Statement: Wisconsin governor tries to sidestep legislature, PLF bill would restore constitutionality to emergency powers

February 5, 2021: Within an hour of the Wisconsin Legislature ending Gov. Tony Evers emergency order through the proscribed legislative procedure, the governor reissued the same emergency order on Thursday. Wisconsin law provides that emergency orders cannot extend past 60 days and allows the legislature to end emergency orders by joint resolution.

“While the governor’s recycled emergency order is dubious at best, the Wisconsin Legislature and other state legislatures across the country should squash governors’ legal gymnastics by expressly prohibiting governors from issuing the same or substantially similar orders that expired or were disapproved by the legislature,” said Joe Luppino-Esposito, Pacific Legal Foundation’s deputy legal policy director. “Governors have been ruling unilaterally for nearly ten months using emergency powers. The Wisconsin Legislature went through the legal process to take its constitutional responsibility to make policy in response to COVID-19. The governor’s attempt to retain unilateral power should be rejected.”

PLF is working with state legislatures to place safeguards on executive emergency powers. Those safeguards include:

1. Requiring emergency orders to be narrowly tailored.
2. Subjecting emergency orders to expedited judicial review.
3. Requiring statewide orders to be issued by the governor.
4. Incentivizing the governor to call the legislature into an emergency session.
5. Sunsetting emergency orders in a reasonable amount of time unless ratified by the legislature.
6. Allowing remote participation for legislators to debate and vote on emergency orders.
7. Prohibiting governors from reissuing emergency orders that expired or that the legislature rejected.