral interests. Federal permission therefore does not automatically supply every state authorization a mining project may require.
This makes the Boundary Waters dispute different from the pandemic litigation. In Snell, the central issue was whether the Legislature had constitutionally delegated sweeping emergency authority to the governor. Here the question is narrower but potentially more complicated: how far can a governor go in directing administrative agencies when the Legislature has already constructed a detailed regulatory system?
Ultimately, the controversy illustrates both the usefulness and the constitutional limits of executive orders. A Minnesota governor can supervise the executive branch, establish administrative priorities, and exercise discretion delegated by statute. But the governor cannot use an executive order to rewrite a statute or substitute gubernatorial policy for a decision the Legislature has required an agency to make.
Walz’s Boundary Waters order therefore may provide an unusually good test of Minnesota gubernatorial power. The most important legal question is not whether protecting the Boundary Waters from copper-nickel mining is good policy or whether Minnesota should permit more mining. It is more fundamental: Who gets to make that decision, the Legislature through law, administrative agencies exercising delegated authority, or the governor through executive direction?
