Already, Republican legislators and others are hoping to produce lawsuits to counteract Governor Tony Evers’ extension, with alterations, of his original “Safer at Home” executive order to protect people in Wisconsin from the deadly coronavirus pandemic.
Rick Esenberg, a conservative legal expert and the President and General Counsel of the Wisconsin Institute of Law and Liberty, gives what he claims is the basis for such a possible legal challenge.
Esenberg told WTMJ’s Steve Scaffidi Show that Governor Evers owns the power to declare a public health emergency for 60 days. The current extension moves it to 62 days – May 26, but the state legislature can revoke the current declaration as well.
“That power is subject to limitations. When the Governor declares a public health emergency, it can only last for 60 days. It has a shelf life. At any time during that 60 days, the legislature can pass a joint resolution (that) doesn’t have to be signed by the governor…which eliminates the public health emergency,” said Esenberg.
“The only way that the public health emergency can exist beyond the 60 days is by joint resolution by the legislature,” he says.
“The legislature has to agree, ‘Yes, there is a public health emergency. Yes, we are going to let you extend it past 60 days.’ “
Esenberg says lawsuits can come against the governor’s executive order from multiple sources.
“It can come from anywhere, from the legislature who would be arguing, ‘Look, we’re not saying things have to be any particular way, but you have to consult with us.’ It can come from the taxpayer. Any taxpayer can sue if they believe any government money is being spent unlawfully,” said Esenberg.
“Any citizen who is impacted by the terms of this order can say the order is unlawful.”
Ultimately, such arguments between the Governor, currently a Democrat, and the Repubilcan-controlled legislature involve a power struggle.
“None of this is precisely about social distancing…it’s not that everything should be opened up, it should be ‘Who gets to decide?’ ” said Esenberg.
If there is to be an extension beyond 60 days, Esenberg believes both sides need to sit down and agree to a deal.
“After we had a 60 day period, is it reasonable to say the governor must now work with the people’s elected representatives in order to determine what comes next, rather than acting unilateraly? I think the law compels him to do so,” said Esenberg.
“Good public policy compels him to do so. If the people of this state are going to act under these conditions, there needs to be a broad buy in of what those conditions are. In this particular circumstance, it would have to be a bipartisan buy-in.”