What’s the Plan if the Wisconsin Supreme Court Shuts Down Safer at Home?

If the GOP lawmakers challenging Gov. Tony Evers’ plan have one of their own, they haven’t shared it with the public.

Gov. Tony Evers’ administration is rightfully nervous that the Wisconsin Supreme Court might put a stop to Safer at Home.

The simple fear is that a fast reopening to the state could undo a lot of the containment progress that’s already been made: Wisconsin has the second-fewest cases in the Midwest, and Minnesota’s case count is trending upward faster than Wisconsin’s.

The conservative-led Supreme Court is set to hear arguments Tuesday in Republican legislators’ lawsuit that alleges the Evers’ administration overstepped its bounds by closing businesses with Safer at Home, which went into effect in mid-March and is currently set to expire on May 26. The suit also argues that the lockdown can’t last longer than 60 days without legislative approval. Evers’ lawyer says it can because of the ongoing public health emergency.

Jim Steineke

“We just feel like Gov. Evers went beyond his 60-day authority under the emergency declaration, and is asserting that they can make unilateral decisions indefinitely without the Legislature,” Assembly Majority Leader Jim Steineke said told FOX 11.

Evers has been making decisions as if his every order wasn’t being challenged and could be annulled. His response to the challenges on Monday was “What is their plan?”

Even while top Republicans have said the stifling of the economy is doing more harm than the virus would be if unchecked, they haven’t presented a plan to replace Evers’ Safer at Home and The Badger Bounce Back, a reopening phased to benchmarks for case count, testing and other factors.

Evers met with legislative leaders Monday evening, but it’s still not clear what was decided on as both sides attested they were looking for common ground.

Robin Vos

“It was a good initial discussion. We talked about issues important to our constituents and brought up the possibility of a regional approach to safely reopening the state,” Assembly Speaker Robin Vos said in a statement Monday evening, continuing to say that Wisconsin should plan to reopen regionally, something state health experts have warned against. “What’s needed for Wisconsin right now is a bipartisan reopening strategy that is safe, gradual and regional. We shouldn’t have a Republican plan or a governor’s plan, we need a Wisconsin plan that the entire state can get behind.”

The present animosity between the two parties, at least in the public eye, has largely been borne out of a supposed lack of communication from the governor’s office. Legislators have said they often have found out about rule changes told at the same time as the news outlets and the public. Not only has that left some of them feeling left out, it’s left them wondering what has gone on behind closed doors.

“What’s actually right? I don’t have that answer 100%. But I want to understand what the governor is using and his metrics, because I don’t think he has a clue what he’s using. We need to know what his numbers are,” says Sen. Van Wanggaard, R-Racine. “If it was me and I was the governor, I would want there to be as many people as possible involved in the process as there couple possibly be.”

So, what happens if Safer at Home is overturned?

The Wisconsin Supreme Court could rule on the order as soon as Tuesday evening.

“It’s extremely high stakes,” says Ryan Nilsestuen, the governor’s chief legal counsel, as there isn’t any further appeal. “The Wisconsin Supreme Court is the court of last resort. … There is no recourse from whatever decision the court makes.”

If the court strikes down the order wholesale, Nilsestuen says, there will likely be an “expedited” six-day rule-making process within the Legislature about what to do next. And if the Republicans who control the Legislature have a plan about what to do next, they haven’t shared it yet.

That’s why Nilsestuen called the lawsuit “reckless and dangerous,” while attesting that “We do think the facts are on our side, the law is on our side and past decisions are on our side” in hopes that the court will side with the governor.



Adam is a journalist who recently returned to his Wisconsin home after graduating from Drake University in December 2017. He interned with MilMag in the summer of 2015 and has been a continual contributor ever since. Follow him on social media @Could_Be_Rogan