Lawyer says suit seeks SaferAtHome extension to be implemented legally

The Brillion News

Posted on April 25, 2020 @ 12:45 p.m.

MILWAUKEE – The president and general counsel of the Wisconsin Institute of Law and Liberty (WILL) said that the extension of the public health emergency by the administration of Governor Tony Evers may have merit, but it was done illegally.

WILL is a public interest law firm and think tank that focuses on constitutional issues.

Rick Esenberg said state law limits a governor’s emergency order to a 60-day life, after which it must be approved by the state legislature to be extended.

He said that when Evers ordered his secretary-designed of Health Services, Andrea Palm, to issue the extension of the SaferAtHome order, it broke the law.

The legislature, in Republican hands, filed a suit with the state Supreme Court challenging the extension order.

Esenberg said the legislature feels that Palm cannot just issue a new rule under Chapter 252 without going through the formal administrative rule-making process – which requires legislative approval of any new rule.

Even emergency rules, Esenberg said, require legislative oversight – something that Evers and Palm did not even seek.

He said the order issued by Palm is unconstitutional because it gives the executive branch the power to make law – a power strictly reserved to the legislature un the state constitution.

The state Supreme Court has given all "friend of the court" parties until 4 p.m. on Wednesday, April 29, to file briefs outlining their arguments. The governor and secretary have until 4 p.m. on Tuesday, April 28, to file their brief in response to the legislature’s brief, which was filed last week.

At that point, the high court begins considering the case.

Esenberg said one part of the case hasn’t been reported in the media.

“This isn’t about whether we are going to lock down or open up Wisconsin tomorrow,” he said. “This case is about how we are going to decide what the next phase of this looks like. Is it going to be something which is unilaterally done by the governor? Or is it something that is going to be done together by the governor and the legislature?”

In short, the Republican legislature wants to have a say in state policy on COVID-19 together with the executive branch, and is arguing that’s what state law requires anyway.

The legislature, Esenberg said, asked the Supreme Court to give the governor and legislature a six-day window to come up with a plan for the next phase of the emergency order.

“I thought it was extremely unfortunate that the governor Tweeted that by filing this lawsuit, the legislature doesn’t care about Wisconsinites who have been infected with the COVID-19,” Esenberg said. “I think people that want everything to be opened up tomorrow are going to be probably disappointed in this process, because I don’t think that’s the position of the Republicans in the legislature. I think it’s fair to assume that they may want it to open up more, and quicker, than the governor does, but I don’t think you’re going to see competing proposals here.”

This is a brief version of a complete story that will appear in the April 30 print edition of The Brillion News.