Empower Wisconsin | April 30, 2020
By M.D. Kittle
MADISON —Doubling down on its constitutionally suspect lockdown orders, the Evers administration and the liberal-led state Department of Justice are asking the Wisconsin Supreme Court to reject a lawsuit challenging the Democratic governor’s power grab.
The administration’s brief, filed by the previously invisible Attorney General Josh Kaul, is a fractured defense of executive overreach — as arrogant as it is petulant.
Kaul, who has been quick to accuse President Donald Trump of abuse of power, refuses to see the liberties fellow Democrat Evers has taken with Wisconsinites’ liberties during the COVID-19 outbreak. The attorney general, like the governor, believes a health crisis trumps the state and U.S. constitutions.
He argues for the “broad and well-established authority granted to the executive branch to respond to public health emergencies.”
“(The Republican-led Legislature) posit a fundamental reworking of how Wisconsin responds to a pandemic—in the midst of one—that is incompatible with the statutes, constitutional principles, and on-the-ground reality,” the motion argues.
Kaul fails to note that such powers are neither indefinite nor complete under Wisconsin law and, more so, the constitution.
When state Department of Health Services Secretary-designee Andrea Palm extended by a month Evers’ original stay-at-home edict, she surpassed the authority granted under statute, the Republican-led Legislature claims in its original petition, filed earlier this month. The Legislature asked the Supreme Court to issue an injunction against Palm’s longer lockdown, but it would allow a six-day stay so that DHS can work with lawmakers to come up with a reasonable plan to re-open Wisconsin.
On Tuesday, the Wisconsin Institute of Law & Liberty filed an amicus, or friend-of-the-court, brief on behalf of the Independent Business Association of Wisconsin and two small businesses — a Pleasant Prairie auto repair shop and a Grafton hair salon. The devastation caused by the lockdown orders have already surpassed the peak job losses of the Great Recession.
“Governor Evers and his administration have taken an overly expansive approach to how power and decision-making is made in Wisconsin,” said Rick Esenberg, WILL’s president and general counsel. “It is vital that the Court reestablishes the proper balance to the separation of powers and prohibit rule of the state by the executive branch without input from the people and oversight by the Legislature.”
Wisconsin’s unemployment rate has surged to 18 percent, according to an analysis by the Center for Research on the Wisconsin Economy (CROWE).
In his brief, Kaul argues the Evers administration knows best. And he suggests critics better play ball or more restrictive lockdowns could be in the offing.
“The task now is to get sufficiently ahead of COVID-19 so that Wisconsinites’ sacrifices are not for nothing, and that less restrictive containment strategies can be deployed: exactly what the Badger Bounce Back plan proposes,” the brief states, referring to Evers’ controversial plan to slowly dial back his broad, stay-at-home order.
Kaul points to early public support for the emergency lockdowns. That support has wained in recent weeks, however, particularly after Palm extended the order until May 26, attaching COVID-19 case-reduction goals that very likely could drag on the shutdown.
Evers’ office was flooded with calls and emails immediately after he announced the extension, “accusing him of destroying the state’s economy, begging him to let business re-open and warning that voters will punish him,” according to an Associated Press review.
“One woman pleaded with Evers to let her visit her husband in hospice before he dies of brain cancer. Other people demanded he let youth baseball resume and allow hair salons to re-open. A hairdresser wrote that Evers’ hair looks so good on TV he must be using a stylist in violation of his own order,” AP reported.
Those pleas have mostly fallen on deaf ears. Evers has ordered state parks, golf courses, and some “nonessential” service businesses can re-open. Many thousands more wait and worry whether they’ll survive the administration’s one-size-fits-all pandemic response.
As Wisconsin Spotlight reported this week, Wisconsin Manufacturers & Commerce has proposed a Back to Business plan, a comprehensive strategy to safely restart Wisconsin’s full economy. So far, it appears to be collecting dust on the governor’s desk.