Evers issued a stay-at-home order in March that closed schools and nonessential businesses. The closures battered the state economy, but Evers argued they were necessary to slow the virus’ spread. The order was supposed to lift April 24, but Health and Human Services Secretary Andrea Palm, an Evers appointee, extended it to May 26.
Republicans asked the Supreme Court to block the extension, arguing that Palm exceeded her authority because the extension amounted to an administrative rule, requiring legislative approval.
Evers’ administration countered that state law clearly gives the executive branch broad authority to quickly enact emergency measures to control communicable diseases. Attorney General Josh Kaul also noted that Evers’ order was similar to that in at least 42 other states and has saved many lives.
Nearly seven of 10 Wisconsin residents back Evers’ “safer at home” order, based on a Marquette University Law School poll released Tuesday, though that support was down from 86% in March.
Evers’ administration faced an uphill battle in convincing the court to keep the order in place. Conservative-leaning justices hold a 5-2 majority. Four conservative justices joined on the majority opinion. The fifth, Brian Hagedorn, joined with liberal justices Ann Walsh Bradley and Rebecca Dallet in dissent.
Roggensack wrote for the majority that the order amounts to an emergency rule that Palm can’t enact unilaterally, and creates criminal penalties that Palm has no authority to create.
“Rule-making exists precisely to ensure that kind of controlling, subjective judgement asserted by one unelected official, Palm, is not imposed in Wisconsin,” Roggensack wrote.
The Republican legislators had asked the court to let the rule remain in place for six days to give them time to work with Evers’ administration on an alternative plan. The court refused to grant the stay, saying the two sides have had weeks to come up with something.
The GOP so far has not offered any alternative plans. The state’s chamber of commerce has suggested allowing all businesses to open at once while compelling higher-risk establishments and operations to take increasingly strict mitigation measures such as requiring employees to use protective gear.
Soon after the court’s order, the Tavern League of Wisconsin posted news of the ruling on its website and said it meant businesses could open immediately.
The GOP move against Evers mirrors actions taken by Republican-controlled legislatures in other states, most notably against the Democratic governors in nearby “blue wall” states Michigan and Pennsylvania. All three are critical presidential battlegrounds in November.
Dallet wrote that the court’s decision will “undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price.”
Dallet also took aim at the potential delay set up by a rule-making process, writing: “A review of the tedious multi-step process required to enact an emergency rule illustrates why the Legislature authorized DHS to issue statewide orders to control contagion.”
The GOP has been working to weaken Evers’ powers since he ousted incumbent Republican Gov. Scott Walker in 2018.
During Walker’s final weeks in office, Republicans adopted a set of laws that prohibited Evers from ordering the attorney general to withdraw from lawsuits, a move designed to prevent the governor from pulling Wisconsin out of a multistate lawsuit challenging the Affordable Care Act. The state Supreme Court has upheld those laws.
The high court also backed Republicans over Evers in the GOP’s insistence on holding in-person voting for April’s presidential primary despite the health risks of the coronavirus.
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