The Wisconsin Supreme Court, COVID-19, And American Civics

By Jarred Boyer & Tyler Schaeffer
May 28, 2020

The news following Wisconsin’s Supreme Court decision to strike down the state’s second stay-at-home order has focused on the aftermath of the decision. Governor Tony Evers called the state “the wild west” on MSNBC when businesses, in counties that did not implement local stay-at-home orders, began to open their doors.

The decision itself has newsworthy portions, including multiple justices citing cases that law students in Constitutional Law classes around the country studied this past semester. Justices weighing in on novel legal issues surrounding COVID-19 by referencing Constitutional legal cases may seem strange, but the majority opinion was grounded in something with which all Americans are familiar: separation of powers.

The eye-catching and news-garnering parts of the opinion, such as the characterization of the order as “something we normally associate with a prison,” and the history lesson about the Wisconsin Legislature during the Spanish Flu, had little to do with the legal ruling.

While many states use emergency powers granted to governors to implement stay-at-home orders, Wisconsin’s Legislature previously limited their Governor’s emergency powers. The restriction gives the Governor ability to declare a state of emergency for 60 days or less, extended only by a joint resolution of the Legislature. The Executive attempted to bypass this guideline and an opposing party majority Legislature through Department of Health Services (DHS) Secretary Andrea Palm. The DHS ordered a second stay-at-home order using the power granted to the DHS instead of the Governor’s emergency powers. This order extended the stay-at-home order beyond the 60-day deadline for a state of emergency.

The Supreme Court majority (4-3) found this order to be unacceptable for the following reasons:

  1. The first issue was the DHS Secretary exceeded the agency’s authority by promulgating such an order. Although the DHS is an executive agency, its authority is granted through statutes passed by the Legislature. The DHS violates the separation of powers between the legislative and executive branches in the state’s constitution when it acts in a way which exceeds the authority granted by the Legislature.
  2. The second issue was that the order, as implemented, constituted a rule under Wisconsin Law. To enact an emergency rule, the DHS should have followed specific rule-making procedures set forth by the Legislature; since this process did not take place, the order was unenforceable.

Separation of Powers and the concept of checks and balances, taught in American Civics classes, play a significant role in every action throughout this case. Governor Evers is granted expanded powers during an emergency, heightened from the normal authority of the executive branch, but that power is not absolute. Neither is the power of the DHS once created by the Legislature.

Finally, the Wisconsin Supreme Court is the interrupter of law and must step in when the Legislature and the Executive do not agree on governing functions. These same issues are currently at play on the Federal level as the Trump White House, the Centers for Disease Control and Prevention, the House of Representatives with a Democratic majority, and the Senate with a Republican majority, all clash over COVID-19 response.

Jarred Boyer is a law student at the University of Missouri – Columbia and a summer associate at Carmody MacDonald in St. Louis where he is focusing his work on litigation.

Tyler Schaeffer is a partner at Carmody MacDonald and focuses his practice on business litigation. Contact Tyler at [email protected] or 314-854-8645.

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