Wisconsin Legislative Council

Anne Sappenfield
Director

TO: SPEAKER ROBIN VOS

FROM: Anne Sappenfield, Director, and Anna Henning, Senior Staff Attorney

RE: State and Federal Authority to Impose Restrictions during the COVID-19 Outbreak

DATE: March 20, 2020

This memorandum, prepared at your request, discusses current federal and state authority to restrict
individuals’ travel and to limit the size of gatherings, including by closing schools and restaurants,
during a communicable disease outbreak, and potential constitutional challenges to such actions.
Both the federal and the state government have broad statutory authority to respond to a public health
emergency and have recently taken actions under that broad authority to address the COVID-19
outbreak. Especially at the state level, the statutory authority is sufficiently broad that any legal
challenge to such actions is more likely to be brought on constitutional grounds than grounds that there
is a statutory violation.
At the federal level, Congress’s constitutional authority to authorize restrictions of movement or travel
generally derives from the Commerce Clause, which empowers Congress to “regulate commerce with
foreign nations, and among the several states….”1 [U.S. Const. art. I, s. 8, cl. 3.] State constitutional
authority in such an emergency derives from the police powers each state has to protect the welfare,
safety, and health of its citizens. Courts have interpreted states’ police powers very broadly in the
context of public health emergencies.2
Actions the federal or state government takes during the COVID-19 outbreak could be challenged on
several constitutional grounds, such as deprivation of liberty without due process or the right to
assemble. However, courts are generally deferential to government actions under emergencies like the
current outbreak, and it appears unlikely that a court would find any of the actions taken thus far at the
federal level or in Wisconsin to be unconstitutional.

1 Other provisions of the U.S. Constitution may also provide authority for federal responses to the COVID-19 outbreak.
For example, the president’s Article II powers may also empower certain actions for military aid or border closing.
2 See, e.g., Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 387 (1902) (“[T]he
power of States to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants
... is beyond question.”). State authority to regulate travel could in some cases be preempted by a constitutionally valid
federal regulation, or by the dormant commerce clause. [See Edwards v. California, 314 U.S. 160 (1941).] However, in
practice, except for international travel and quarantine at international borders, the federal government has generally
deferred to states on questions of quarantine and movement.

One East Main Street, Suite 401 • Madison, WI 53703 • (608) 266-1304 • leg.council@legis.wisconsin.gov • http://www.legis.wisconsin.gov/lc
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FEDERAL STATUTORY AUTHORITY AND RECENT ACTIONS

Under federal law, the Secretary of Health and Human Services has the authority to make and enforce
regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases
from foreign countries into the States or possessions, or from one State or possession into any other
State or possession.” [42 U.S.C. s. 264 (a).] This authority derives from the Commerce Clause of the
U.S. Constitution under which Congress has the power to regulate commerce with foreign countries and
among the states. [Wis. Const. art. 1, s. 8.]
On January 31, 2020, the Secretary of Health and Human Services, Alex Azar, declared a public health
emergency. President Trump declared a national emergency on March 13, 2020. In proclamations
issued January 31, 2020, and February 29, 2020, the president closed the border with Canada and
barred entry of all foreign nationals who have visited China, Iran, and certain European countries in the
previous 14 days and limited the airports into which citizens and legal permanent residents may fly into
from a high-risk area.3 Implementing the January 31, 2020, proclamation, the U.S. Department of
Homeland Security established certain quarantine requirements and airport screening procedures.4

STATE STATUTORY AUTHORITY AND RECENT ACTIONS

States have broad authority during a public health emergency. This authority derives from the state’s
police power, which is the power to establish and enforce laws protecting the welfare, safety, and health
of the public. The Legislature has also enacted several statutes that explicitly provide broad authority to
the Governor and other state officials during a public health emergency.

