[EL] The WI situation

[Marty Lederman]

Let me preface this by saying that I HAVE NO IDEA HOW WISCONSIN EMERGENCY
AUTHORITIES HAVE HISTORICALLY BEEN INTERPRETED AND EXERCISED.

That said, Prof. Morley's two bases for suggesting that Evers acted w/o
authority don't seem, at least at first glance, entirely convincing.
First, he notes that a cognate provision expressly authorizes the Governor
to suspend the provisions of any *administrative rule* if strict compliance
would hinder disaster response--which according to Prof. Morley "strongly
suggests that 323.12(4)(b)'s general grant of authority doesn't include the
power to suspend/ignore *statutory* requirements."  Perhaps, but that's
hardly obvious from the plain face of 323.12(4)(b).

Second, he writes that "many other similarly worded/structured
state-of-emergency laws *in other states* DO expressly confer authority on
governors to suspend state statutes or statutory deadlines during declared
emergencies."  And from that concludes that "the omission of authority to
suspend state laws from *Wisconsin*'s general state of emergency statute is
likely significant & intentional, and should be given effect."

Is this a common method of state statutory construction?  A broadly worded
statutory provision in State A should be construed not to convey power
X--even though it falls within the plain terms of the provision--because it
does not expressly name a power that *is *expressly specified in other
states' laws?

Again, perhaps these two arguments are very strong under Wisconsin law--I
don't know.  But they aren't intuitively obvious.

On Mon, Apr 6, 2020 at 3:09 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> Michael Morley, an expert on the power that Governors do and do not have
> under state laws to suspend election laws in emergencies, has a series of
> tweets here on the Wisconsin Governor’s action today:
>
>
>
> https://twitter.com/michaelmorley11/status/1247232619277934593
>
>
>
>
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-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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