MADISON – The GOP leaders of Wisconsin’s Legislature said Wednesday they were deferring to Democratic Gov. Tony Evers for now on how to respond to the coronavirus crisis but signaled they would not have limitless patience.
Senate Majority Leader Scott Fitzgerald of Juneau and Assembly Speaker Robin Vos of Rochester said they were limiting their questioning of Evers because of the scope of the worldwide pandemic. But they raised concerns about the prospect of forcing businesses to close and limiting people’s movement for an extended period.
“We should not tolerate this for no good reason and we certainly should not tolerate it for a long period of time unless it’s in the public’s best interest,” Fitzgerald said. “And that’s the balance test we’re working through right now.”
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The two legislative leaders have clashed with Evers repeatedly during his 15 months as governor and have repeatedly questioned Evers’ actions. But on a Wednesday call with reporters, the pair acknowledged Evers was making decisions no governor has had to make before and expressed support for much of the governor’s response to the outbreak.
But they also made clear that civil liberties were on their minds.
“Fundamentally, I think that our entire republic is based on the concept of three co-equal branches (of government) and we have temporarily loaned the ability to make decisions without the same due process that we go through to the executive in an emergency,” Vos said. “And that is for a finite amount of time and in a finite amount of circumstances.”
State health officials said this week without Evers’ orders to limit the public’s interaction, research by Impersial College London and Harvard University has projected cases of the coronavirus could reach 22,000 within two weeks and lead to up to 1,500 deaths.
The health care system in the state does not enough have supplies to care for the expected surge of patients, Department of Health Services Secretary Andrea Palm has said and without fewer infections, the health care system would be overwhelmed.
Possible relief package
Evers and legislative leaders are working on legislation to respond to the coronavirus outbreak as hospitals run out of protective gear for nurses and doctors and brace for the possibility of running out of life-saving machines to help patients breathe.
The state leaders also may consider providing some relief to restaurants and bars that were forced to close, but Evers, Fitzgerald and Vos so far have not answered questions about the content of potential legislation or a price tag.
Fitzgerald and Vos said whatever legislation state lawmakers pass will depend on a nearly $2 trillion package making its way through Congress.
Fitzgerald, who is running for Congress, called that package essential.
“I think this is an issue that obviously has been created because the government is asking the private sector to shut down, and this is not like some of the other crises that have existed or occurred,” he said. “This is the assistance that they probably need to survive in the short period of time.”
Vos also said he’s considering suspending a one-week waiting period before people may receive unemployment benefits — an idea Evers has championed.
Just in the last week, more than 100,000 Wisconsin workers have filed unemployment claims as scores of businesses close or lay off employees as more and more people choose to stay inside under Evers’ orders.
Fitzgerald and Vos did not say when they wanted to bring the Legislature into session.
Fitzgerald said he is considering holding a virtual Senate session for the first time in the state’s history and he tested how it would work on Tuesday. Vos said he hoped to have the Assembly meet in person but left open the possibility of a virtual session for his chamber.
Lawmakers can weigh in on emergency
Not all Republicans are as comfortable as Vos and Fitzgerald with Evers’ emergency orders.
Sen. David Craig of Big Bend introduced legislation this week that would require Evers to get legislative approval before issuing such edicts.
“The Executive Branch does not have unchecked authority in such a crisis,” Craig wrote to his colleagues in a memo seeking support for the bill. “To impair fundamental rights — as gathering bans, etc. do — the government must have a compelling state interest to do so AND must do so in a narrowly-tailored and least restrictive means possible under the constitution.”
Craig’s bill would require legislative approval of any statewide order to stay home to prevent infectious diseases from spreading. It also would require Evers to get approval from the Legislature to extend emergency declarations beyond 30 days.
Evers would be required to provide lawmakers with a report detailing reasons that justify issuing a ban on large gatherings and a report on arrests made for violating such bans.
Evers this week ordered millions of people to stay at home as much as possible under the powers he has during emergencies. It was the most sweeping of a dozen emergency orders he has issued that have closed schools, shuttered bars and limited restaurants to takeout and delivery.
Vos and Fitzgerald found fault with Evers for initially rolling out his plan without giving the public details on what activities would be exempted. But they had only minor criticisms of the substance of the stay-at-home order he ultimately issued.
Under state law, Evers can declare a health emergency for up to 60 days. The emergency declaration can continue after that only if lawmakers sign off on it.
Vos said he hoped the emergency would last less than 60 days. Lawmakers will evaluate the situation if Evers believes it should continue after that.
“Once we get past that 60 days, we have to see a very clear-cut reason” to continue it, Vos said.
Madison attorney Lester Pines said Evers could find a workaround if he needs to continue the emergency response for more than 60 days and Republican lawmakers won’t agree to do so.
“The governor could just issue a new order,” Pines said.
That could spark a legal fight, but Pines said he believed Republicans would feel pressure to work with Evers during a historic pandemic.
“I think they would get a tremendous amount of pushback from mayors and county executives across the state (if they halted the governor’s emergency powers) because they’re dealing with it on the front lines,” Pines said.
“(But) when you have people who appear to not believe in science then it’s really hard to predict what they’ll do in this kind of emergency.”
Pines represents Evers in a lawsuit over lame-duck laws Republicans approved in 2018 to limit his authority. He doesn’t represent Evers on other matters, such as the scope of his emergency powers.
The head of the conservative Wisconsin Institute for Law & Liberty published a legal analysis last week that argued Evers’ emergency powers could face constitutional challenges, particularly if the pandemic persists for a long time.
Strong arguments could be made that Evers’ actions violate the rights to free speech, due process, peaceably assemble and worship as one chooses, wrote WILL’s president, Rick Esenberg. Evers’ orders shutting businesses could also be construed as unconstitutionally taking something of value without fair compensation, he argued.
Such arguments have a tough time succeeding in the near term but could gain traction as time goes on, he argued.
“As the crisis wears on, the tension between our constitutional norms and life lived on an emergency footing will become more acute,” he wrote. “The longer they last, the more burdensome these restrictions become and, depending on the progress of the virus, the case for imposing them may grow weaker.”
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.
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