The Wisconsin Supreme Court Misinterprets Emergency Powers

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Health Care, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
A young woman during the coronavirus outbreak of 2020

Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency.  When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing.  The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic.  As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.  

On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.

The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot.  All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.

The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion.  There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.

A.      Background

The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin.  This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”).  That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.

Meanwhile, despite these emergency orders, preparations continued for the spring election in Wisconsin.  Nothing in the text of the Safer-at-Home Order postponed in-person voting on election day. Ignoring the pleas of local government officials charged with conducting the election, and turning a deaf ear on calls from civil rights and public health advocates to delay the vote, Governor Evers and the leaders of the Wisconsin Legislature publicly stated that the April 7 election would go on as scheduled.  However, as election day approached, local election officials reported a difficulty in obtaining the necessary number of workers needed to staff the polls, particularly in the urban areas of Milwaukee and Madison. In response, Governor Evers activated the Wisconsin National Guard in order to provide more poll workers.

Mere days before the April 7 election, Secretary-Designee Palm advised the governor that, in spite of the advance preparation of local officials, and despite the activation of the Wisconsin National Guard, in-person voting could not be administered in a sufficiently safe way on election day.  The Department of Health Services made a recommendation to the governor to suspend in-person voting in the interest of saving lives.  According to Secretary-Designee Palm, “In-person voting would, without question, accelerate the transmission of COVID-19 and increase the number of cases.  And an increase in the number of cases in Wisconsin would result in more deaths.”

On Monday April 6, 2020, Governor Evers issued Executive Order 74. In that order, Governor Evers declared that, given the existence of a public health emergency in Wisconsin coinciding with the date of the scheduled spring election, he was acting to “[s]uspend in-person voting for April 7, 2020, until June 9, 2020, unless the Legislature passes and the Governor approves a different date for in-person voting.” The governor directed the Wisconsin Legislature to meet in special session so that the legislature could take action on changing election rules. (The legislature subsequently met briefly in special session and adjourned without any action.)

Immediately following the issuance of Executive Order 74, the leaders of the Wisconsin Legislature filed a petition with the Wisconsin Supreme Court challenging the order’s legality.

B.      The Decision in Wisconsin Legislature v. Evers

The Wisconsin Supreme Court accepted the case – styled Wisconsin Legislature v. Evers — as a matter of original jurisdiction. On April 6, 2020, the same day that it accepted the case, the Court issued a ruling enjoining the operation of Executive Order 74 and permitting in-person voting to proceed the following morning. The Court subsequently released the text of both an unsigned majority opinion and a dissent written by Justice Ann Walsh Bradley (joined by Justice Rebecca Dallet).  Justice Daniel Kelly, who was himself a candidate on the ballot in the spring election, did not participate.

The majority opinion begins its analysis by looking at the Wisconsin Constitution in order to find the express authority for the governor to issue Executive Order 74. Unsurprisingly, the Court concludes that there is no such express authority contained in the Wisconsin Constitution.  That is because emergency powers are not created by the Wisconsin Constitution.  They are created by statute through laws passed by the Wisconsin Legislature.

The majority opinion next examines Chapter 323 of the Wisconsin Statutes, which governs “Powers and Duties Related to Emergency Management.”  The Court’s majority recognizes that the language of section 323.12(4)(b) contains a broad delegation of authority from the legislature to the governor during a declared state of emergency. The governor is given emergency power under that section to “issue such orders as he or she deems necessary for the protection of persons and property.”  However, the majority ultimately concludes that the meaning of the words “issue such orders as he or she deems necessary” should be interpreted in a limited fashion.

The limitation that the Court majority imposes on the governor’s emergency power does not come from the words of section 323.12(4)(b) itself. Such a reading would be impossible, because the plain meaning of the words to “issue such orders as he or she deems necessary” constitute a broad a grant of discretionary power for the governor to take any action proportionate to the emergency situation.  Nothing in the actual language of this section of the statute limits the nature or the scope of the orders that the governor is authorized to issue during a state of emergency. The only limit contained in the text on the grant of authority given to the governor is that the orders must be ones that the governor (not the legislature or the courts) deems “necessary.”

However, the majority opinion searches for and discovers a principle limiting the governor’s emergency power elsewhere — in the words of subparagraph (d) of the statute. This is surprising because the words actually used in subparagraph 323.12(4)(d) do not express any intention to limit the emergency power that the legislature is delegating to the governor.  Fairly read, subparagraph (d) is a grant of an additional affirmative power to the governor, and not in any way an attempt to circumscribe the governor’s power. Subparagraph 323.12(4)(d) grants the governor the power to issue orders during an emergency that “suspend the provisions of any administrative rule if the strict compliance with that rule would prevent, hinder, or delay necessary actions to respond to the disaster.”

How can the broad grant of emergency power under subparagraph (b) be scaled back through the act of giving the governor a more specific power under paragraph (d)? The Court majority concludes that a broad power to “issue such orders as he or she deems necessary” should not be interpreted in such a way that permits the governor to take actions that go beyond the more specific delegated power contained in subparagraph (d) of the statute.  The majority opinion reasons that the affirmative grant of a power to suspend  administrative rules in an emergency implies that the governor cannot go so far as to suspend a pre-existing statutory provision – even if the governor deems the suspension of a statute to be necessary for the security of persons and property.

