As we complete the fourth week of lockdown, many Wisconsinites are wondering how long this extraordinary state of affairs can continue and how it might end. And what happens if the Governor and Legislature cannot agree on what happens next?

These questions were given fresh urgency today after DHS Secretary-designee Andrea Palm unilaterally determined that the “Safer at Home” order would continue through May 26, 2020, beyond the expiration of the Governor’s emergency declaration. But does the Evers administration really have the authority to order the widespread closure of churches, schools and businesses for another month without legislative input?

The following is an analysis of whether the Governor has that authority. While a stay-at-home order is subject to various constitutional limitations, it does not address what particular combination of legally permissible social-distancing provisions would be best.

Wisconsin under a Public Health Emergency

On March 24, Governor Evers issued Emergency Order #12, the so-called “Safer at Home” Order. The Order currently expires on its own terms at 8:00 a.m. on Friday, April 24, 2020, and cites two sources of legal authority. While it is on the joint letterhead of Governor Evers and Secretary-designee Andrea Palm, the Acting Secretary of the Department of Health Services (“DHS”), it is signed solely by Secretary-designee Palm, who claims the authority under Wis. Stat. 252.02(3) and (6). The Order also relies upon Governor Evers’ Executive Order #72 (declaring a public health emergency).

Then, with the expiration of Order #12 looming, on April 16, 2020, Secretary-designee Palm issued an updated version of the Order, Order #28, which takes effect upon the expiration of the first order and is itself set to expire at 8:00 a.m. on Tuesday, May 26, 2020. Like Order #12, Order #28 is on joint letterhead and signed solely by Secretary-designee Palm. Unlike Order #12, however, it does not rely on Governor Evers’ Executive Order #72; it relies on Wis. Stat. 252.02(3), (4), and (6).

The legal authority of Governor Evers and Acting Secretary-designee Palm

The Governor’s Emergency Declaration. Governor Evers issued Executive Order #72 on March 12, 2020. In that Order, he declared that a public health emergency existed in Wisconsin due to COVID-19 and designated the Department of Health Services (DHS) as the lead agency to respond to this emergency. Once an emergency is declared, the Governor has apparently broad power under Chapter 323 of our statutes. For example, Wis. Stat. 323.12(4)(b) says that, upon the declaration of a state of emergency, the Governor may issue “such orders as he or she deems necessary for the security of persons and property.” But these powers are not as extensive as they might first appear to be. They are subject to limits imposed by the state constitution and may be construed narrowly by the courts. For example, the Wisconsin Supreme Court recently held that Chapter 323 does not authorize the Governor to rewrite or suspend statutes and, therefore, ruled that he may not postpone an election set by state statute. Wisconsin Legislature v. Evers, Case №2020AP608-OA (Wis. Apr. 6, 2020)

In addition, declarations of an emergency have a shelf life. They may continue for sixty days unless they are revoked by a joint resolution of the Legislature. They may be extended beyond those sixty days only by a joint resolution of the Legislature. In other words, the emergency can be ended by the Legislature at any time and can continue after sixty days only if the Legislature votes to extend it. For this reason, the emergency declared by Executive Order #72 will end on May 11, 2020. Unless the Legislature passes a joint resolution extending the emergency, the Governor’s emergency powers under Chapter 323 will expire. The second Safer at Home order appears to recognize this fact; gone is any reliance on authority provided under Order #72.

DHS Powers Under Chapter 252But that is not the end of the matter. As noted earlier, Order #12 ordering Wisconsin residents to stay home subject to certain sections also invokes powers granted to it by Sections 252.02(3) and (6). And Order #28 adds reliance on 252.02(4).

Section 252.02(3) states that “[t]he department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics, and Section 252.02(6) states that “[t]he department may authorize and implement all emergency measures necessary to control communicable diseases.” Finally, sub. (4) authorizes Secretary-designee Palm to “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.”

The powers of DHS without a Public Health Emergency declaration

To begin, we must engage in some close legal reasoning. Courts must construe the powers conferred on the Governor by Chapter 323 and those conferred by on DHS by chapter 252 together. They cannot read one (chapter 252 giving DHS the power to, among other things, forbid public gatherings) in a way that renders the other (chapter 323 giving the Governor the power to declare a public health emergency) superfluous. If chapter 252 allows a gubernatorial appointee (Secretary-designee Palm) to do everything that the Governor can do under Chapter 323, only without the limits imposed on the declaration of a public emergency, then Chapter 323 becomes meaningless. That won’t happen.

So, we begin with at least a very strong presumption that the powers conferred by Chapter 252 are different than those authorized by Chapter 323. What might that mean? We have almost no case law construing these statutes. But if the Legislature ends the state of emergency, it is reasonable to conclude that DHS would lose its powers under section 252.02(6), since that section only refers to “emergency” measures. In fact, DHS may also lose its authority under section 252.02(3) and (4) to close schools and forbid public gatherings and the like because, even though those provisions do not reference an “emergency,” it would make no sense to grant broader powers to DHS than to the Governor. In addition, if there is no longer a public health emergency, there is no longer a legal basis to conclude that closing schools or forbidding public gatherings or issuing similar orders is required to “control outbreaks and epidemics” or to “control and suppress[] . . . communicable diseases.” Whether the Legislature would be correct to decline to extend the public health emergency is a different question. It is a matter of policy and not law which courts are very unlikely to second guess.

