Wisconsin Republicans Challenge Extension of Stay-at-Home Order

A woman protests against the Wisconsin Supreme Court’s decision to proceed with the state’s primary election on April 7, 2020. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. (CN) — Making good on recent promises, the GOP-controlled Wisconsin Legislature asked the state’s highest court on Tuesday to block an emergency order extending the governor’s safer-at-home order until Memorial Day weekend.

The Legislature’s 80-page petition, filed directly with the 5-2 conservative majority Wisconsin Supreme Court, asks the justices to temporarily enjoin enforcement of an April 16 order from the Wisconsin Department of Health Services that extended the Badger State’s safer-at-home order shuttering nonessential businesses and largely keeping people in their homes from April 24 until May 26.

Democratic Governor Tony Evers directed the extension, spurring the latest legal battle between his administration and the state GOP.

The Republican lawmakers’ lawsuit over state emergency provisions to slow the spread of the coronavirus comes amid protests in Wisconsin and around the country against lockdown orders. The demonstrations have been led by groups resistant to government mandates further restricting citizens’ public mobility at the cost of inflicting more economic damage for the sake of containing the spread of the deadly pandemic convulsing civic life around the world.

The lawmakers’ petition takes direct aim at Andrea Palm, acting head of the Department of Health Services, opining that “an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers — unlimited in scope and indefinite in duration — over the people of Wisconsin.”

Palm was appointed by Evers in early 2019 and passed the muster of the Wisconsin Senate’s Health and Human Services Committee last August, but the Senate has yet to bring her nomination to its full chamber for a confirmation vote.

Legislators bringing the action, represented by Eric McLeod from the Madison office of nationwide firm Husch Blackwell and others, paint Palm’s extension of the safer-at-home order as a virtual death sentence for the Wisconsin economy implemented by a lone bureaucrat ordering sweeping decrees to shut down the state with arbitrary restrictions and without providing a firm expiration date.

They also take issue with the fact that it subjects rural counties in the state with few or no confirmed Covid-19 cases to the same onerous restrictions as urban areas like Madison and Milwaukee, the latter of which tallies roughly half of the Badger State’s 4,620 confirmed cases of the coronavirus, which includes at least 242 deaths statewide as of Tuesday.

The Republican legislators did not mince words in Tuesday’s filing, portending that “by the time the secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the order’s countless other downstream societal effects.” (Parentheses in original.)

“Our state will be in shambles,” the petition states.

In addition to Palm, Tuesday’s filing also names as defendants Department of Health Services Deputy Secretary Julie Willems Van Dijk and Assistant Deputy Secretary Nicole Safar.

Restrictions on commerce and personal liberty aside, the lawmakers challenging Palm’s emergency order also blasted her for circumventing state rulemaking requirements which would have put her order through the ringer of a joint legislative committee that reviews administrative rules, something the suit implies was done to intentionally exclude the Legislature from the process.

While the petition asks the state high court to block the extension of Wisconsin’s safer-at-home order, it also suggests that the court stay its injunction for six days to allow Palm and the Department of Health Services to come up with new rules to be vetted and approved by lawmakers.

Chad Oldfather, a professor at the Marquette University School of Law, said in an email Tuesday he could not reach an immediate conclusion about who should prevail in the suit, as “resolution of the case is going to turn on some fairly technical questions of statutory interpretation and administrative procedure.”

He outlined that Palm’s position is that Wisconsin statutes afford her broad authority in emergency situations, but it is the Legislature’s argument that she cannot exercise that authority without going through rulemaking processes that give lawmakers a chance to weigh in.

Oldfather pointed out that, legal analysis aside, the root of the problem is political.

“In a well-functioning state government there’d be plenty of coordination and cooperation between the leaders of the executive and legislative branches,” the professor said. “Here, of course, that relationship has been poisoned from the beginning.”

In a joint statement rallying behind Tuesday’s filing, Wisconsin Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, said “there’s immense frustration regarding the extension, as it goes beyond the executive branch’s statutory powers,” pointing to other Midwestern states like Ohio that have more confirmed cases of the coronavirus but still have set firm dates to begin a phased reopening earlier than Evers and Palm.

Evers reacted to the pandemic by declaring a public health emergency on March 12, followed by an initial safer-at-home order on March 24 that was originally set to expire a month later. Palm extending that order another four and a half weeks at the behest of Evers is what spurred Tuesday’s lawsuit.

Vos and Fitzgerald accused the Evers administration of denying the people a voice and said that “Wisconsinites deserve certainty, transparency, and a plan to end the constant stream of executive orders that are eroding both the economy and their liberty even as the state is clearly seeing a decline in Covid infections.”

Although unique to the moment in terms of combatting the Covid-19 pandemic, squabbles between Wisconsin’s GOP-controlled Legislature and Democratic governor are the rule rather than the exception in a state where partisan acrimony dominates political discourse, particularly when it comes to the governor’s executive authority.

The dysfunctional working relationship between the two sides has often left it up to the courts to resolve their differences of policy and approach. From the months-long fight over lame-duck laws passed to rein in Evers’ executive powers weeks after he took office to arguments in the Wisconsin Supreme Court over Evers’ veto powers, and to Tuesday’s petition, anything resembling a compromise will be up to the courts to offer.

Early April saw a separate flurry of litigation over how to carry out Wisconsin’s primary election, which ultimately saw in-person voting in the midst of the pandemic after Evers’ attempt to postpone the election was blocked by the Wisconsin Supreme Court and a federal judge’s extension to absentee voting was blocked by the U.S. Supreme Court.

Reports surfaced Tuesday that Milwaukee health officials are saying at least seven people contracted the coronavirus while voting in Wisconsin’s April 7 primary.

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