As will be explained below, the convoluted reasoning contained in the majority opinion misconstrues the language of Section 323.12(4)(b) and, significantly, it misconstrues Executive Order 74 – Governor Evers never “suspended” any statutory provision.

Next, the majority opinion proceeds to make a cursory survey of laws in other jurisdictions granting emergency powers to the executive branch, and finds that the failure of the Wisconsin Legislature to include language expressly authorizing the Wisconsin Governor to suspend pre-existing statutory provisions supports the majority’s narrow reading of the statute.  Finally, the majority opinion concludes by refusing to even discuss the possible applicability of Wisconsin Statutes Chapters 250 and 252 to the scope of the governor’s emergency power – statutes that a) govern the “Powers and Duties” of the Secretary of the Department of Health Services during an emergency and b) specifically address actions authorized in response to the outbreak of “Communicable Diseases.”

In summary, the entire universe of Wisconsin law that the majority opinion relies upon, as it considers whether the words “issue such orders as he or she deems necessary” are broad enough to support an order prohibiting the public from congregating for in-person voting, is a single sentence found in a different section of the statute.  From that single sentence, giving the governor the power to suspend administrative rules, the majority opinion concludes that the governor lacks the power to issue orders that suspend statutes. However, the actual language of subsection (d) does not mention statutes at all – the majority opinion infers its conclusion through negative implication.  A monumental decision of the Wisconsin Supreme Court rests upon the slimmest of textual reeds.

C.      The Real Legal Issue in the Case

The justices who joined in the majority opinion seem to believe that Executive Order 74 raised grave constitutional concerns of gubernatorial overreach which threatened the separation of powers contained in the Wisconsin Constitution. If that is the case, then these four Justices were mistaken.  Properly understood, this case is not about separation of powers at all. This case is about a battle of conflicting statutory schemes.

On the one hand, the Wisconsin Legislature has passed a law that provides for rules that govern the time, place and manner of elections.  The “[s]pring election” must be “held on  the first Tuesday in  April” (Wis. Stat  § 5.02(21)) and in order to be counted all absentee ballots must be received by election day (Wis. Stat. § 6.87(6)).  The legislative commands contained in these statutes continue indefinitely unless the legislature meets and passes a new law which repeals or modifies these rules.

On the other hand, the Wisconsin Legislature has also passed laws delegating a broad scope of power to the governor and to the Secretary of the Department of Health Services during the existence of a public health emergency. A broad executive power to take emergency action in response to an outbreak of communicable disease has existed in Wisconsin since 1876. Today, these broad powers are specifically granted to the Secretary of the Department of Public Health in Wisconsin Statutes Chapters 250 & 252. In addition to the power to direct his subordinate in the executive branch, the Wisconsin Governor also possesses the statutory power to oversee and direct the entire executive branch during a declared state of emergency. The use of the foregoing powers by the governor to prohibit public gatherings and minimize the exposure to communicable disease during an emergency can obviously create a conflict with the statutes that define the time, place and manner of elections.  Therefore, in such a situation, one statutory scheme must yield to the other.  The true question before the Wisconsin Supreme Court was simply which statutory scheme the legislature intended to take priority.

It is important to recognize that the governor’s order responding to the outbreak of communicable disease is not an example of lawmaking power. His order is an administrative act which merely exercises an emergency power granted to him in advance by the legislature – a power which is triggered when the governor declares a state of emergency. The Wisconsin Supreme Court explained the difference between an executive attempt to make law and the exercise of an already delegated power when it discussed the authority of the State Board of Health in the case of State v. Burdge, 95 Wis. 390, 401-402 (1897):

The true test and distinction whether a power is strictly legislative, or whether it is administrative, and merely relates to the execution of the statute law, “is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and- conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.” The first cannot be done. To the latter, no valid objection can be made. Where an act is clothed with all the forms of law, and is complete in and of itself, it may be provided that it shall become operative only upon some certain act or event, or, in like manner, that its operation shall be suspended; and the fact of such act or event, in either case, may be made to depend upon the ascertainment of it by some other department, body, or officer, which is essentially an administrative act. (citations omitted)

As the Wisconsin Supreme Court further explained at page 403 in the Burdge case:

The making of such rules and regulations, to carry into effect the provisions of an act of strictly legislative authority “no more partakes of legislative power than that discretionary authority intrusted to every department of the government in a variety of cases. This practice of giving discretionary power to other departments or agencies, who were intrusted with the duty of carrying into effect- some general provisions of law, had its origin at the adoption of the constitution, and in the action of the first congress under it, as the federal legislation abundantly shows.”

