Wisconsin supreme court strikes down governor's stay-at-home order

Wisconsin’s supreme court struck down the state’s stay-at-home order on Thursday, ruling that Governor Tony Evers overstepped his authority by extending the order through the end of May.

The ruling reopens the state, lifting caps on the size of gatherings, allowing people to travel as they please and allowing shuttered businesses to reopen, including bars and restaurants. The Tavern League of Wisconsin swiftly posted the news on its website, telling members, “You can OPEN IMMEDIATELY!”

The 4-3 decision, written by the court’s conservative justices, also chips away at Evers’ authority to slow the spread of coronavirus and will force the Democratic governor to work with the Republican legislature as the state continues to grapple with the outbreak.

Evers issued a stay-at-home order in March and extended it in late April. Republicans asked the supreme court to block the extension, arguing that move required legislative approval.

Nearly seven out of 10 Wisconsin residents support the governor’s “safer at home” order, according to a Marquette University Law School poll. But Republican lawmakers in the state worried about the economic impacts of an extended shutdown.

Americans for Prosperity-Wisconsin, which filed a friend-of-the-court brief on Republicans’ behalf, praised the ruling. The state director, Eric Bott, called it “a win for the protection of the separation of powers and the necessary legislative and public oversight in the administrative rule-making process”.

But top health officials, including Dr Anthony Fauci, have warned against reopening too quickly.

The sheltering orders will remain in place until 20 May to give lawmakers time to develop a new coronavirus plan.

Republican lawmakers have yet to offer an alternative outbreak response plan. The state’s chamber of commerce proposed allowing all the state’s businesses to open at once, while asking high-risk establishments to take some safety measures.

Local governments can still impose their own health restrictions, however. In Dane county, home to the capital, Madison, officials quickly imposed a mandate incorporating most of the statewide order.

The GOP move against Evers mirrors actions taken by Republican-controlled legislatures in other states, most notably against the Democratic governors in the nearby “blue wall” states of Michigan and Pennsylvania. All three are critical presidential battlegrounds in November.

The GOP has been working to weaken Evers’ powers since he ousted incumbent Republican governor Scott Walker in 2018.

Speaking on the court’s decision, the chief justice, Patience Roggensack, wrote for the majority that the stay-at-home order issued by Wisconsin health secretary, Andrea Palm, amounted to an emergency rule that she did not have the power to create on her own, and also imposes criminal penalties beyond her powers.

“Rule-making exists precisely to ensure that kind of controlling, subjective judgement asserted by one unelected official, Palm, is not imposed in Wisconsin,” Roggensack, part of the court’s 5-2 conservative majority, wrote.

Rebecca Dallet, one of the court’s liberal justices, dissented. She wrote that the court’s decision will “undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price.”