Executive Orders Declaring a State of Emergency

Under Wisconsin law, if the Governor determines that a public health emergency exists, he or she may
issue an executive order declaring a state of emergency related to public health emergency for the state
or any portion of the state and may designate the Department of Health Services (DHS) as the lead state
agency to respond to the emergency. On March 12, 2020, Governor Evers issued Executive Order #72
declaring a health emergency in response to the COVID-19 coronavirus. The order designates DHS as
the lead agency to respond to the emergency, as permitted by s. 323.10, Stats.
The threshold for declaring a public health emergency is high. Specifically, “public health emergency” is
defined as the occurrence or imminent threat of an illness or health condition that meets all of the
following criteria:

 Is believed to be caused by bioterrorism or a novel or previously controlled or eradicated biological

agent, which includes certain viruses.
 Poses a high probability of either of the following:

3 Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of
Transmitting 2019 Novel Coronavirus (Jan. 31, 2020), https://www.whitehouse.gov/presidential-
actions/proclamation-suspension-entry-immigrants-nonimmigrants-persons-pose-risk-transmitting-2019-novel-
coronavirus/; Proclamation on the Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional
Persons Who Pose a Risk of Transmitting Coronavirus (Feb. 29, 2020), https://www.whitehouse.gov/presidential-
actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-
transmitting-coronavirus/.
4 85 Fed. Reg. 7214 (Feb. 7, 2020).
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o A large number of deaths or serious or long-term disabilities among humans.

o A high probability of widespread exposure to a biological, chemical, or radiological agent that
creates a significant risk of substantial future harm to a large number of people.
[s. 323.01 (16), Stats.]
A state of emergency may not exceed 60 days, unless it is extended by joint resolution of the
Legislature. The executive order may be revoked at the discretion of either the Governor by executive
order or the Legislature by joint resolution. [s. 323.10, Stats.]
The Governor has broad powers during a state of emergency. For example, the Governor may:

 Declare priority of emergency management contracts over other contracts, allocate materials and
facilities in his discretion, and take, use, and destroy, in the name of the state, private property for
emergency management purposes. The Governor must keep records of that action, which are
evidence of a claim against the state. The claim must be referred to the Claims Board.
 Issue such orders as he deems necessary for the security of persons and property.
 Contract on behalf of the state with any person to provide, on a cost basis, equipment and services
to be used to respond to a disaster or the imminent threat of a disaster.
 Suspend the provisions of any administrative rule if strict compliance with that rule would prevent,
hinder, or delay necessary actions to respond to the disaster.
[s. 323.12 (4), Stats.]

DHS Authority
DHS has broad statutory authority to control communicable diseases, regardless of whether a state of
emergency has been declared, and was granted additional authority under Executive Order #72. DHS
has exercised this authority to order the closure of schools and limit restaurant service to carry out and
delivery.
Pursuant to s. 252.02, Stats., DHS may do any of the following, even in the absence of a state of
emergency:

 Authorize and implement all emergency measures necessary to control communicable diseases.
 Close schools and forbid public gatherings in schools, churches, and other places to control
outbreaks and epidemics.
 Establish systems of disease surveillance and inspection to ascertain the presence of any
communicable disease.
 If a special inspection warrant is issued, send an agent to enter and inspect any building, vessel or
conveyance and to remove any person affected by a communicable disease. For this purpose, the
agent may require a vehicle to stop at any place, or may require a railway car to stop at any station
or sidetrack, for such time as may be necessary.
 In an emergency, provide those sick with a communicable disease with medical aid and temporary
hospital accommodation.
 Promulgate and enforce rules or issue orders for any of the following purposes:
o To guard against the introduction of any communicable disease into the state;
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o For the control and suppression of communicable diseases;

o For the quarantine and disinfection of persons, localities and things infected or suspected of
being infected by a communicable disease; and
o For the sanitary care of jails, state prisons, mental health institutions, schools, and public
buildings and connected premises.
 Issue orders for any city, village, or county by service upon the local health officer.
If the public officer or employee in charge fails to comply with a DHS rule or order, DHS may appoint
its own agent to execute its rules or orders.
When the Governor declares a public health emergency and designates DHS as the lead agency to
respond to the emergency, DHS acts as the public health authority during the period of the state of
emergency and is conferred with additional powers. Executive Order #72 expressly authorizes DHS to
do all of the following:

