2021 Senate Joint Resolution 3
ENROLLED JOINT RESOLUTION
Relating to: terminating the COVID-19 public health emergency, including all emergency orders and actions taken pursuant to declaration of the public health emergency.
Whereas, under the United States Constitution and the Wisconsin State Constitution, the structural separation and limitation of governmental powers is foundational to our republican form of government, in that it ensures the government exercises only that authority to which the governed have consented; and
Whereas, under section 323.10 of the statutes the governor may issue an executive order declaring the existence of a public health emergency; and
Whereas, section 323.12 of the statutes grants the governor certain powers that may be used in responding to the specified public health emergency, as defined in section 323.02 (16) of the statutes; and
Whereas, the governor's authority to use the powers granted under section 323.12 of the statutes automatically expires 60 days after the declaration of the emergency, unless the legislature extends the state of emergency by joint resolution, or at such time as the legislature rescinds the executive order declaring the emergency, whichever occurs first; and
Whereas, on March 12, 2020, Governor Tony Evers issued Executive Order #72 declaring a public health emergency for the COVID-19 coronavirus, which gave the governor access to the powers identified in section 323.12 of the statutes for the purpose of taking immediate action on the COVID-19 coronavirus emergency; and
Whereas, the legislature has not extended the state of emergency related to the COVID-19 coronavirus emergency identified in Executive Order #72, with the result that the governor's authority to address the COVID-19 coronavirus using the emergency powers identified in section 323.12 of the statutes expired on May 11, 2020; and
Whereas, given that legislative oversight is vital to ensuring the governor's proper exercise of the emergency powers granted by section 323.12 of the statutes, legislative oversight is rendered useless if the governor ignores the temporal limitations on the emergency powers by continuously reissuing emergency declarations for the same emergency; and
Whereas, under section 323.10 of the statutes, any extension of the declaration of emergency caused by the COVID-19 coronavirus requires a joint resolution of the legislature; and
Whereas, the Wisconsin Supreme Court has already reaffirmed the legislature's constitutionally mandated participation in any further response to the COVID-19 coronavirus in Wisconsin Legislature v. Palm; and
Whereas, Executive Order #82 was unlawfully issued on July 30, 2020, to address the very same COVID-19 public health emergency that expired with Executive Order #72 on May 11, 2020; and
Whereas, Executive Order #90 was unlawfully issued on September 22, 2020, to address the very same COVID-19 public health emergency that expired with Executive Order #72 on May 11, 2020; and
Whereas, Executive Order #95 was unlawfully issued on November 20, 2020, to address the very same COVID-19 public health emergency that expired with Executive Order #72 on May 11, 2020; and
Whereas, it is incumbent upon the three branches of government to act as checks on one another's power in order to vigorously protect and defend the principle of structurally separated and limited power, so as to protect the governed from abusive government; and
Whereas, the legislature can and must take immediate action to protect the integrity of the legislative powers authorized under the Wisconsin Constitution and the integrity of this republican form of government; now, therefore, be it
Resolved by the
senate, the assembly concurring, That the governor had no authority to issue Executive Order #104 on January 19, 2021, and it was therefore void from the date of its issuance, as were any and all of the governor's actions or orders related to the declared public health emergency to the extent the authority for those orders or actions depended on Executive Order #104, or sections 323.10 or 323.12 of the statutes; and
Be it further resolved, That regardless of whether Executive Order #104 should ever be construed as having conferred on the governor any authority to exercise the powers granted by section 323.10 of the statutes, Executive Order #104 is hereby terminated and revoked. The revocation of Executive Order #104 terminates any and all of the governor's actions or orders related to the declared public health emergency to the extent the authority for those orders or actions depend on Executive Order #104, or sections 323.10 or 323.12 of the statutes.
