An order last week from the Evers administration limits indoor public gatherings to a quarter of their capacity. The order was created to curb recent spikes of COVID-19 in Wisconsin, which is, by population, currently a national hotspot for the coronavirus.
But yesterday, a committee of the legislature pushed back on the order, requiring the Department of Health Services to go through an official rulemaking procedure in the next 30 days.
Members of the state’s Joint Committee for Review of Administrative Rules debated whether the meeting was about the law, or political theatre.
At the crux of the debate was whether to treat the emergency order as an order, or a rule, which would require the DHS to go through an official rulemaking process with the state legislature.
Democrats on the committee were incensed, saying Republicans on the committee continue to use delaying tactics during the pandemic. State Senator Chris Larsen, a Democrat from Milwaukee, says the legislature has not acted on the pandemic.
“The only plan is to obfuscate, to get in the way and to have an academic discussion about what is proper and what isn’t proper in the face of an emergency, and try and block the only folks who are trying to act responsibly to try and limit infections, limit death in our state,” Larson said.
A recent review from WisPolitics finds that Wisconsin has had the least-active full-time legislature in the nation during the pandemic. The Assembly and Senate have each met once, in April, to pass a coronavirus relief bill.
Republicans on the committee accused Democrats of missing the point. Committee Co-chair Stephen Nass, a Republican from Whitewater, defended their decision to hold the department to its procedural obligations.
“This is not a debate on COVID, it’s a debate on whether DHS is following the law. I would argue they are not following the law, they are breaking the law… You got to follow the law. The DHS secretary designee is running a rogue agency,” said Nass.
In less than an hour, the decision to deem the order as, instead, a “rule” passed in a party line vote, with the 6 republicans voting yes and the 4 democrats voting no.
Looming over this discussion is the Wisconsin Supreme Court’s decision from May, striking down Governor Evers’ safer-at-home emergency order. That decision also hinged on whether the self-proclaimed order was an order or a rule, ultimately finding it to be a rule — and requiring it to go through an official rulemaking process.
In May, after the state’s high court struck down safer-at-home, Governor Evers and his administration withdrew their application to start the rulemaking process, saying it wasn’t worth the time to try and work with the Republican-controlled legislature.
“The Republicans made it very clear that they don’t believe a statewide approach is the right way to go.. They also don’t believe restrictions are advisable. So that kind of narrows it down, and they rejected our scope statement. Given that it just doesn’t make any sense doing something we know isn’t going to be successful,” said the Governor in May.
The Department of Health Services has thirty days to comply with the order, and begin the rulemaking process, including a public hearing and public notices. The legislature’s Joint Committee has the ultimate power to approve or deny the rule or parts of it.
That’s if it’s not challenged in court — which is where Senator Larson predicts it may go.
“If you don’t think that’s allowed, then it can go to the courts. That seems to be the preferred method of the legislature these days, where more lawsuits have been filed then legislation introduced in the last six months. So it may just go that way,” said Larson.