New study examines Wisconsin’s emergency powers laws, provides recommendations for reform
The News: A new study from the Wisconsin Institute for Law & Liberty (WILL) makes the case that Wisconsin’s antiquated emergency powers statutes are in urgent need of reform. The report, titled More Than “A Little Danger:” Reforming Wisconsin’s Emergency Powers After COVID-19, provides an in-depth examination of the state of Wisconsin’s emergency powers laws and how they have failed to protect liberty and the separation of powers during the COVID-19 pandemic.
The Quote: WILL Deputy Counsel, Dan Lennington, said, “Governor Evers has proven that a determined and unaccountable executive can abuse Wisconsin’s emergency powers laws in such a way that the legislative branch is rendered inoperative. As we emerge from the COVID-19 pandemic, reforming Wisconsin’s emergency powers laws ought to be a top priority.”
Diving Deeper: For much the last year, Wisconsin’s regular constitutional order has been suspended as a result of consecutive statewide public health emergency orders issued by Governor Tony Evers in response to the COVID-19 pandemic. A new study by WILL Deputy Counsel, Dan Lennington, provides a first-of-its-kind examination of Wisconsin’s emergency powers laws, the dangers to liberty and the rule of law, and recommendations for reform. Some of the key findings from More Than “A Little Danger:” Reforming Wisconsin’s Emergency Powers After COVID-19, include:
- Wisconsin’s antiquated emergency-powers statutes grant the governor and other officials seemingly limitless powers. Relatively unchanged since the 1960s, Wisconsin state laws grant the governor and other officials seemingly limitless emergency powers to issue any orders they deem “necessary” to respond to a disaster or a public-health emergency like COVID-19.
- During COVID-19, Wisconsin officials have wielded this power in extraordinary ways. State officials have issued over 50 emergency orders and kept Wisconsin in a state of emergency for more than 300 days. The scope of many of these orders have been extremely broad.
- Existing law does not adequately protect individual liberties or the separation of powers. This current legal framework permitting rule-by-order amounts to a violation of the basic civil liberties of all Wisconsinites, and a substantial transfer of legislative power to state and local officials, with very little oversight or participation by legislative bodies.
- Wisconsin’s outmoded statutes are behind the curve. Other states provide more legislative-branch participation in the exercise of emergency powers and in some cases require affirmative ratification of emergency orders by the relevant legislative body.
Recommendations for Reform: With Wisconsin’s emergency powers laws proving inadequate to the task of protecting liberty and ensuring a proper role for the legislative branch, WILL is recommending the following reforms:
- Limit emergency declarations from 60 days to 30 days.
- Require orders to be promulgated as rules to ensure proper legislative oversight.
- Impose legislative oversight of local emergency orders.
- Explicitly and categorically define what types of conduct cannot be regulated by emergency orders and provide for judicial review of emergency orders.
- Harmonize and reform enforcement powers.
- Allow local units of government to opt-out of statewide health orders, subject to override by the Wisconsin legislature.
- More Than “A Little Danger:” Reforming Wisconsin’s Emergency Powers After COVID-19, Dan Lennington, February 2021
- “Evers’ COVID-19 executive orders have highlighted flaws in Wisconsin law,” Rick Esenberg and Dan Lennington, The Cap Times, March 1, 2021