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Wisconsin’s ‘Safer at Home’ Order Was Struck Down. What Happens Now? [UPDATED]

answering some of the many questions prompted by the Supreme Court ruling

Tom Giffey

Entrance to the Wisconsin Supreme Court inside the state Capitol in Madison. (Photo by Richard Hurd | CC BY 2.0)
Entrance to the Wisconsin Supreme Court inside the state Capitol in Madison. (Photo by Richard Hurd | CC BY 2.0)

On a 4-3 vote announced Wednesday evening, the Wisconsin Supreme Court ruled that Gov. Tony Evers’ administration exceeded its authority when it extended the statewide “Safer at Home” pandemic order past its original April 24 ending date until May 26. The ruling came in a lawsuit filed by the state Legislature’s Republican majority against Andrea Palm, secretary-designee of the state Department of Health Services, who was appointed by Evers, a Democrat.

The Associated Press summed up the legal conflict this way: “Republicans asked the Supreme Court to block the extension, arguing that Palm exceeded her authority because the extension amounted to an administrative rule that required legislative approval. Evers countered that state law clearly gives the executive branch broad authority to quickly enact emergency measures to control communicable diseases.” Now, Evers’ administration will have to craft new rules that gain the approval of legislative Republicans.

Here are some questions and answers about the situation.

Can Wisconsinites return to business as usual?

Legally speaking, yes, with some caveats (more on those below). As the Milwaukee Journal Sentinel reported Wednesday night, “The ruling immediately lifts all restrictions on businesses and gatherings imposed by the administration’s order.” The lawsuit filed by Republicans had asked the court to stay its ruling for six days – essentially giving Evers and the GOP six days to agree on new rules – but the court didn’t grant the stay, so the ruling took effect immediately.

So schools are back in session?

No. As mentioned above, there are caveats to the ruling: The court specifically left in place the provision of Palm’s order that closed public and private K-12 school for the rest of the 2019-20 school year.

What about businesses and other public places?

Without a statewide order in place, restaurants, taverns, hair salons, and other businesses, as well as public facilities such as religious institutions, are free to open as they wish, unless there are local “stay at home” orders in effect. Certain Wisconsin cities and counties have passed such orders, including Dane, Milwaukee, and Brown counties. Some of these local rules will end May 26 – the original sunset date of Evers’ order – while others are open-ended. (Here’s a list of those local restrictions compiled by Wisconsin Public Radio.

Do businesses have to follow specific health guidelines to re-open?

No, unless – as the Journal Sentinel reported – “a local order is in place outlining such rules.” However, Republican leaders pointed business owners to guidelines published by the Wisconsin Economic Development Corp., while Evers urged residents to continue to stay home.

Will the state be re-opening in phases?

No. Evers had previously outlined a phased re-opening. Before the Supreme Court ruling, some restrictions had already been lifted: For example, effective Tuesday, retail stores were allowed to open with five customers or fewer as long as certain guidelines were followed. Evers had also previously announced the Badger Bounce Back plan, which would have re-opened the state in phases based on a variety of criteria, including a declining number of COVID-19 cases, hospital capacity, etc. However, that plan is no longer in force.

Are there local orders in place in the Chippewa Valley?

UPDATE: Yes. As of Thursday afternoon, both Eau Claire and Dunn counties had enacted local orders restricting the size of public gatherings, etc. Read more about them here: “With State Mandate Overturned, EauClaire County Steps in With Anti-COVID Order.”

Is a new statewide ‘Safer at Home’ order possible?

Yes, but it will require bipartisan cooperation. And, as the Journal Sentinel reported, “it’s unlikely a new order would look like the order just struck down. Health Services Secretary Andrea Palm must develop a new set of rules through a process known as rulemaking that will be subject to the approval of a committee controlled by Republican lawmakers, three of whom are some of Palm’s harshest critics.”

While they haven’t proposed a plan of their own, Republican leaders say they are open to cooperation: “We would urge the Evers administration to work with us to begin promulgating rules that would provide clear guidance in case COVID-19 reoccurs in a more aggressive way,” Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald said in a press release Wednesday.

Meanwhile, Evers criticized the court ruling, saying it amounts to “throw(ing) the state into chaos.” WisPolitics.com said Thursday morning that while “the administration today will issue the framework of an emergency rule to put new regulations in place, Evers cautioned that the process wouldn’t be quick.”