/ Articles / GOP legislative leaders sue Evers’ administration over stay at home
As other states and countries re-open, Wisconsin remains in lockdown
The Republican leaders of the state Legislature sued Gov. Tony Evers’ administration this week over the planned lockdown of the state through May 26, hoping to head off what they say will be an economic catastrophe if schools and businesses remain closed through the end of the Memorial Day weekend.
Specifically, the GOP, via state Senate majority leader Scott Fitzgerald (R-Juneau) and Assembly speaker Robin Vos (R-Rochester), is seeking to restrain Andrea Palm, Evers’ designated but unconfirmed secretary of the Department of Health Services, from taking unilateral actions during the COVID-19 public health emergency. The petition was filed directly with the Supreme Court.
“Purporting to act under color of state law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers — unlimited in scope and indefinite in duration — over the people of Wisconsin,” the GOP petition states. “Per her decree, everyone in the state must stay home and most businesses must remain shuttered (with exceptions for activities and companies arbitrarily deemed essential). These restrictions apply not only to metropolitan areas with more COVID-19 cases, but also to rural counties with few or no known cases.”
Just as troubling, the petition asserts, Palm claims her shutdown authority has no expiration date, meaning it is even greater than Evers’ emergency powers, which last only 60 days unless extended by the Legislature.
“To be sure, emergency order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again,” the petition asserts. “Perhaps it will even run into 2021. In any case, by the time the secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the order’s countless other downstream societal effects. Our state will be in shambles.”
Evers quickly fired back on Twitter, calling the lawsuit an attempted power grab by Republicans.
“Today’s action by legislative Republicans during a crisis is a shameful response by people elected to protect and serve the people of our state,” the governor tweeted. “It is a disservice to those we represent, those who are struggling in this crisis, and the economy we will need to rebuild together.”
And the lawsuit never mentions saving lives, Evers continued.
“It doesn’t mention protecting our nurses, doctors, first responders, and critical workers,” he tweeted. “Instead it’s 80 pages of a lawsuit focused entirely on how to get legislative Republicans more power.”
However, grabbing power is exactly what Vos and Fitzgerald were accusing Palm and the administration of doing.
“Incredibly, the secretary took this unprecedented action without following any of our state’s requirements for rule making, while also intentionally waiving any reliance on the governor’s emergency authorities, set to expire before this order,” the petition stated. “If a single bureaucrat can evade the controls and accountability measures that the Legislature has enacted to control agency overreach simply by labeling what is obviously an emergency rule a mere ‘order,’ then all of the reforms that the Legislature has put in place, and which this court has interpreted and enforced over the years, are a meaningless, dead letter — in their most consequential application.”
Issued as a rule rather than as an order, the lawmakers argued, would have given the Legislature’s Joint Committee for Review of Administrative Rules a seat at the table.
“In particular, it would have had an opportunity to review emergency order 28 and to suspend it if it exceeded DHS’s statutory authority, was arbitrary and capricious, or imposed undue hardship, especially on small businesses and local governments,” the petition stated. “That accountability to the legislative branch — from which agencies derive their powers in the first place — would, in turn, have produced a more measured rule that balanced the need to protect public health with the need to preserve Wisconsin’s existing cultural and economic edifice.”
Indeed, the lawmakers continued, an emergency rule could have been issued just as quickly as the emergency ordered that proves that issuing the order was not about any concerns over delay.
“One is therefore left to conclude that the secretary brazenly evaded the administrative-review statutes precisely to cut the Legislature out of the decision-making process,” the petition asserts.
In addition, the petition contends, the order is flawed because it bases Palm’s powers in DHS’s general “duties and powers” statute, though since 2011 agencies are prohibited to do so to augment powers beyond what other, more specific statutes explicitly confer. All of which means the DHS’s limited powers to quarantine infected individuals and prohibit public gatherings cannot remotely authorize across-the-board bans on travel, gatherings at private residences, and operation of businesses in Wisconsin, they argued.
What’s more, the petition asserts, the order is arbitrary and capricious in several respects, including in its freewheeling categorization of businesses as either “essential” or “nonessential” — a criterion the lawmakers say does not appear in DHS’s enabling statute and has nothing to do with public health.
Fitzgerald and Vos asked the high court to enjoin enforcement of emergency order 28 because it was improperly promulgated, because it exceeds the department’s authority, and because it is arbitrary and capricious to the extent “it confines all residents to their homes, prohibits all private gatherings, broadly restricts travel, and closes all businesses deemed nonessential.”
