Updated Thursday at 11:49 a.m. CT
Republican leaders of the Wisconsin Legislature asked the conservative-controlled Wisconsin Supreme Court on Tuesday to block an order from Democratic Gov. Tony Evers' administration extending the safer-at-home order until May 26.
Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald asked the Supreme Court to take the case directly, a move that would skip lower courts and get a final ruling sooner.
Last Thursday, Evers announced that he was directing state Department of Health Services Secretary Andrea Palm to extend the order closing most nonessential businesses from April 24 to May 26.
Vos and Fitzgerald said there was “immense frustration” with the extension, which the lawsuit argues if left in place will devastate the economy and leave Wisconsin “in shambles. They argue that Palm exceeded her authority in issuing it.
Vos and Fitzgerald said the order is eroding the economy and liberty of people in the state. In the lawsuit, the Republicans argue that Evers’ administration is using "czar-like" powers by restricting peoples’ movements for another month. Protests against the order have popped up around the state, with one scheduled for Friday at the Capitol.
Evers has said he believes the order was made legally. He lashed out at Vos and Fitzgerald during a call with reporters Tuesday afternoon, accusing the Republicans of launching “a political coup” to seize power from the executive branch. He predicted more people will die if the Legislature wins the case and lawmakers spend weeks trying to draft their own rules to blunt the virus' spread.
“It's about power," Evers said. "If they win, they get it. Political power should not trump life.” He implored the conservative justices to “do the right thing” and rule in his administration's favor.
On Monday, Evers released his plan for reopening Wisconsin that requires, among other things, a 14-day decline in positive COVID-19 cases and more protective equipment, tests and other supplies to deal with the pandemic. He said his plan mirrors guidelines issued by President Donald Trump's administration.
“I just accepted the biggest Republican in the country, his plan, because it’s a rational plan," Evers said. “Now, if the state Republicans don’t think Donald Trump is appropriate, they can deal with Donald Trump, I guess.”
University of Wisconsin-Madison Law School professor David Schwartz says the Legislature is challenging the Evers administration’s order on administrative and statutory grounds.
“The points that they're making to the court are that the stay-at-home order did not go through the required administrative procedures. And they're also arguing that even if it had gone through the required administrative procedures, that they think the governor doesn't have the power to issue a stay at home order and close businesses,” says Schwartz.
Schwartz says the Legislature asked the court to give the governor six days to go through the administrative procedures. After that time, an injunction would be put in place.
“That is the law [that] would be blocked, it would end the stay at home order,” he says.
It’s unclear to Schwartz whether six days is enough time to go through the whole administrative procedure, so he’s unsure what the goal of the GOP-controlled Legislature’s lawsuit is.
“The more aggressive goal might be ... to get the court to basically throw out the stay-at-home order entirely,” he says. “A more modest, and I would say reasonable, goal would be that they're just trying to have the Legislature have a seat at the table and have more input into how the stay-at-home order and the business closures are structured going forward.”
It’s difficult to say what the Wisconsin Supreme Court will do, but he says it has set a schedule to hear the case and it will be a few weeks until it makes any decisions. The court recently sided with Republicans in a lawsuit about whether the governor could postpone the spring election. The election went forward on April 7 despite outcry about the public health risk.
To date, 247 people have died from COVID-19 in Wisconsin and there are more than 4,600 confirmed cases.
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