Wisconsin Supreme Court blocks governor’s “safer at home” extension

The Wisconsin Supreme Court on Wednesday struck down Governor Tony Evers’ administration’s extended “safer at home” order, which was set to expire May 26. It is the first time a state supreme court has struck down emergency orders issued by a governor due to the coronavirus pandemic

Republicans in the state legislature argued that Health Secretary-designee Andrea Palm abused her powers when she issued the extended order in April. In a 4-3 decision, the state’s highest court said the order should have been issued as a rule, which would have required working with the legislature. The majority consisted of four of the state’s five conservative justices.

The state’s Democratic governor and Republican-controlled legislature will now have to work out a compromise on any future plans. 

“Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin,” Chief Justice Patience Roggensack wrote in the majority opinion. 

It appears the ruling will take immediate effect. In her majority opinion, Roggensack struck down the safer at home order immediately; however, she caused a bit of confusion by saying it would stay in effect until May 20 in a concurring opinion. The legislature had asked the court to grant a six-day stay on any ruling to give lawmakers time to work on a new plan with the governor.

The safer at home order has closed many businesses in Wisconsin. Schools were shut down as well for the remainder of the academic year to slow the spread of the virus. The restrictions have had a devastating impact on the state’s economy. Over the past few of weeks, Evers has loosened some of the rules for businesses, such as allowing curbside service and certain “standalone or strip-mall based retail stores” to have five shoppers inside at a time. 

The Tavern League of Wisconsin, a trade group that represents alcohol retailers, said on its website Wednesday night that businesses could open immediately, but urged them to adopt safe practices issued by the state. The mayor of Madison, however, tweeted that the safer at home order will remain in effect in the city and Dane County, where Madison is located, until May 26.

While the legislature argued that Palm abused her powers, the Evers administration contested that the health secretary has the authority to issue broad orders during a pandemic. 

In a dissenting opinion, Justice Rebecca Dallet said the decision would “go down as one of the most blatant examples of judicial activism in the court’s history” and warned that “it will be Wisconsinites who pay the price.” She said the decision “hamstrings” the state’s health department to a “time-consuming, lengthy rulemaking scheme.”

The ruling from the court comes one day after a Marquette University Law School poll found that 69% of registered voters in the state thought it was appropriate to close schools and businesses in response to the COVID-19 pandemic. That was a drop from 86% who said the measures were appropriate in late March. Slightly more than half of voters in the poll said they trusted the governor more than the legislature about when it was best to reopen Wisconsin, while 33% of voters said they trusted the legislature more. 

Wisconsin isn’t the only Midwestern battleground state where the Republican-controlled legislature has challenged a Democratic governor’s powers. Last week, GOP legislative leaders in Michigan sued Governor Gretchen Whitmer over her stay at home order.

Aaron Navarro contributed to this report.

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