WILL proposes reforms to Wisconsin emergency powers

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A new report from the Wisconsin Institute for Law & Liberty proposes a series of reforms to Wisconsin’s emergency-powers statutes, including preventing emergency declarations from lasting more than 30 days and prohibiting orders from confining people to their homes.

WILL held a webinar on Friday to discuss the current laws, recent court cases involving the use of emergency powers and policy recommendations to limit the scope of future emergency declarations.

Wis. Stat. § 323.10 allows the governor to issue an executive order declaring a state of emergency for the state or any part of the state. The state of emergency can’t last longer than 60 days, unless it is extended by a joint resolution of the Legislature.  The governor or the Legislature by joint resolution may revoke the order.

Rick Esenberg, WILL president and general counsel, said the definition of emergency is too broad.

“Emergency can be just about anything,” Esenberg said. “This isn’t just about COVID-19, and we shouldn’t allow our thinking to be dominated by whether or not we like or don’t like what the governor has done in respect to the pandemic.”

Other issues that governors could consider an emergency could be climate change, racism, unlawful immigration or an increase in crime — each of which could seem more or less threatening depending on a person’s politics, Esenberg said.

Under Wis. Stat. § 323.12, the governor has the power to issue any orders deemed necessary during a state of emergency, including orders that are needed for the “security of persons and property” and that could suspend administrative rules hindering a response to a disaster.

“If we are going to allow the governor to issue these kinds of orders … then it’s important for us to make sure we have temporal, procedural and substantive safeguards,” Esenberg said.

He and Dan Lennington, WILL deputy counsel and author of the report, outlined five proposed reforms to current laws. Their first recommendation is to prevent emergency declarations from lasting more than 30 days, allow a single house of the Legislature to terminate emergencies and forbid serial orders. Lennington said most states have a 30-day limit, and Wisconsin did, too, until 2009, when the Legislature increased the limitation to 60 days.

“The justification to allow the governor to rule by decree … is to allow an emergency to be handled for a limited period of time until the Legislature can get together to address it,” Esenberg said. “A 30-day limitation would be perfectly adequate in this case.”

Lennington said the report’s second proposal would codify the decision in Wisconsin Legislature v. Palm by requiring orders from the Department of Health Services and governor to be promulgated as rules. This proposal provides for a 14-day grace period under certain circumstances. Esenberg said the decision needs to be made permanent because the state Supreme Court specifically said its ruling had not affected the governor’s powers.

Lennington recommended a similar process for local emergency orders. The proposal would require local law-making bodies to ratify orders, while giving elected officials a seven-day grace period.

“We understand there are certain circumstances where one may have to act very, very quickly,” Esenberg said. “We don’t want to get in the way of that, but at some point, it’s appropriate that the Legislature come in and exercise independent judgment.”

In addition, WILL proposed giving local governments the power to opt out of statewide health orders. Esenberg said this isn’t unprecedented. He used Florida as an example, which has handled mask mandates at the local level, rather than issuing a statewide order.

The group would also like to prohibit emergency orders from confining people to their homes, forbidding travel, closing businesses or churches, or impairing constitutional rights. Under the proposal, orders taking such actions would have to undergo judicial review, and the government would have to pay attorney fees and costs if it loses the case.

Esenberg encouraged people to care about the process and think about emergency powers beyond the pandemic and the current governor.

“Even if you love the governor that we have today, I guarantee you that there will be one in the future that you do not love,” Esenberg said. “Think about what you would do and how you would think about it if a different governor or president used that authority in a way that you did not approve of.”

WILL plans to work with the Legislature on the proposals and lawmakers’ own reforms to the laws governing emergency powers.

The full report and a replay of the webinar are available online.