Therefore, the issue before the Court in Wisconsin Legislature v. Evers was not a separation of powers issue at all, and it is misleading to label it as such. Governor Evers did not attempt to “make law” when he issued Executive Order 74. He exercised an administrative power to respond to outbreaks of communicable disease  — an administrative power that the legislature first conferred on the State Board of Health in 1876, then transferred to various executive branch authorities over the years, before finally lodging it in the Department of Health Services and placing it under the control of the governor in 1995 pursuant to the Emergency Management statute.

D.      The Proper Scope of the Governor’s Emergency Power

i.                     The Plain Meaning of Section 323.12(4)(b)

In order to determine whether Executive Order 74 falls within the scope of the governor’s emergency powers, we must first examine the plain meaning of Section 323.12(4)(b). The statute reads:

(4) Powers during an emergency. The governor may do all of the following during a state of emergency declared under s. 323.10: . . .

(b) Issue such orders as he or she deems necessary for the security of persons and property.

The words “issue such orders” express an extremely broad grant of authority to the governor, during the existence of a state of emergency, to issue orders of any kind. The only restriction on the exercise of this power contained within the language of section 323.12(4)(b) is that the governor can only issue such orders subsequent to an official emergency declaration and, in addition, that the emergency must be ongoing (thereby supporting the governor’s determination that the order is “necessary”).

The phrase “issue such orders” contains no limiting principle on the type or scope of the order issued. The governor’s power is not limited by the use of any adjectives such as “reasonable” or “temporary,” for example.   Therefore, the words “issue such orders” in the statute should be read as the equivalent of the words “issue any orders” that the governor deems necessary.

The discretion to determine whether or not the specific order issued by the governor is “necessary” in order to protect the security of persons and property is firmly placed with the governor himself.  The statute says that the power exists to issue orders that “he or she deems necessary.”  The legislature could not have been more clear: the power to decide whether the governor’s order is necessary is not to be made by the legislature, and it is not to be made by the courts.

Furthermore, this delegation of power to the governor contained within the Emergency Management statute should be read broadly, because a grant of emergency power should always be read in the broadest possible terms so long as the factual predicate (the existence of a “disaster”) is present.  The proper role of the Wisconsin Supreme Court is merely to assure that the factual predicate has been met, permitting the emergency power to be exercised. It is not the role of the Court to place an artificial limit on the scope of the emergency power deemed necessary by the governor.

The principle that statutes granting the power to respond to outbreaks of communicable disease should be interpreted broadly has long been recognized in Wisconsin. In 1909, the State Board of Health published a book entitled “The Powers and Duties of Boards of Health.”  In this publication, the Board of Health explained its statutory power to make rules and regulations for the control and suppression of communicable disease. The Board noted that rules for the suppression of communicable disease supersede all local rules, regulations or ordinances that are in conflict with those rules. (pages 5-6). And the Board noted that its authority to issue such rules and regulations should be interpreted broadly:

It may be said at the outset that these powers, when exercised solely and impartially in the interests of the public health, and not for any private purposes or ends, are as ample as legislative authority can confer; in effect, they are practically unlimited.  The great importance of the object for which health boards are constituted entitles them to such power, and entitles them also to the most liberal construction on the part of the Courts, of all the laws under which they work. (page 15)

Therefore, under the plain meaning of the statutory language, the governor’s power to “issue such orders” so long as the governor deems them “necessary” in order to respond to a disaster is exceedingly broad. Executive Order 74, suspending in-person voting until a later date so that people would not gather in public polling places during an outbreak of communicable disease, falls within the plain meaning of the authority granted to the governor.

ii.                     Subparagraph (d) Does Not Limit the Governor’s Power

The language contained in the later subparagraph (d) of the Emergency Management statute simply does not act as a limitation on the broad scope of emergency power described above.

The majority opinion reasons that the positive grant of a power to suspend administrative rules described in subparagraph (d) necessarily implies a negative limitation on the governor’s power to suspend statutes. However, the Court majority mistakenly assumes that subparagraph (d) is relevant due to the fact that the governor is suspending a statute. On the contrary, the text of Executive Order 74 does not “suspend” any provision of the Wisconsin Statutes. It is true that the preamble to Executive Order 74 mentions Wisconsin Statutes section 5.02 as the statutory section relevant to the date of the spring election. However, nothing in the operative portion of Governor Evers’ order acts directly on section 5.02.  The governor’s order does not purport to change the content of section 5.02, it does not cancel that section’s continuing force as law (either permanently or temporarily), nor does it in any way render Chapter 5.02 without effect. The pre-existing statute continues in force, in its entirety.

What Executive Order 74 does do is prohibit a specific form of public gathering (the assembly of the public at polling places). Because this particular public gathering takes place on the date set by section 5.02, which is the first Tuesday in April, Executive Order 74 delays the in-person component of voting until a date when it can occur safely.  The text of the order takes pains to ensure that all of the remaining aspects of the election date on April 7 – other than those connected to in-person voting – remain unchanged.

If section 5.02 had required persons to actually show up and vote in-person on the first Tuesday in April, then Executive Order 74 could fairly be said to suspend the imposition of a legal obligation to assemble in public.  But section 5.02 does not impose any legal duty on anyone to actually show up and vote in-person.

