The Wisconsin Supreme Court heard oral arguments this morning in a case brought by Republican legislative leaders to overturn the extension of Wisconsin’s safer at home order.
Attorneys for the Republican legislature say the order’s extension is too broad, and circumvents the rule-making process of the legislature.
In March, Department of Health Services Secretary-Designee Andrea Palm issued the stay-at-home order at the direction of Governor Evers. That order would have lasted until the beginning of May.
On April 16, Secretary Designee Palm issued an extension of the order until the end of May, also at the direction of Governor Tony Evers. And the extension of the order prompted the legal challenge from Republican lawmakers.
Ryan Walsh, the attorney representing the legislature in the case, says that the decision is too sweeping to be made without the input of the legislature. He called on the court to put the issue back in the hands of the legislature.
“The ramifications, your honor, are that the governor and his agencies-which derive their powers from the legislature-would need to sit down with the legislative branch to come up with a bipartisan, sensible response to this pandemic going forward,” said Walsh.
Evers said at the time the order, which has remained in effect while the Court decides the case, was necessary to keep Wisconsinites safe during the pandemic.
Assistant attorney general Colin Roth, who represented the Evers administration, says the order is in the state’s power. He says the legislature can amend the state’s power, but it would be unwise to do so right now.
“I think if the legislature decides that, after it sees this crisis passed, that more limits need to be placed on DHS’ authority in the statutes, it has every right to do so and I’m sure it will,” said Roth.
“But in the midst of this crisis, to toy with the statutes that the legislature has passed, I think you can tell from the concession that the order should be stayed, that the legislature has made. You understand exactly why they made that concession. Because people will die if this order is enjoined with nothing to replace it. That is exactly what will happen.”
Wisconsin state law says that, in an emergency, the governor has the right to declare a state of emergency for only 60 days. That time period would have ended on May 1st, at which point the governor’s stay-at-home order would have ended. According to legal expert Howard Schweber, a professor at the University of Wisconsin-Madison, that’s enough for the Court to rule against the extension.
“In order to extend for the emergency beyond 60 days, according to the statute, he has to get approval from both houses of the legislature,” says Schweber.
“Governor Evers extended his emergency order without getting that approval on the theory that he was effectively ordering a new emergency, which is a very weak argument. Everything else, including politics aside, I think the legislature clearly should win this case on the statutory question.”
Among the slew of non-party briefs also filed in the case, a brief from seventeen legal scholars argues that the legislature “seeks to rewrite a duly enacted statute through litigation and claw back powers that it properly vested in Wisconsin’s Department of Health Services.”
Yet in its questioning, the Court’s 5-2 conservative majority appeared to side with the legislature, against the stay-at-home order.
Justice Rebecca Bradley, a conservative, compared the stay-at-home order to the internment of Japanese citizens during World War 2.
“One of the rationales that we’re hearing justifying the Secretary’s order in this case is that, well, it’s a pandemic and there isn’t enough time to promulgate a rule and have the legislature involved with determining the details of the scope of the secretary’s authority,” said Bradley.
“I’ll direct your attention to another time in history in the Korematsu decision, where the Court said the need for action was great, and time was short, and that justified-and I’m quoting-assembling together and placing under guard all those of Japanese ancestry in assembly centers during World War Two. Could the secretary, under this broad delegation of legislative power or legislative-like power order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?”
The Court met this afternoon to discuss the case. It’s not known when they will release their decision, but since it is time sensitive, a decision will likely come soon.
If the Court decides to strike down the order, Governor Evers and Republican lawmakers would have to come to an agreement on a new order.
If that doesn’t happen, each Wisconsin county may have to decide on their own restrictions.