'Extremely high stakes': Wis. Supreme Court to hear arguments Tuesday on Safer at Home extension

Posted at 5:31 PM, May 04, 2020
and last updated 2020-05-04 19:37:45-04

MILWAUKEE — The Wisconsin Supreme Court will hear arguments Tuesday to ultimately decide the fate of Gov. Tony Evers’ stay-at-home order extension.

Republicans in the state legislature are suing Wisconsin’s Department of Health Services for an abuse of power. However, a Marquette University Law School professor believes the Department of Health Services is operating within its authority.

The Wisconsin Supreme Court is being called on by republicans in the legislature for the second time during the ‘Safer at Home’ order. This time, they’re arguing the restrictions have gone too far, especially for businesses deemed non-essential.

“Republicans in the state legislature are asserting that when you had the stay at home order extended for a longer period of time, that this constituted law-making,” said Marquette University Law School professor Ed Fallone.

Fallone believes DHS has the authority to make these decisions alone to protect public health during the coronavirus pandemic.

“It’s limited in time, it’s limited to the core powers of the public health department which is to respond to an outbreak of communicable disease and that this is clearly not law-making at all,” Fallone said.

Evers declared a public health emergency in mid-March, designating DHS as the lead agency to respond. However, under Evers’ direction, DHS extended the stay at home order past Memorial Day.

“It’s extremely high stakes,” said Evers’ Chief Legal Counsel Ryan Nilsestuen.

On Monday afternoon, Nilsestuen said there’s no recourse if the state’s highest court sides with the legislature. The Wisconsin Supreme Court is currently controlled 5-2 by conservative-leaning justices.

“Whatever decision they make will be binding, that’s why we said this is so reckless and dangerous,” Nilsestuen said.

Republicans in the legislature said if they win the case, they will get to have a say in a phased approach to allow businesses to reopen.

State Supreme Court oral arguments begin at 10:00 a.m. Tuesday via videoconference. Both sides will get 45 minutes to make their case. The state Supreme Court is expected to make a quick decision.

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