Subparagraph (d) grants the governor the power to issue orders that suspend legal obligations imposed by administrative rules where compliance would hinder the emergency response. This power to suspend administrative rules could be used in many ways during an emergency to remove legal obligations.  Using this grant of authority, the governor could issue an order relieving members of the public from having to comply with an administrative rule (such as relieving businesses from the obligation of following pollution controls), or he could suspend administrative rules that regulate the chain of command or reporting obligations imposed on government agencies (such as the need to file a required report), or he could delay a deadline created by administrative rule (by extending the required filing date for a grant application).

Unlike these above examples, the text of Executive Order 74 does not relieve any person or entity from the obligation to follow any pre-existing statutory command. The order does not alter the legal rights of any person to cast a ballot. Every single person who wishes to vote may still vote, either using the absentee process if the ballot is returned by April 7 or by voting in-person on the delayed election date. Every candidate for office on the ballot remains a candidate for office. The order simply does not “suspend” the operation of a statute in the same sense that subparagraph (d) anticipates the possible suspension of administrative rules where individuals attempting to comply with other legal obligations would hinder the emergency response.

In fact, the care taken to limit the impact of Executive Order 74 on the voting process demonstrates that Governor Evers made every attempt to limit the scope of his order to what was “necessary” in order to prevent the transmission of Covid-19 via in-person contact, as required under section 323.12(4)(b).  At first, steps were taken to ensure that polling places would be sanitized, and that voting procedures would be modified in order to maintain social distancing between voters.  Subsequently, efforts were made to supplement the number of available poll workers with members of the National Guard. However, the Secretary of DHS specifically concluded on April 5 that the combination of these efforts was still insufficient to protect in-person voters under the existing circumstances.  The governor also waited to see if pending litigation in the federal courts would result in a court order delaying the election.  The timing of the executive order, and the governor’s reluctance to take action delaying in-person voting until the last possible moment, support the conclusion that the governor was narrowly tailoring his response to the changing circumstances of the coronavirus outbreak and did not exceed the scope of what he deemed to be necessary during the emergency.

iii.                   Other Statutory Provisions Support the Governor’s Broad Emergency Powers to Respond to Outbreaks of Communicable Disease

The broad scope of the governor’s authority to issue emergency orders under section 323.12(4)(b) is further supported by the existence of a broad executive branch authority to limit public gatherings of all kinds during an outbreak of communicable disease. This power has existed in one form or another under the Wisconsin Statutes since 1876. For more than a century, the Wisconsin Legislature has consistently expressed its intent to give the executive branch a broad power to decide how best to respond to outbreaks of communicable disease.

a.       The Executive Branch is the Proper Location for Emergency Power

It long has been recognized in our country that the executive branch is the branch of government that can act with the energy, efficiency and effectiveness necessary in order to respond to an emergency situation.  Our democracy was forged during a period of wartime emergency. Our constitutional structures reflect the lessons learned during the early years of our nation’s history. During the Revolutionary War, the Continental Congress was faulted for its inability to exercise effective military leadership. Under the Articles of Confederation, the new national government was created without an executive branch, and as a result the nation was slow to react to growing military threats from France and Great Britain. One of the purposes behind the adoption of the United States Constitution was to create a stronger executive branch for the national government. The founding generation recognized that legislative bodies need time in order to respond to emergencies: time to gather its members, time to deliberate, and time to draft and pass legislation. However, time is in short supply during emergencies. Because the executive power is vested in one individual, that power can be exercised with speed and decisiveness in an emergency.

In particular, when the emergency involves an outbreak of a communicable disease, the executive branch is better positioned than the legislature to take the type of fast action that is necessary in order to react to a constantly evolving factual situation.

b.       The Wisconsin Legislature Has Long Delegated Broad Power to the Executive Branch to Control the Spread of Communicable Disease

While some might argue that granting the broad emergency power contained in the language of section 323.12(4)(b) to a single individual is inconsistent with the democratic values of our society, an examination of Wisconsin history reveals that the legislature intended this exact result.

The Wisconsin Legislature was among the first state legislatures to address public health emergencies by passing laws that gave the executive branch broad powers during an outbreak of communicable disease:

On March 31, 1876, the Wisconsin legislature  . . . created the State Board of Health, a seven-physician panel responsible for “general supervision of the interest of the health and life of the citizens of the state,” making Wisconsin the tenth state in the nation with such a board, the first having been put in place in 1869 by Massachusetts. The legislature also granted the board unusually broad powers, allowing it to impose statewide quarantines unilaterally in times of public health emergencies as well as to issue “rules and regulations for the protection of the public health.” Because the full board convened only twice a year, this meant that one person — the state health officer — possessed the authority to issue statewide health orders in times of crisis. . . .

The broad emergency powers created in 1876 were put to effective use during the Spanish Flu Epidemic of 1918.  In October of that year, State Health Officer Cornelius Harper, in consultation with Governor Emanuel Philipp, issued an order closing all public institutions in Wisconsin:

. . . On October 10, 1918, the deteriorating situation statewide led [state health officer] Dr. Harper to take the more drastic step of ordering all public institutions closed. This followed a recommendation issued by U.S. Surgeon General Dr. Rupert Blue suggesting that public health officers might consider closing public institutions should local conditions warrant such action; but nowhere except in Wisconsin was such an order issued statewide or in such a comprehensive fashion.

