Lawyer's View: Here's some truth behind Wisconsin's Supreme Court stay-at-home ruling

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Brandon Engblom

On May 13, the Wisconsin Supreme Court struck down the state’s stay-at-home order on the fundamental concepts of American freedom and ordered liberty. Right?

Nope, not even close. In reality, Wisconsin's approach to the COVID-19 health crisis has been different from other states. While Gov. Tony Evers issued a declaration of emergency, the stay-at-home order and other restrictions were created by the Wisconsin Department of Health Services under its rulemaking authority. However, if an administrative agency is going to promulgate rules (which are as legally binding as traditional statutes), the agency must follow specific processes and include procedural safeguards to ensure the agency is not going beyond the authority granted to it by the legislature. The Wisconsin Department of Health Services failed to do that.

On May 13, the Wisconsin Supreme Court struck down a large portion of the emergency orders issued by the Wisconsin Department of Health Services in a 161-page ruling because the emergency rules generated by the department did not comply with the correct rulemaking process. Had Wisconsin Gov. Evers issued the stay-at-home order himself, as Minnesota Gov. Tim Walz did, under the governor's inherent emergency powers, it is doubtful the state Supreme Court would have had the grounds to strike down Wisconsin’s stay-at-home order.

In fact, nothing stops Gov. Evers from reissuing the same orders now under the authority of his office. Moreover, nothing prevents local counties from issuing the same restrictions under their own powers to regulate health and public safety.

In short, the current ruling by the court is the product of a narrow and technical legal issue rather than a broad argument about our fundamental freedoms and general liberties.


Brandon Engblom is an associate attorney for the Ledin, Olson & Cockerham firm in Superior.

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