I have received several emails asking why I am not doing what the Hartford mayor is doing. According to news reports, the Hartford mayor has announced that Hartford will not be following the Safter at Home order.
I am convinced that a mayor does not have the right to do what the mayor in Hartford is doing. I am uncertain that is even what is happening in Hartford. Just because he said something does not mean the Police Chief is following his directive. A Police Chief is not obligated to follow an illegal order.
The question is whether the DHS order is legal.
First, even the legislature is not arguing that the Governor does not have the authority to issue extraordinary orders through May 11 (the 60th day). The Governor has broad powers for 60 days. There are a few provisions (e.g., restricting places of religious worship) that might be unconstitutional even before May 11 (although there is some caselaw and history supporting it), but it appears the Governor has the right to order the rest for 60 days.
It appears, however, that the Governor does not have the right to extend the order beyond May 11. Perhaps recognizing his lack of authority, the Secretary-Designee of DHS instead issued the most recent order (which is largely the same as the oroiginal order).
The legislature is challenging whether whether DHS has the authority to issue any order (rather than a rule that could be modified by the legislature through the rulemakng process) or an order that goes as far as it has.
I seriously question whether the Governor has the authority to do anything that extends beyond May 11. I have been raising that issue for weeks. I also question whether DHS has the authority it asserts.
The issue will be decided by the Wisconsin Supreme Court, most likely within the next week. We will know then what is lawful and what is not.
As a creature of state government, local government’s choice is to follow the rules or challenge them in court. I do not support the right some municipalities have asserted to create Safe Havens for illegal aliens or gun free zones in contravention of federal and state laws. Similarly, I do not believe municipalities should turn their back on state rules here.
Considering that the legislature is already challenging the order, and the Wisconsin Supreme Court is expected to issue a decision within a week, I see no reason to spend the money to file another suit.
I am not defending all the decisions that were made in connection with this epidemic. I expect I would have done things somewhat differently but, then again, if I were making the decisions, I also would have more experts on whom to rely. I certainly would have made things clearer and more consistent. I think the Governor has over-reached, at least by having DHS extend the order past May 11 without legislative approval and by not making clearer and more coherent and consistent rules. He should be working with the legislature as required by state statutes (as I understand them) either by agreeing to and working to pass a mutually agreeable statute or issuing a rule that would be subject to the rulemaking oversight process. A rule under that process could have been enacted in less than two weeks.
I have a great deal of sympathy for the people who have contracted the illness, those who have died and their families, and the businesses and workers who have suffered greatly from this situation. My own income is down, and like everyone else, my retirement savings have been crushed. I am part owner of a business that has lost about 80-90% of its business but still keeps its doors open while losing money, knowing if it closes it is unlikely to ever reopen. Still, I recognize many have been hurt much more than I, and I am fortunate to have some cushion. I am doing what I can on a local level (e.g., we just created a small loan program for Mequon businesses and suspended some regulations). I hope to see some modification of the rules quickly while still keeping in place the most necessary protections.
I fully expect things will change, one way or another, within the next week or so. At that point, I will reassess my position and that of the Common Council. Either there will be a state law that is clearly defined, or the issue will be returned to the local level. Then, we will have to assess whether the Ozaukee County Health Department has authority that supersedes the authority of the City and the extent of the County’s authority (we are looking at that now). Its authority might preclude the City from doing anything. To the extent the authority rests with the City, I will do my best to assist businesses while also keeping people safe.