After conferring with Governor Emanuel Philipp, Dr. Harper issued a statewide advisory, ordering all boards of health “to immediately close all schools, theaters, moving picture houses, other places of amusement and public gatherings for an indefinite period of time.” Within a day, virtually every local government in Wisconsin had cooperated and put the order into effect.

The Board of Health fully realized the magnitude of the step it had taken. In its bulletin the following month, it noted: “Never before in the history of the state has it become necessary to close schools, churches, theaters, saloons; in fact, everything except factories, offices, and places of regular employment. . . .”

From a modern perspective, it seems unthinkable that a single appointed bureaucrat would possess the independent authority to issue a binding statewide order that shut down all public activities across the state.

The broad executive power to take emergency actions in response to an outbreak of communicable disease has continued to exist uninterrupted under Wisconsin law since 1876.

c.       The Secretary of the Department of Health Services Today Exercises This Broad Statutory Authority, and Reports to the Governor

The State Board of Health was abolished in 1939, and its functions were transferred and re-transferred throughout the executive branch in the decades that followed. The Executive Reorganization Act of 1967 placed the Department of Health and Human Services under the authority of a part-time policy making board, named the Board of Health and Human Services.

In Chapter 39, Laws of 1975, the legislature abolished this board and replaced it with a secretary  appointed by the governor with the advice and consent of the senate. The Department of Health and Social Services was renamed the Department of Health and Family Services (DHFS) on July 1, 1996. In 2008, various programs of the DHFS were spun off under a renamed Department of Health Services.

Today, the Department of Health Services (DHS) is the executive branch department charged with controlling communicable disease within Wisconsin. The DHS is under the direction of a secretary that is appointed by and reports to the governor, and who serves at his pleasure. It is an administrative department of the executive branch – it is not an independent agency. In summary, the legislature took the broad executive powers from the 1876 statute and moved them around the executive branch for over a century, eventually lodging them today in a department of the executive branch that reports to the governor.

One thing has not changed, however. The powers of the Secretary of DHS to respond to an outbreak of communicable disease remain exceedingly broad.

Chapter 250 of the Wisconsin Statutes establishes the Department of Health Services as the state lead agency for public health. Among the powers and duties of the department listed under section 250.04(1) is “the power to execute what is reasonable and necessary for the prevention and suppression of disease.”  It is obvious that the power to prohibit public gatherings is both reasonable and necessary as a measure to reduce the spread of communicable disease.

Chapter 252 of the Wisconsin Statutes makes the existence of this power explicit. Entitled “Communicable Diseases,” this statute adds to the powers and duties of the Department of Health Services listed in Chapter 250. Most relevant here is section 252.02:

252.02  Powers and duties of department.

. . . .

(3) The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.

(4) Except as provided in ss. 93.07 (24) (e) and 97.59, the department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease and for the sanitary care of jails, state prisons, mental health institutions, schools, and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance. The department may issue orders for any city, village or county by service upon the local health officer. Rules that are promulgated and orders that are issued under this subsection supersede conflicting or less stringent local regulations, orders or ordinances.

. . . .

(6) The department may authorize and implement all emergency measures necessary to control communicable diseases.

“All” emergency measures means all emergency measures.  Polling places are “other places.” Therefore, during an outbreak of communicable disease, the Secretary of the Department of Health Services has the statutory authority to forbid public gatherings of persons in polling stations. Under the Wisconsin Statutes, the Secretary of the Department of Health Services possesses the authority to issue an order having the exact same scope as Executive Order 74.

Whenever possible, separate statutory provisions dealing with the same subject matter should be interpreted to be consistent with each other. When the legislature makes a law, we should assume that the legislature is aware of the pre-existing legal environment, and the courts should seek to interpret the new law in conformity with pre-existing law. Courts should always begin with the assumption that the legislature intends the Wisconsin Statutes to operate in a coherent fashion, and that it does not seek to create a patchwork of conflicting laws.

Therefore, the scope of the power delegated to the governor under section 323.12(4)(b) should be interpreted in a way that mirrors the scope of power delegated by the legislature to the governor’s subordinate in the executive branch, the Secretary of the Department of Public Health.  For over 100 years, it has been the law in Wisconsin that the highest executive branch official charged with protecting the public health has exceedingly broad powers to limit public gatherings during an outbreak of communicable disease. While it might be possible to argue that the legislature did not intend for the governor to have a greater scope of authority than the Secretary of DHS, it seems self-evident that the legislature intended the governor to possess at least the same scope of authority as his subordinate officer under Chapters 250 and 252.

