MADISON, Wis. (AP) — Attorney General Josh Kaul urged the conservative Wisconsin Supreme Court on Tuesday to reject a Republican lawsuit seeking to lift Democratic Gov. Tony Evers’ stay-at-home order, arguing the governor’s administration has broad authority to protect Wisconsin residents from the coronavirus and the GOP doesn’t have a backup plan.
Kaul, a Democrat, said in a late-afternoon filing with the court that state law clearly gives the executive branch broad authority to quickly enact emergency measures to control communicable diseases. Evers’ stay-at-home mirrors similar orders in at least 42 other states and has saved at least hundreds and possibly thousands of lives, Kaul claimed in the filing.
“Through this case, however, (Republicans) seek to undo the emergency orders that have contributed to Wisconsin’s early success in slowing the transmission of the coronavirus,” Kaul said. “(The Republicans) are vague as to precisely how they believe the State’s response to the coronavirus outbreak should be modified or how that would benefit Wisconsinites. . . . (their) arguments should be rejected. They posit a fundamental reworking of how Wisconsin responds to a pandemic — in the midst of one — that is incompatible with the statutes, constitutional principles, and on-the-ground reality.”
Evers issued a stay-at-home order in March. It was supposed to expire on April 24 but state Department of Health Services Secretary Andrea Palm two weeks ago extended it to May 26 at Evers’ direction. The order mandates people stay home except for going out to buy groceries or for other important reasons and requires most nonessential businesses to close.
Republicans and business leaders are growing impatient with the lockdown and contend the order has crippled the economy. GOP legislators filed a lawsuit directly with the conservative Supreme Court on April 21 seeking to block the order. They argue that it amounts to an administrative rule and Palm needed the Legislature’s approval before she could issue it.
They’ve asked the court to impose a temporary injunction blocking the order. They also want the court stay the injunction for six days to give the DHS time to properly promulgate an rule addressing the pandemic.
Kaul also argued in his filing that the Legislature lacks standing to sue because the order hasn’t caused it any injury and the order isn’t a rule that would require legislative approval. He went on to argue that state statutes clearly allow the DHS to close schools, churches and other places to control outbreaks and epidemics.
“Indeed, the U.S. Supreme Court long ago recognized the appropriateness of giving administrative officials authority over responding to public health crises because of the ‘paramount necessity that a community . . . protect itself against an epidemic of disease which threatens the safety of its members,'” Kaul wrote, quoting a 1905 U.S. Supreme Court ruling.
Earlier in the day, four labor unions — the Milwaukee Teachers’ Education Association, Madison Teachers Inc., Service Employees International Union Healthcare Wisconsin and Amalgamated Transit Union Local 998 — asked the court for permission to intervene in the case and help defend the order. The court rejected the request just hours after it was filed with no explanation.
Conservatives control the court 5-2. Earlier this month they struck down an Evers order that postponed the state’s April 7 presidential primary and spring electon, signaling Kaul faces long odds in this case.
The Wisconsin Institute for Law and Liberty, a conservative law firm, filed an advisory brief with the court on Tuesday on behalf of the Independent Business Association of Wisconsin, Double Decker Automotive in Pleasant Prairie, and Shear Xcellence, a hair salon in Grafton. The businesses argued that the DHS has assumed so much power that it has come “perilously close” to tyranny and that legislators never intended to give the executive branch so much power.
The court accepted that brief with no explanation.