[EL] The WI situation

[Marty Lederman]

Here's the order
<https://twitter.com/jasonwsnead/status/1247286121610043392>.  No rationale
published yet.


On Mon, Apr 6, 2020 at 6:12 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Wisconsin Supreme Court has reversed Evers's order by a partisan 4-2
> vote.  If anyone comes across a copy of the order or opinion, please post.
>
> On Mon, Apr 6, 2020 at 3:27 PM Marty Lederman <
> Martin.Lederman at law.georgetown.edu> wrote:
>
>> 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
>>
>>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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