It would serve no purpose to recognize that the governor has the power to order the Secretary of DHS to take an emergency action while at the same time denying the governor the power to issue that same order himself. In addition to being absurd, such a result would contradict the entire purpose of the Emergency Management Act itself, as explained below.

d.       The Emergency Management Statute Gives the Governor Authority to Exercise All Executive Power in Response to A Disaster

Section 323.12(4)(b) is one part of a comprehensive state law regulating the use of emergency powers. While the governor always has the authority to direct the activities of the Secretary of DHS, during a declared public health emergency the governor is granted an enhanced authority to direct emergency response operations. The Emergency Management Act in Chapter 323 is clearly intended to give the governor the unquestioned authority to manage the entirety of the executive branch response to an emergency.

The Emergency Management Act delegates broad emergency powers to the governor in order to permit the executive branch to respond to a “disaster.” The word “disaster” is defined in 323.02(6) as “a severe or prolonged, natural or human-caused, occurrence that threatens or negatively impacts life, health, property, infrastructure, the environment, the security of this state or a portion of this state, or critical systems, including computer, telecommunications, or agricultural systems.”  No one would seriously contend that the current Covid-19 outbreak fails to meet this statutory definition of a “disaster.”

The Emergency Management statute focuses on the “management” of the state government’s response to a disaster. The statute defines the phrase “emergency management” as: “all measures undertaken by or on behalf of the state and its subdivisions to . . . [p]repare for and minimize the effect of a disaster or the imminent threat of a disaster [or to] [m]ake repairs to or restore infrastructure or critical systems that are destroyed or damaged by a disaster.”  In order to ensure that the management of disaster response efforts proceeds in an effective manner, the legislature has given ultimate authority to the governor when it comes to overseeing the use of executive power during an emergency.

The structure of Chapter 323 indicates that the legislature was focused on the ability of the governor to direct the entirety of the bureaucracy of state and local government, so that the preparation for and response to disasters could be administered in an efficient manner across all government departments and government jurisdictions.  The statute focuses on the governor’s responsibility to declare a disaster, to designate lead agencies for the response to a disaster, and to oversee the operation of those agencies. The powers granted to the governor are exactly the powers that one would need in order to organize the state-wide response to the disaster, to cut through red tape, and to take actions that cross jurisdictional lines among local government bodies.

Throughout Chapter 323, the focus of the statute is on the role of the governor as the lead manager of the state’s emergency response:

Powers of governor

323.10  Declaration by governor. The governor may issue an executive order declaring a state of emergency for the state or any portion of the state if he or she determines that an emergency resulting from a disaster or the imminent threat of a disaster exists. If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.

323.12  Governor; duties and powers; out-of-state assistance.

(1)  Ongoing duties. The governor shall do all of the following:

(a) Review orders establishing or altering emergency management areas.

(b) Review state emergency management plans and modifications to the plans.

(c) Determine responsibilities of state departments and independent agencies with respect to emergency management and by order direct those departments and agencies in utilizing personnel, facilities, supplies, and equipment before and during a state of emergency.

(2) Ongoing powers. The governor may do all of the following:

(a) On behalf of the state, enter into mutual aid agreements concerning emergency management with other states.

(b) Accept from any source gifts and grants including services for emergency management purposes and may authorize the state and local units of government to receive such gifts and grants. When grants require participation by a local unit of government, the state may transfer title to equipment acquired through an agreement between participating local units of government.

(c) If the governor determines that a condition of civil disorder or a threat to the safety of persons on state property or damage or destruction to state property exists, he or she may, without declaring an emergency, call out the state traffic patrol or the conservation warden service or members of that patrol or service for use in connection with the threat to life or property.

(3) Duties during an emergency. During a state of emergency declared under s. 323.10, the governor shall issue orders, delegate such authority as is necessary to the administrator, and direct the division to coordinate emergency management activities.

(4) Powers during an emergency. The governor may do all of the following during a state of emergency declared under s. 323.10:

(a) Declare priority of emergency management contracts over other contracts, allocate materials and facilities in his or her discretion, and take, use, and destroy, in the name of the state, private property for emergency management purposes. The governor shall keep records of that action. Those records shall be evidence of a claim against the state. The claim against the state shall be referred to the claims board under s. 16.007.

(b) Issue such orders as he or she deems necessary for the security of persons and property.

(c) Contract on behalf of the state with any person to provide, on a cost basis, equipment and services to be used to respond to a disaster or the imminent threat of a disaster.

(d) Suspend the provisions of any administrative rule if the strict compliance with that rule would prevent, hinder, or delay necessary actions to respond to the disaster.

Section 310.12(b)(3) expressly gives the governor the “duty” during a state of emergency to “issue orders, delegate such authority as is necessary to the administrator, and direct the division to coordinate emergency management activities.” The legislature could not have been more clear that its intent was to give the governor the complete authority to manage the entirety of the emergency response effort, and to avoid conflicting claims of authority within the executive branch during an emergency.

The explicit powers granted to the governor during an emergency are breathtakingly broad and include the power to give state contracts priority over pre-existing private contracts and even the power to take or destroy private property. When performing his duty to manage the emergency response effort of the state, the governor’s power “to issue such orders as he or she deems necessary for the security of persons and property” should be read to encompass at least the same broad power possessed by the Department of Health Services to forbid public gatherings that risk the spread of communicable disease.