 Take all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in
the state.
 Suspend the provisions of any administrative rule, if the DHS Secretary determines that compliance
with that rule would prevent, hinder, or delay necessary actions to respond to the emergency and
increase the health threat.
 Assist “as appropriate” in the state's ongoing response to the public health emergency.
While the state of emergency is in effect, the Secretary of Health Services may designate a local health
department as a DHS agent and confer upon the local health department, acting under the agency, the
powers and duties of a public health authority.
As the public health authority, DHS may purchase, store, or distribute antitoxins, serums, vaccines,
immunizing agents, antibiotics, and other pharmaceutical agents or medical supplies that DHS
determines are advisable to control a public health emergency. [s. 250.042, Stats.]
DHS, or a local health officer acting on behalf of DHS, may require isolation of a patient, quarantine of
contacts, concurrent and terminal disinfection, or modified forms of these procedures as may be
necessary. [s. 252.06, Stats.] DHS may order quarantines of persons, localities, or things infected or
suspected of being infected with a communicable disease. [s. 252.02 (4), Stats.] Specifically, if an
official, such as the State Health Officer, is notified that a person is known to have or is suspected of
having a contagious medical condition that poses a threat to others, the official may direct the person to
comply with certain conditions, including appearing before designated health officials for verification of
status, testing, or direct observation of treatment; cease conduct or employment that constitutes a
threat to others; reside part- or full-time in an isolated or segregated setting that decreases the danger
of transmission; or be placed in an appropriate institutional treatment facility until the person has
become noninfectious. In addition, officials may direct persons who own or supervise real or physical
property that presents a threat of transmission to do what is reasonable and necessary to abate the
threat of transmission. [s. DHS 145.06 (4) and (6), Wis. Adm. Code.]
Since declaring the public health emergency in response to the COVID-19 outbreak in Executive Order
#72, the Governor has issued the following orders relating to restricting gatherings of people:

 An order closing schools (March 13, 2020).

 An order prohibiting mass gatherings of 50 or more people (March 16, 2020).
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 An order prohibiting gatherings of 10 or more people (March 17, 2020).

 An order restricting the size of child care settings (March 18, 2020).
The most restrictive of those orders – the order that generally prohibits gatherings of 10 or more people
– defines “mass gathering” as “any planned or spontaneous, public or private event or convening that
will bring together or is likely to bring together 10 or more people in a single room or single confined or
enclosed space at the same time.” The order provides certain exemptions for: airports; educational
institutions (for limited purposes); hotels and motels; certain government facilities, including the
Legislature; relief facilities; residential buildings; retain establishments, with certain conditions
providing for physical distance; health care facilities; facilities for voting; food establishments,
including grocery stores, and restaurants for take-out or delivery services only; and certain commercial
and nonprofit entities, such as office spaces and manufacturing facilities.

CONSTITUTIONAL CONSIDERATIONS
Courts5 are typically deferential to the federal and state governments in times of emergency, even when
governmental actions affect “fundamental” rights to liberty and travel. Although courts generally
emphasize that actions taken during emergency situations are subject to constitutional limitations,6
tests under various constitutional doctrines have typically been resolved in favor of the government if
the government actions are found to be necessary to protect the public from danger. Thus, although the
federal and state actions taken to date in response to the COVID-19 outbreak could be subject to
constitutional challenges on one or more of the grounds discussed below, any such challenge would
likely face a relatively high legal threshold.

