Civics: Wisconsin Emergency Powers and Their Limits

Rick Esenberg:

Wisconsin Governor Tony Evers’ response to the threat of COVID-19 has included cancelling school indefinitely throughout the state, closing bars and restaurants except for take-out service, and tight restrictions on social gatherings to fewer than 10. The state’s response, like the crisis itself, has moved with enormous speed. At the behest of guidance from the Centers for Disease Control, gatherings and businesses that were permitted on Monday were barred by Tuesday. Is all this legal? Let’s walk through it.

What does the law say?

Can a governor effectively suspend economic activity in a state and impose strict restrictions on public life? The answer is not clear. In our federal system the power to order this type of emergency shutdown has traditionally been reserved to the states. Wisconsin law is not unique, and the governing principles here do not differ dramatically from those that exist elsewhere.

Wisconsin law grants the Department of Health Services (DHS) the authority to “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” and “authorize and implement all emergency measures necessary to control communicable diseases.” Other statutes also provide authority including the Governor’s power to declare a public emergency and, in such circumstances, to “issue such orders as he or she deems necessary for the security of persons and property.” Other states have similar provisions.

Upon reading these statutes, you might conclude that the Governor can do whatever he wants. But you would be wrong. Any action the Governor takes must also comply with the state and federal constitutions. And there are at least four potential constitutional challenges. Each would have to overcome centuries of law supporting the right of governments to impose quarantines to prevent the spread of disease — recall the story of Typhoid Mary — and even the cordon sanitaire — the centuries old practice of preventing the movement of people to stem the spread of disease. But each would be buoyed by the unprecedented breadth and indeterminate length of the Governor’s order. In short, we have never seen anything like this.