E.       Serious Constitutional Concerns Arise if the Statute is Interpreted Differently

If the Wisconsin Supreme Court adopted an interpretation of section 323.12(4)(b) that resulted in the governor having less authority during a state of emergency than his subordinate officer, that interpretation would raise serious constitutional concerns. The Wisconsin Legislature cannot vest less authority in the governor than it vests in the Secretary of the Department of Health Services. The DHS is an administrative department of the executive branch; DHS is not an independent agency. The governor is the head of the executive branch. In such circumstances, any attempt by the legislature to bypass the governor and place executive power outside of the governor’s reach would violate the separation of powers contained in the Wisconsin Constitution. Section 323.12(4)(b) should not be interpreted in a way that would lead to such a result.

Attorney Daniel Suhr has argued that in Wisconsin our state constitution creates a “unitary governor.”  He argues that all executive power is vested in the governor by the Wisconsin Constitution. As he puts it: “The governor IS the CEO of Wisconsin government. And all officials in executive agencies are responsible for implementing the agenda which the people of Wisconsin elected the governor to advance.” Under his interpretation of the Wisconsin Constitution, all policy-making positions within the executive branch must be in line with the governor’s policy agenda.

There is reason to disagree with Mr. Suhr’s conclusion when it comes to independent agencies vested with executive powers by the legislature. Wisconsin has a long progressive history that is reflected in our state constitution and our laws. As a result, the Wisconsin Legislature has often adopted statutes that create both independent state-wide offices and independent agencies that are free from control by the governor. The existence of these types of executive bodies reflect a progressive tradition in Wisconsin that seeks to prevent any one person from accumulating too much power and that is intended to preserve the people’s power to influence government offices.

However, when it comes to the administrative departments that report to the governor, it is correct to say that Wisconsin has a “unitary governor.”  The structure of the executive branch is outlined in Chapter 15 of the Wisconsin Statutes:

15.001  Declaration of policy.

(1)  Three branches of government. The “republican form of government” guaranteed by the U.S. constitution contemplates the separation of powers within state government among the legislative, the executive and the judicial branches of the government. The legislative branch has the broad objective of determining policies and programs and review of program performance for programs previously authorized, the executive branch carries out the programs and policies and the judicial branch has the responsibility for adjudicating any conflicts which might arise from the interpretation or application of the laws. It is a traditional concept of American government that the 3 branches are to function separately, without intermingling of authority, except as specifically provided by law.

(2)  Goals of executive branch organization.

(a) As the chief administrative officer of the state, the governor should be provided with the administrative facilities and the authority to carry out the functions of the governor’s office efficiently and effectively within the policy limits established by the legislature.

. . .

15.01  Definitions. In this chapter:

. . .

(5) “Department” means the principal administrative agency within the executive branch of Wisconsin state government, but does not include the independent agencies under subch. III.

. . .

15.02  Offices, departments and independent agencies. The constitutional offices, administrative departments and independent agencies which comprise the executive branch of Wisconsin state government are structured as follows:

(1)  Separate constitutional offices. The governor, lieutenant governor, secretary of state and state treasurer each head a staff to be termed the “office” of the respective constitutional officer.

(2)  Principal administrative units. The principal administrative unit of the executive branch is a “department” or an “independent agency”. Each such unit shall bear a title beginning with the words “State of Wisconsin” and continuing with “department of….” or with the name of the independent agency. A department may be headed by a constitutional officer, a secretary, a commission or a board. An independent agency may be headed by a commission, a commissioner or a board.

. . .

15.05  Secretaries.

(1)  Selection.

(a) If a department is under the direction and supervision of a secretary, the secretary shall be nominated by the governor, and with the advice and consent of the senate appointed, to serve at the pleasure of the governor.

This statutory allocation of executive power by the legislature is fully consistent with the proper constitutional authority possessed by the governor over the use of executive power by the heads of administrative departments. When engaged in the process of interpreting the delegation of emergency power to the governor under section 323.12(4)(b), the Wisconsin Supreme Court should resist any temptation to re-allocate executive powers contrary to the manner in which they are allocated under the Wisconsin Constitution.

F.       The Court’s Failure in Wisconsin Legislature v. Evers

The failure of the Wisconsin Supreme Court was not the partisan nature of their opinion, although some of their actions, such as selectively accepting briefs from certain non-parties and not from others, give the majority opinion a distinctly partisan cast. The primary failure of the Court’s majority was its dogged determination to read the language of section 323.12(4)(b) in isolation. The majority opinion demonstrates that at least four members of the Wisconsin Supreme Court are the prisoners of an ideology that is limiting and, in a time of emergency, wholly inadequate.

The question facing the Court called for a comprehensive review of the scope of gubernatorial emergency power under the law. But the majority restricted its gaze to two brief sections of the Emergency Management statute. Why would the majority ignore so many sources of statutory authority and over 100 years of relevant legal history?

