WILL Amicus: Statewide Lockdown Extension Unconstitutional

Brief on behalf of small business owners takes on DHS Secretary’s authority to extend lockdown

The News: The Wisconsin Institute for Law & Liberty (WILL), on behalf of a group of Wisconsin small business owners, filed an amicus brief in support of the Wisconsin Legislature’s original action challenging the extension of the ‘Safer at Home’ order. WILL’s amicus brief takes on the authority of the Secretary of Wisconsin’s Department of Health Services (DHS) to issue an extension of ‘Safer at Home’ beyond the date of Wisconsin’s declared public health emergency.

WILL Clients: The amicus was filed on behalf a group of Wisconsin small business owners and entrepreneurs. These include:

  • Independent Business Association of Wisconsin (IBAW) – the leading advocacy group for small business in Wisconsin.
  • Double Decker Automotive – a Pleasant Prairie automobile repair shop, which even though it is deemed an essential business has been forced to reduce its hours of operation resulting in reduced pay to its employees.
  • Shear XCellence LLC – a Grafton hair salon operated by a licensed cosmetologist on an appointment only basis that has been shut-down as a result of the Safer at Home order.

The Quotes: WILL President and General Counsel Rick Esenberg said, “Governor Evers and his administration have taken an overly expansive approach to how power and decision-making is made in Wisconsin. It is vital that the Court reestablishes the proper balance to the separation of powers and prohibit rule of the state by the executive branch without input from the people and oversight by the Legislature.”

“We’re an essential business, so we are open. But since the ‘Safer at Home’ order, business has dropped by 50%,” said Erin Decker of Double Decker Automotive. “Basically we are just staying above water, but if this continues we could fall behind. We are just covering the bills that are required right now.”

Lacey Leute of Shear XCellence said, “People’s jobs are essential for their livelihood, it doesn’t matter what business you’re in. My hope is that people can actually get back to work and not lose their house, not lose their health insurance.”

WILL’s Argument: WILL’s amicus brief urges the Court to rule that the actions taken by Governor Tony Evers and DHS Secretary-designee Andrea Palm to extend the ‘Safer at Home’ order past the period of the state of emergency declared by the Governor are unconstitutional.

  • Nondelegation Doctrine: The extension of Wisconsin’s ‘Safer at Home’ order beyond the expiration of Governor Tony Evers’ public health emergency declaration is an unconstitutional delegation of authority to DHS Secretary-designee Andrea Palm. In short, if the Governor’s emergency powers expire, he cannot transfer, or delegate those same powers to authorize a statewide lockdown to his DHS Secretary.

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