Procedural Due Process

One potential basis for a challenge could be that an action or actions taken by the federal or state
government unconstitutionally deprived persons of liberty without due process of law. Under the Fifth
and Fourteenth Amendments to the U.S. Constitution, neither the federal government nor any state
may deprive a person of “life, liberty, or property without due process of law.” [U.S. Const. amends. 5
and 14.] Likewise, the Wisconsin Constitution provides: “All people are born equally free and
independent, and have certain inherent rights; among these are life, liberty and the pursuit of
happiness; to secure these rights, governments are instituted, deriving their powers from the consent of
the governed.” [Wis. Const. art. I, s. 1.] While the language in the two Constitutions is not identical, the
Wisconsin Supreme Court interprets the two provisions as providing the same procedural due process
protections. [County of Kenosha v. C&S Management, Inc., 223 Wis. 2d 372, 393 (1999).]
Whereas the “property” component of procedural due process is fairly well-developed, the “liberty”
component of the procedural due process clause has been interpreted relatively rarely outside of the

5 The case law discussed below is generally federal, but the considerations arising under the U.S. Constitution in those
cases are applicable to Wisconsin actions. Although some Wisconsin court decisions have interpreted specific
provisions in ch. 252, Stats., for example relating to confinement and HIV testing, there do not appear to be any
published Wisconsin court decisions specifically addressing the constitutionality of broad state restrictions on freedom
of movement during public health emergencies.
6 See, e.g., Ex. Parte Milligan, 71 U.S. 2, 120 (1866) (“The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times.”).
However, U.S. Supreme Court justices have noted the propensity of all three branches of government to overlook such
limitations in times of war. See, e.g., Ziglar v. Abbasi, 582 U.S. __ (2017) (Breyer, J., dissenting) (discussing the Alien
and Sedition Acts and Korematsu v. United States, 323 U. S. 214 (1944).).
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criminal law context. However, some past cases may provide useful background. An early 20th Century
decision, Jacobson v. Massachusetts, involved a challenge to a state’s mandatory smallpox vaccination
law on procedural due process grounds. Noting that “the liberty secured by the Constitution of the
United States does not import an absolute right in each person to be at all times, and in all
circumstances, wholly freed from restraint,” the Court held that a state may infringe upon individual
liberty when “under the pressure of great dangers” to “the safety of the general public.” [197 U.S. 11
(1905).]
Some mid-20th Century procedural due process decisions were even more deferential. For example, in
upholding restrictions on travel to Cuba in Zemel v. Rusk, the U.S. Supreme Court noted that “right to
travel is a part of the liberty of which the citizen cannot be deprived without due process of law.”
However, the Court held that the right to travel “does not mean that areas ravaged by flood, fire or
pestilence cannot be quarantined when it can be demonstrated that unlimited travel to the area would
directly and materially interfere with the safety and welfare of the area or the Nation as a whole.” [381
U.S. 1, 14, 28 (1965).] The “materially interfere” language was arguably more deferential that the “great
dangers” language in Jacobson, albeit with the same conclusion.
In more modern cases, courts have generally held that the due process clause typically requires the
government to hold a hearing specific to an individual before depriving the individual of his or her
liberty. [Zinermon v. Burch, 494 U.S. 113 (1990).] However, courts have provided exceptions to that
general requirement. Specifically related to quarantine, at least one federal court upheld the mandatory
quarantine, without a hearing, of a nurse who had been exposed to Ebola while traveling to Africa upon
her return to the United States. In upholding the quarantine, the Court stated that the government is
“entitled to some latitude … in its prophylactic efforts to contain what is, at present, an incurable and
often fatal disease.” [Hickox v. Christie, 205 F. Supp. 3d 579, 584 (D.N.J. 2016).]
Although the language and standards applied in procedural due process decisions throughout the years
differ, a general theme has been to allow exceptions to rigid procedural requirements where necessary
to respond to emergency situations. As applied to the state and federal orders issued to date, requiring
the government to provide an individual hearing for every person deprived of liberty under the orders
would arguably greatly hamper the government’s efforts to slow the spread of the disease. Thus, it
seems likely that a court would cite prior decisions granting “latitude” to uphold the current restrictions
against a procedural due process challenge.