Ilya Shapiro characterized the differing ideological views that judges brought to this lawsuit in the New York Times:

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Republican-appointed judges tend to want to apply the law as written, while Democrat-appointed ones want to see ‘justice’ done, even if it means bending the rules,” he said. “In the Wisconsin context, Republican-affiliated judges would leave any decision to delay the election or change its operation to the Legislature, while Democrat-affiliated ones want to fix the problem themselves.”

“I agree with the former approach,” Mr. Shapiro said, “because, even in a pandemic, we shouldn’t cast aside the rule of law or the separation of powers.”

Mr. Shapiro’s characterization of differing judicial perspectives is as wrong as it is self-serving.

First, the majority opinion does not promote the separation of powers as that term is properly understood. The leading case of the United States Supreme Court involving the use of emergency power by the executive branch is Youngstown Sheet & Tube Co. v. Sawyer (1952). Justice Robert Jackson’s concurring opinion provides a roadmap for how the separation of powers should be preserved during an emergency. Under the approach he advocates, the role of the judiciary is not to police strict boundaries between the political branches of government, but rather to encourage the legislative branch and the executive branch to work together when crafting the response to an emergency. Applying this approach, the U.S. Supreme Court has held that presidential action taken without explicit authority does not violate the separation of powers so long as other statutory provisions indicate a congressional acceptance of a broad scope of executive power under similar circumstances (Dames & Moore v. Regan (1981)).

Governor Evers clearly observed the separation of powers under the approach in Youngstown Sheet & Tube Co. v. Sawyer. The governor attempted to work collaboratively with the legislature up until the last possible minute. When the governor acted, he crafted his order using a broad executive power to restrict public gatherings during public health emergencies that has been accepted by the legislature for over 100 years. It is true that no explicit statutory provision grants the power to prohibit people from gathering at a polling place on election day, but the power to prohibit public gatherings in general is well accepted. The principle of separation of powers does not require the governor to forego taking emergency action simply because the legislature refuses his attempt to work collaboratively.

Second, the four Justices in the majority demonstrate an unflinching adherence to a radical form of textualism. They approach their interpretative task by confining themselves to the words of one statutory provision. The alternative to their textualist approach is not – as Shapiro suggests – a pragmatic embrace of whatever interpretation works to solve the problem before the court. The true alternative to radical textualism is to interpret the law in its entirety, and not to elevate one source of law over all others.

The majority was correct to begin their analysis with the scope of power delegated to the governor under the Emergency Management statute in Chapter 323. However, that is only one strand of the applicable law. The majority also should have given due weight to the extraordinarily broad emergency powers delegated to the Secretary of the Department of Health Services by Chapters 250 and 252 and to the role of the governor in overseeing the exercise of that power. The majority should also have considered the overall structure of the Emergency Management Act and how that statute increases the governor’s authority over the Department of Health Services during a declared emergency. Only a radical textualist would presume to define the scope of the governor’s emergency powers without stepping back and considering how all three of these statutes relate to one another.

Radical textualism is an interpretive approach that takes the words of one statutory section or one constitutional provision in isolation, and spins a meaning of the text that may be defensible when viewed in isolation but which oftentimes fails when that meaning is examined in a broader context.  Critics charge that radical textualism is nothing more than a mask for obscuring the political preferences of judges, because words taken in isolation can almost always be twisted in order to support a judge’s favored meaning. However, whatever the faults of radical textualism, it is clearly an interpretive approach that is ill-suited to defining the scope of executive power in a public health emergency.

There is a reason why the statutory scheme for dealing with emergencies related to outbreaks of communicable disease adopts a breathtakingly broad delegation of executive power. The legislature recognized that a “before the fact” listing of specific powers to be granted to the governor could never include all of the powers that might be necessary in order to respond to unforeseen disasters.  The legislature also recognized that the particular response taken by the governor would largely depend on the way in which the future public health emergency unfolded and developed – something that could never be anticipated in advance. And the legislature knew that allowing others to second-guess the specific course of action taken by the governor during an emergency would only foster conflict and confusion during a time when uncertainty can cost lives. A broad grant of authority to the governor also precludes possible legal challenges that might tempt the courts to engage in judicial second-guessing. Any interpretation of the governor’s emergency power that begins with the assumption that such powers don’t exist unless they are explicitly spelled out in the text of the statute undermines the entire purpose of emergency powers.

In the abstract, one might argue that it is usually preferable to interpret all legislative delegations of power to the executive branch in a narrow fashion, in order to preserve the legislature’s primacy in determining the policy choices reflected in state law.  However, in the context of an outbreak of a deadly communicable disease, taking a narrow interpretive approach to delegated authority is contrary to the intent of the Wisconsin Legislature. When crafting a scheme that outlined the executive branch response to a state of disaster, the legislature rationally chose to give extremely broad powers to the governor to issue orders that would respond to the needs of the moment. Four Justices on the Wisconsin Supreme Court have placed their own personal evaluation of the proper balance of power during an emergency over the evaluation made by the legislative branch. This conclusion should be obvious, but apparently these justices cannot see beyond the limitations of their self-imposed interpretive approach.

Governor Evers had the statutory and constitutional authority to issue Executive Order 74.

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