GOP leaders: DHS new indoor gathering order “unenforceable”

MADISON, Wis. (WMTV) - Wisconsin lawmakers say they want their chance to weigh in on Gov. Tony Evers new emergency order capping the number of people allowed at an indoor public gathering. In a letter to the Dept. of Health Services, which issued the order, Majority Leader Sen. Scott Fitzgerald and Speaker Robin Vos claims the current order is unenforceable.

“With cases once again rising, it’s clear the governor’s go-it-alone, grab bag approach to responding to the coronavirus has been a failure,” Vos wrote. He added that the legislature should work with the executive branch to battle the pandemic and requested a meeting with Gov. Tony Evers to come up with solutions.

The Evers Administration criticized the letter, accusing the GOP legislative leaders of failing to respond throughout the coronavirus outbreak.

“On their 175th day of inaction, Republicans chose to send a letter. That says everything Wisconsinites need to know about Republicans' priorities during this pandemic,” Evers' Deputy Communications Director Britt Cudabek said.

Vos released the letter late Wednesday afternoon along with a memorandum from Wisconsin Legislative Bureau attorney Tamara Dodge. In it, Dodge determined a court using the precedent set by the state Supreme Court in the battle the Safer at Home order, which was issued early in the state’s battle against coronavirus, would similarly strike this order down.

In the Safer at Home case, the justices found that by extending the previous Safer at Home order violated DHS' emergency powers. They ended the order and told health officials they would have to go through the rule-making process instead. Following the Supreme Court decision vacating Safer at Home, Evers and the health department initially took steps to create a rule, but soon dropped it.

Dodge contends DHS would need to go through the process of creating a rule, which involves public comment and the legislature, for this new order too. The Evers Administration, however, claims the order fits withing the parameters of the justices ruling.

With that memorandum in hand, Vos and Fitzgerald argued that because it was the order affects everyone who lives in the state and DHS did not follow the rule-making procedures, the agency could not enforce it.

Vos and Fitzgerald told DHS Secretary-designee Andrea Palm if it wanted to go ahead with implementing those restrictions, it could submit a scope statement to the Dept. of Administration and begin the rule-making process. The scope statement puts forth that, barring legislative action, any DHS rule will require affording the agency the power to regulate social distancing. It states that with no vaccine or treatment “there is no viable alternative.”

Following the ten-day public comment period, DHS officials will take the feedback provided and draft its proposed rule.

Once that 10-day period is over, DHS can publish the rule, going into effect immediately. However, the legislature’s Joint Committee for Review of Administrative Rules does have authority to meet and make changes to it if they deem it necessary.