Substantive Due Process

More modern cases involving deprivations of liberty have also involved challenges on substantive due
process grounds, which primarily arise under the Fifth and Fourteenth Amendments to the U.S.
Constitution. Rather than focus on the absence of sufficient process, substantive due process prevents
the government from engaging in conduct that: (1) shocks the conscience; or (2) interferes with the
rights implicit in the concept of ordered liberty. When deciding a substantive due process case, a court
typically first determines whether a government restriction “substantially infringes” upon a
“fundamental”7 right. If so, courts then ask whether government infringement of that fundamental right

7 The scope of “fundamental” rights has shifted over time. [Compare the more restrictive scope in Washington v.
Glucksberg, 521 U.S. 702 (1997), with the more expansive scope in Obergefell v. Hodges, 576 US _ (2015).] However,
the rights of liberty and travel have consistently been considered “fundamental” under the substantive due process
doctrine and various other constitutional doctrines.
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is justified by a legitimate and compelling8 governmental interest. [Daniels v. Williams, 474 U.S. 327,
331 (1986).]
Many recent substantive due process decisions have arisen in the social policy context – e.g., relating to
abortion and marriage – and may not be directly analogous. The most relevant U.S. Supreme Court
cases might be cases relating to detention. The U.S. Supreme Court has upheld pre-trial detentions
challenged on substantive due process grounds because the government had a compelling interest in
preventing crimes by arrestees. [United States v. Salerno, 481 U.S. 739 (1987).] In lower court cases
relating more specifically to restrictions imposed to protect public health, courts have upheld
restrictions of fundamental liberty rights when such restrictions are needed to protect the public from
the dangers of communicable disease. [See, e.g., Best v. St. Vincent’s Hospital, 03 Cv. 0365 (RMB)
(JCF) (S.D.N.Y. Jul. 2, 2003).]
A court would likely hold that state and federal orders relating to COVID-19 affect certain fundamental
rights, such as rights of liberty and travel. However, it also seems likely that the need to lessen the
spread of COVID-19 would serve as a sufficiently compelling interest such that a court would
nevertheless uphold such orders on substantive due process grounds.

Privileges and Immunities Clause

A restriction on the freedom of movement could alternatively be challenged under the privileges and
immunities clause, which provides that “citizens of each state shall be entitled to all privileges and
immunities of citizens in the several states.” [U.S. Const., art. IV, s. 2, cl 1.]
A court reviewing a challenge on privileges and immunities clause grounds typically determines
whether a law discriminates against out-of-state residents, and, if so, whether the activity in which a
nonresident wishes to engage is “fundamental.” If a court finds that a state discriminates against out-of-
state residents with respect to a fundamental activity, a two-part test governs whether the
discrimination will be found unconstitutional. First, the court determines whether the state has a
“substantial reason” for the different treatment. Next, the court determines whether the discrimination
bears a “substantial relationship” to the state’s objective. [Supreme Court of New Hampshire v. Piper,
470 U.S. 274, 284 (1985).]
In short, a challenge to a state travel restriction under the privileges and immunities clause would likely
only be brought if the state’s action arguably treated out-of-state residents differently than in-state
residents. In addition, even if it did so, the restriction could survive a challenge if that different
treatment was justified with a “substantial relationship” to the state’s “substantial reason” for the
different treatment.
Because the state and federal orders issued to date do not appear to treat out-of-state residents
differently than Wisconsin residents, it appears highly unlikely that a challenge to the current orders on
privileges and immunities grounds would succeed.

