MADISON – Conservative justices on the Wisconsin Supreme Court cast doubt during arguments Tuesday about the power of Gov. Tony Evers’ health secretary to issue a “safer-at-home” order closing most nonessential businesses in the state.

The court held an hour-and-a-half of oral arguments on Tuesday, May 5 in a case brought by Republican legislative leaders. They want the court to block the order issued by Department of Health Services Secretary Andrea Palm, arguing that Palm exceeded her authority in issuing the stay-at-home order that’s set to run until May 26.

One justice compared the order to “tyranny” – while the Evers administration argued lives were and are on the line.

“People will die if this order is enjoined with nothing to replace it,” said Colin Roth, Assistant Attorney General of Wisconsin.

Conservative justices zoomed in on Safer at Home’s legal foundation.

“Where in the Wisconsin constitution did the people confer authority on a single, unelected cabinet secretary to compel almost six million to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the legislature, without the consent of the people?” asked Justice Rebecca Bradley.

“That legislative intent that grants DHS to do whatever is necessary to combat a novel, deadly communicable disease,” Roth said.

State law does say DHS may “forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics” – and “may authorize and implement all emergency measures necessary to control communicable disease.”

Health Services Secretary-designee Andrea Palm issued Safer at Home. Breaking it could lead to 30 days behind bars and a $250 fine.

“She can all by herself sit down at her computer keyboard, write up a description of behavior and make it criminal?” asked Justice Daniel Kelly.

“What I would say, your honor is the legislature created this statutory scheme itself,” Roth said.

Republicans say the order goes too far – and skips legislative oversight of state statute chapter 227.

“Every day that DHS and this administration proceeds as if they are not subject to 227, we are irreparably harmed as the entity that created DHS and gave it its powers in the first place,” said Ryan Walsh, attorney for the Wisconsin Legislature.

Republicans suggest the court give DHS six days to come up with a new rule with later legislative oversight.

The cities of Racine and Milwaukee joined briefs supporting the order. Wisconsin’s Chamber and the Tavern League filed briefs against.

Wisconsin Attorney General Josh Kaul released the following statement regarding the litigation of the Safer at Home order:

“The Legislature’s lawsuit, which asks for Safer at Home to be struck down, is beyond reckless and endangers the health and security of Wisconsinites,” said AG Kaul. “Although the Legislature asked for a ‘pause’ before the relief it seeks is issued, it is arguing that Safer at Home is invalid right now. Rather than waiting for a rulemaking process that it concedes will take more than a week to play out, the Legislature must act immediately either to extend the emergency declaration or to pass legislation that will help keep Safer at Home in place so Wisconsinites aren’t left without protection from the law in midst of a pandemic that has already taken the lives of hundreds of Wisconsinites and tens of thousands of Americans.

“Instead of prematurely declaring victory, crossing our fingers, and hoping for the best, we must continue working to stamp out the coronavirus with a plan based on input from public health professionals. As we do so, it’s vital that policymakers recognize that fighting the coronavirus doesn’t mean choosing between public health and economic growth. They go hand in hand. For the economy to be fully, successfully, and durably reopened, Wisconsinites must have confidence that they can go to work and shop safely, and we must avoid a resurgence of exponential growth of COVID-19 cases. I hope the Legislature will work constructively with the executive branch to protect the health and wellbeing of Wisconsinites and to ensure that we have the resources in place that will allow for the reopening of the economy be as successfully as possible.”

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