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Republicans: Evers’ health order is unenforceable

Empower Wisconsin | Oct. 8, 2020

By M.D. Kittle 

MADISON — Gov. Tony Evers’ latest health order is “unenforceable,” wouldn’t stand a court challenge and needs to go through the Legislature’s rule-making process before implementation, GOP leaders said Wednesday. 

A day before Evers’ Emergency Order #3 was set to go into effect, Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Scott Fitzgerald (R-Juneau) released a Legislative Reference Bureau memo noting the legal problems the edict would face. 

The LRB memo points to the Wisconsin Supreme Court ruling in May. That decision found the Evers administration extended statewide lockdown to be unenforceable because it did not have the Legislature’s approval. State law gives the governor the authority to issue emergency health orders for 60 days. After the order’s expiration, the Health Department must promulgate an emergency rule, to be reviewed by the Legislature’s rules committee. 

“A court following the reasoning of the (Supreme Court ruling) would likely require Emergency Order #3 … to be promulgated as a rule,” the memo states. 

Since Republicans control the joint rules committee, it’s unlikely Evers’ broad emergency rule would survive. 

“With respect to Emergency Order #3, the governor and secretary-designee may have good intentions but they’re disregarding the law as set forth in the state Supreme Court ruling, Legislature v. Palm,” Vos said in a statement. “We are confident that if challenged, a Wisconsin judge would find this order invalid as an unpromulgated rule. We are asking Secretary-Designee Palm to submit an emergency rule immediately to the Joint Committee for Review of Administrative Rules as required by law.”

State Sen. Steve Nass (R-Whitewater), co-chairman of the rules committee, said he will be requesting an executive session to pass a motion requiring the DHS craft an emergency administrative rule on public gathering limits. DHS would have to comply within 30 days. Presumably the agency would move much faster. 

As of Wednesday evening, it appeared Team Evers wasn’t going to move at all. Evers attorney Ryan Nilsestuen told reporters Tuesday that the Supreme Court ruling had no bearing on Evers’ powers to issue new emergency orders. A St. Croix County judge is deliberating on that point this week, with an expected ruling soon. 

The unanswered questions remained: does the latest legislative twist stop Evers from drastically limiting liberty? Do businesses have to follow an “unenforceable” emergency order? 

Vos encouraged “cooperation and collaboration,” requesting a meeting with the governor as soon as possible to “discuss answers to deal with the virus,” especially solutions “that don’t result in families going bankrupt and thousands being added to the unemployment lines.” 

“With cases once again rising, it’s clear the governor’s go-it-alone, grab bag approach to responding to the coronavirus has been a failure,” the speaker said. “We must work together in order to keep our businesses open and our citizens safe.” 

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