Thus, the bases for the Safer at Home Order (or any similar order) would likely not survive an end to the Governor’s emergency declaration.

Second, even if it could be argued that DHS’s powers under Section 252.02(3)-(4) could survive the Legislature’s refusal to extend a state of emergency, there would still be significant constitutional and statutory limitations on what DHS could lawfully do.

Let’s begin with limits imposed by the statute itself. Under sub. (3), DHS’s powers are specifically limited to closing schools and forbidding “public gatherings in schools, churches and other places.” Closing schools is relatively straightforward but what is a “public gathering?” The statute doesn’t tell us and the term has not been considered by the courts (DHS, by rule, does define “public building”, but not “public gathering”). At minimum, it cannot apply to small groups of friends and family.

Nor does it seem likely to apply to the operation of many businesses. Patronage of a retail store or business providing personal services would not normally be considered a “public gathering.” The functioning of an office or a factory would not typically be called a public gathering. A landscaper or painter coming to a home does not create a public gathering. In addition, under standard rules of statutory construction, the “other places” referred to must be places like schools and churches. Residences and private businesses are not in that category.

While counter-arguments can and will be made, it seems likely that, even if Secretary-designee Palm can continue to issue orders under Chapter 252 after Governor Evers may no longer issue them under Chapter 323, the public gatherings that she can forbid are likely to be limited to large assemblies.

At first glance, sub. (4) might appear to be a more open-ended grant of authority in terms of what it allows Secretary-designee Palm to regulate. But the power delegated by sub. (4) is bounded by the requirement that Secretary-designee Palm “promulgate and enforce rules or issue orders.” The promulgation of a rule involves substantial legislative oversight and an opportunity for public comment. And it would be absurd to allow Secretary-designee Palm to circumvent these safeguards by simply issuing orders. Consequently, the ability to issue an order is best read to allow Secretary Palm to enforce compliance with existing laws or rules, not to create new administrative powers out of whole cloth. In addition, the provision permitting DHS to take steps “for the control and suppression of communicable diseases” must itself be read consistently with sec. 252.03 and, to the extent that DHS seeks to forbid assemblages of persons, it may not go beyond the limitations implicit in the latter section.

Constitutional limits on emergency powers

That’s just the statutory analysis. In addition, any order issued by either Governor Evers or Acting Secretary-designee Palm are subject to constitutional limitations. As a general matter, the interest that the government seeks to advance must be balanced against the restriction on liberty and must be sufficiently narrow. That balancing will be most exacting when a restriction — here the forbidding of a public gathering, for example — burdens a fundamental constitutional right such as the freedom of speech and assembly, the right to worship, and the ability to maintain family relationships. Closing of schools in a way that impairs the right to a free and uniform public education may also be more closely scrutinized. Other fundamental rights may be implicated as well. This judicial scrutiny will ask not only if some restriction is warranted, but also whether the particular restriction is narrowly tailored to what is necessary to control the spread of the virus.

While courts will be more deferential to restrictions on public gatherings that do not implicate fundamental rights, the state will have to offer some justification. Whether a fundamental right is implicated or not, as time goes on, the underlying circumstances of the pandemic may limit whatever authority DHS retains. For example, when the Safer at Home Order was issued the number of COVID-19 cases in Wisconsin was rising rapidly. That is no longer true. Per the graph published by the New York Times on April 16, 2020, the curve in Wisconsin has flattened and even bent downward:

Whether or not the trend in the spread of the virus is due to social distancing or what turned out to be an overly pessimistic view of the virus’ likely course, the situation on the ground will eventually impact the constitutional analysis. While this may not be true today — courts are likely to be broadly deferential — a continuation of what seems to be the current trend will matter.

Finally, something must be said about the Legislature’s ability to delegate authority to Secretary-designee Palm and the Department of Health Services. Under what is known as the nondelegation doctrine, the Legislature may not simply give away its legislative power to an executive branch agency. It must either provide strict standards on its exercise or adequate procedural safeguards to ensure that the agency does not become a miniature Legislature. DHS’ ability to issue sweeping orders only vaguely authorized by broadly-worded statutes is far from clear.

Conclusion

My purpose here is not to suggest what “should” happen in the coming weeks. That question is separate from the legal analysis which goes to who decides and what constitutional limits they face. Nor is this a law review article or a brief to a court. I have provided a broad and general summary about which more can and will be said. But claims that the Governor — or his appointee — can unilaterally extend the current state of affairs indefinitely may very well be wrong. If that’s so — and I think it is — then the next phase of Wisconsin’s response to the virus not only has to comport with our Constitution, but has to be agreed to by the Governor and the Legislature. It has to enjoy bipartisan support. And in extraordinary times such as these, that is how it should be. Unfortunately, Governor Evers’ new Safer at Home Order eliminates that possibility.

Rick Esenberg is the founder and current President and General Counsel of the Wisconsin Institute for Law & Liberty