History and experience teach us that nothing is as attractive to a government official as power. And nothing makes it easier to take and keep than an emergency. Gov. Tony Evers has been giving us a master class on this lesson with his response to the COVID-19 coronavirus. Although the emergency powers he has been using to address the pandemic expired over eight months ago, he won’t give them up. Everyone, regardless of political persuasion, should be gravely troubled by a governor who steadfastly refuses to recognize limits on his authority.
The grant and expiration of emergency powers isn’t complicated. Our statutes say that, in the event of a public health crisis, the governor may declare a state of emergency, which unlocks a host of powers otherwise unavailable to him. But the powers come with a Cinderella clause: The state of emergency automatically expires in 60 days, unless the legislature decides otherwise. Governor Evers declared a COVID-19 public health emergency on March 12, 2020, which means that his emergency powers would expire on May 11, 2020, unless the legislature opted to extend them. It didn’t.
But what’s a statute when there’s power to be had? Instead of gracefully recognizing the limits placed on him by the law, Governor Evers has issued a string of executive orders, each declaring the same emergency over and over again, as if they were incantations for bringing expired powers back to life. They aren’t, which reveals his executive orders as nothing but camouflage for straight-up power grabs. And with each power grab he taunted the legislature, daring it to hold him accountable to the law.
Having forborne long enough, the legislature is poised to reassert its authority. Today, a number of legislators proposed a joint resolution to revoke the governor’s latest order declaring a state of emergency, along with the power the governor has been usurping for the past six months. For those who care about our constitutional form of government, and especially the principle that no one — not even the governor — is above the law, this was a most welcome development.
The pandemic is apparently not finished with us yet, which means there is considerable work still to be accomplished. But it must be done within the framework created by our laws, and neither emergencies nor noble intentions give the governor license to reject their authority. As our Wisconsin Constitution says, governments “deriv[e] their just powers from the consent of the governed.” We, the people of Wisconsin, have not consented to a regime in which the governor may refuse to surrender emergency powers when they expire. The legislature should be congratulated for rediscovering that it — not the executive branch — is responsible for setting the state’s policy.
Former Wisconsin Supreme Court Justice Daniel Kelly is Senior Fellow in Constitutional Governance at the Institute for Reforming Government.