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April 6, 2020
2020AP608-OA
Wisconsin Legislature v. Evers
Governor, no matter how well-intentioned, must be authorized by law. In support of his order, the
Governor cited several general constitutional provisions and one statute. Even if the Governor’s
policy judgments reflected in the order are well-founded, and even if we agreed with those policy
judgments, none of the authorities cited in the order support this broad sweep of power.
The Wisconsin Constitution establishes three branches of government: the legislative
branch to write the laws, the executive branch to enforce the laws, and the judicial branch to
interpret and apply the laws to cases before it. The Governor’s authority to issue Executive Order
No. 74 must be grounded in either the constitution or the laws enacted by the Legislature.
Executive Order No. 74 states that the legal bases for the directives are several provisions of the
Wisconsin Constitution—namely the Preamble; art. IV, § 11; art. V, § 1; and art. V, § 4—and
Wisconsin Stat. § 323.12(4)(b).
None of these provisions authorize the Governor to issue the directives in Executive Order
No. 74, with the exception of the directive requiring the Legislature to convene in special session
at 2:00 p.m. on April 7, 2020. Article IV, Section 11 of the Wisconsin Constitution gives the
Governor the authority to convene the legislative special session, as we agree he has lawfully done.
Article V, Section 1 provides that “[t]he executive power shall be vested in a governor,” nothing
of which grants the Governor any authority to suspend the statutes at issue. Article V, Section 4
requires the Governor to take care that the laws be faithfully executed, and grants other related
powers.1 Notably, Article V, Section 4 does reference danger from contagious disease, but
specifies that this circumstance gives the Governor the power to convene the Legislature at another
“suitable place.” Finally, the Preamble2 sets forth the purposes and goals for the Constitution; it
does not authorize any of the three created branches to assume any powers necessary to accomplish
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In full, Article V, Section 4 reads as follows:
The governor shall be commander in chief of the military and naval forces of the
state. He shall have power to convene the legislature on extraordinary occasions,
and in case of invasion, or danger from the prevalence of contagious disease at the
seat of government, he may convene them at any other suitable place within the
state. He shall communicate to the legislature, at every session, the condition of
the state, and recommend such matters to them for their consideration as he may
deem expedient. He shall transact all necessary business with the officers of the
government, civil and military. He shall expedite all such measures as may be
resolved upon by the legislature, and shall take care that the laws be faithfully
executed.
Wis. Const. art. V, § 4.
The Wisconsin Constitution Preamble reads as follows: “We, the people of Wisconsin, grateful
to Almighty God for our freedom, in order to secure its blessings, form a more perfect government,
insure domestic tranquility and promote the general welfare, do establish this constitution.”
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