The lawmakers also suggested that the court stay enforcement of the injunction for six days to allow DHS sufficient time to promulgate a new emergency rule consistent with Wisconsin law.
Badger Bounce Back
Just days before the GOP lawsuit, Evers had announced Wisconsin’s “Badger Bounce Back” plan, which he said outlined important criteria for reopening the state’s economy. Evers said he was excited and hopeful about the plan, a three-phase reopening based upon various benchmarks.
Among the criteria for moving from phase to phase are a downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period and a downward trajectory of COVID-19-like syndromic cases reported within a 14-day period, as well as a downward trajectory of positive tests as a percent of total tests within a 14-day period.
“As we’ve learned over the past month, in the most difficult of circumstances, Wisconsinites will rise to the occasion, helping each other and working together to do what’s best for our families, our neighbors, and our communities,” Evers said. “That’s what the Badger Bounce Back is all about: our resilience as a people and as a state.”
In phase one of the Bounce Back, restaurants using best practices, including reduced seating and social distancing, could reopen, though bars would remain closed. Gatherings of up to 10 people would be allowed, and schools would reopen.
Bars and non-essential establishments could reopen in phase 2, as could non-secondary schools, and public gatherings would be increased to a maximum of 50. In phase 3, social distancing requirements would end and mass gatherings would be allowed.
But Evers acknowledged the state did not yet meet the criteria for phase 1, and there was no set timetable for even reaching phase 1.
Whats more, even in phase 1, restaurants would be required not only to practice social distancing but to adopt best practices that would prohibit entrance by people 60 years of age or older. Unnecessary visits to nursing homes and hospitals would be further prohibited until a COVID-19 vaccine was available, which could be up to 18 months or longer.
Republicans and many business owners were furious, saying the Bounce Back plan was simply an indefinite lockdown order in camouflage, using the lockdown to expand not only government power but the size the government, too.
“He claims to be following the CDC guidelines, but instead is expanding on them, saying we need to hire 1,000 new contract tracers when positive cases aren’t significantly increasing,” Vos and Fitzgerald said of Evers’ plan. “The governor also wants to postpone reopening until we increase testing when we are currently using only around 20% of our testing capacity. These are not criteria for reopening, they’re roadblocks.”
The lawmakers said DHS reports show that 60 percent of the state’s counties have fewer than 10 cases, and 10 have none, but Evers was doubling down anyway on his plan to keep the entire state locked down until after Memorial Day.
“We continue to call on the governor to retreat from his one-size-fits-all approach and allow the state to safely open up regionally so people can get back to work,” they said. “Wisconsin is a diverse state; obviously, the Northwoods can’t be treated like Dane and Milwaukee counties. Using the CDC guidelines, it appears portions of the state would be only days away from the first phase of reopening.”
State Sen. Van Wanggaard (R-Racine) called Evers’s approach “the more of the same” plan.
“I appreciate that the governor has finally at least indicated that he is thinking about reopening the state’s economy, someday, maybe,” Wanggaard said. “He is creating roadblocks to reopening that are entirely subjective and may be months — or years — away from development.”
Nearly 70% of all Wisconsin COVID-19 cases are in the six-county Milwaukee/Chicago metro area, Wanggaard said, and another 14% are near Madison and Green Bay.
“Requiring two weeks straight of decreasing positive results means that Wisconsin could see 13 days of decreases, but if there is one more case on day 14, the previous 13 days are wiped out,” he said. “Even areas of the state that have no cases for two weeks will be unable to reopen unless the whole state sees decreases. It’s lunacy. I know the governor knows this, but it bears repeating, you can’t reduce from zero.”
The lawmaker said every other neighboring or “partnering” state has an end-date for their Stay at Home order at least three-and-a-half weeks earlier than Wisconsin’s.
Wanggaard also said Evers had buried in his plan a prohibition on visits to nursing homes, rehab centers, long-term care, and correctional facilities until a vaccine is developed, which he said could be years away.
John K. MacIver Institute for Public Policy board chairman Steve Fettig said Evers was not serious about reopening Wisconsin this year.
“The metrics he lays out are not realistic and are not attainable in any reasonable amount of time,” Fettig said. “We have slowed the spread of COVID-19 and stopped our hospitals from being overwhelmed here in Wisconsin. We can reopen Wisconsin’s economy, put our fellow citizens back to work and treat COVID-19 at the same time. Why are the realities that are hitting Wisconsinites hard being ignored?”
Fettig said more than 589,000 residents had filed for unemployment, farms were failing, people were falling into depression, and domestic violence was on the rise.
“Gov. Evers, if you wait, there will be no Wisconsin to reopen,” he said.
Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.