On April 16th, Emergency Order 28 extended Wisconsin’s Safer at Home order by one month. The original order was set to end on April 24th and with this extension it will end the 26th of May. This extension, Emergency Order 28, also altered some aspects of the original order.
Public schools have been ordered to close for the rest of the school year, and libraries will be allowed to open to offer curbside service. Golf courses will be opened with some restrictions and official limitations will be set, telling essential business how many people will be able to be in their establishment based on their official capacity or size.
The Wisconsin legislature opposes Governor Evers’ order. Wisconsin Assembly Speaker Robin Vos, Majority Leader Jim Steineke, and the Republican caucus released a statement expressing their opposition.
In their statement, they pointed out that no benchmarks or metrics were laid out to provide guidance as to when Wisconsin will be ready to open back up. They also believe that this extension is excessive, pointing out that New York City, one of the hardest hit by the pandemic, will be lifting parts of their restrictions on May 15th.
No plan was laid out either as to how Wisconsin could slowly open up while continuing to take precautions to prevent the spread of COVID-19 were included either.
There is another problem plaguing this order. It is possible that parts of it may only be enforceable until May 12th, instead of the 26th. According to Wisconsin statute 323.10, the governor can declare a state of emergency, but that declaration will only last for 60 days. A joint resolution of the legislature would be required for an extension.
Act 185, which provides additional resources to fight the spread of COVID-19, was enacted April 15, 2020, and while it offers additional resources to fight the pandemic, it does not extend the state of emergency. This means, without an act of the legislature, the state of emergency will end May 12th as Governor Evers declared the original state of emergency on March 12th.
The Wisconsin Department of Health Services has been handling the response to the pandemic and it was with their guidance that the Safer at Home order was created and extended. In their extension order, they cited Wisconsin statutes 252.02, sections 3, 4, and 6 as giving them the authority to implement those measures.
While that statute allows the department to take action in a pandemic, section 6 states that “the department may authorize and implement all emergency measures necessary to control communicable diseases.” When it comes to this statute, the word “emergency” makes all the difference.
In theory emergency measures would require an emergency to be implemented. When the initial state of emergency ends, a legal challenge by the legislature may invalidate part of this order. Sections 3 and 4 give DHS the authority to issue orders relating to government buildings, schools, libraries, and other government buildings. Those parts of the emergency order would likely remain.
It has already been suggested that the legislature may pursue legal action relating to this order. If it were to happen, it is likely that the court will decide in their favor. This is indicated by the precedent set by their rejection of Governor Evers’ April 6th executive order illegally delaying the spring election.
Protests have already occurred and others are being planned for the coming weeks.
In case you are looking for anything else to do, golf courses will be open, but not much else.
You can find the sources I used here.
The Mill Review 