Equal Protection
The equal protection clauses of Wis. Const. art. I, s. 1 and the 14th Amendment to the U.S. Constitution
prohibit state and local actions that provide unequal treatment under the law. The 14th Amendment of
the U.S. Constitution provides that “no state shall make or enforce any law which shall … deny to any

8 Other cases refer to an “important” government interest in this analysis.

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person within its jurisdiction the equal protection of the laws.” Similarly, Wis. Const. art. 1, s. 1,
provides that “[a]ll people are born equally free and independent….”9
In general, under the equal protection clauses, unless a government action discriminates based on a
“suspect classification,” including race, religion, national origin, and alienage, a court will uphold the
action if it is justified by a rational basis. If a suspect classification is found, a court will instead apply
“strict scrutiny,” meaning that the government must demonstrate a “compelling interest” to justify the
differential treatment. In some cases, courts have also applied an either strict or “immediate” scrutiny10
where a “fundamental interest” is affected. As mentioned above, one of the interests the Court has
characterized as “fundamental” includes the right of interstate travel. [See, e.g., Shapiro v. Thompson,
394 U.S. 618 (1969).]
The state actions taken to date by the Governor do not appear to discriminate based on a suspect
classification and would likely be subject to “rational basis” review and almost certainly upheld.11 It is
more possible that the federal actions barring travel from particular counties would be found to
discriminate based on national origin; if so, they would need to be justified by a compelling
governmental interest. However, based in part on the U.S. Supreme Court’s relatively deferential ruling
in Trump v. Hawaii, holding that the president has “broad discretion” to suspend the entry of
noncitizens into the United States, it appears likely that a federal court would be likely to do so. [585
U.S. __ (2018).]

Freedom of Assembly and Free Exercise of Religion

Finally, one or more clauses under the First Amendment to the U.S. Constitution could serve as bases
for a challenge to the Governor’s order generally restricting gatherings to no more than 10 people. First,
it is possible that the order would be challenged as an unconstitutional restriction on an individual’s
freedom of assembly or association.12 However, government restrictions on assembly, like restrictions
on freedom of speech, are most likely to be upheld when they are content-neutral and support a
compelling government interest. Thus, a First Amendment challenge appears relatively unlikely to
prevail as applied to a government action that is broadly applied, viewpoint neutral, and prompted by a
public health emergency.
That result is illustrated in past cases related to travel. In Zemel v. Rusk, the decision discussed above
relating to restricting travel to Cuba, the U.S. Supreme Court upheld the travel restriction against a First
Amendment challenge. The Court distinguished the restriction from past restrictions that had a
viewpoint-based focus, such as the restriction relating to citizens who declined to sign an affidavit
related to communism in Kent v. Dulles, 357 U.S. 116 (1958).

9 Wisconsin courts have used the same analysis to review challenges under state and federal equal protection clauses.
[Reginald D. v. State, 193 Wis. 2d 299, 306 (1995).]
10 “Intermediate scrutiny” requires a showing that differential treatment furthers an important government interest by
means that are substantially related to that interest. Intermediate scrutiny is also referred to as “heightened scrutiny.”
11 In contrast, an order restricting movement or assembly based in part on race would be more likely to be struck down.
For example, a federal court struck down a local action in the late Nineteenth Century that quarantined all of
Chinatown in San Francisco on equal protection grounds. In that case, the Court found that the quarantine decision
was made in part based on race. [Jew Ho v. Williamson, 103 F. 10 (C.C.D.Cal.1900).]
12 The First Amendment to the U.S. Constitution prohibits Congress and the states from abridging the right of the
people to “peacefully assemble.” U.S. Supreme Court has not consistently viewed freedom of association as an
independent right under the First Amendment.
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Second, it is possible that the state order could be challenged under the free exercise clause of the First
Amendment to the U.S. Constitution or under Article I, Section 18 of the Wisconsin Constitution. The
First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof ….” Article I, Section 18 of the
Wisconsin Constitution similarly prohibits the government from interfering with religious worship and
the “rights of conscience.” The Wisconsin Constitution has generally been interpreted to restrict
government action in more circumstances than does the U.S. Constitution.
During much of the 1960s, 1970s, and 1980s, the U.S. Supreme Court applied a “strict scrutiny”-like
test in cases challenging generally applicable laws on free exercise grounds. [See especially Sherbert v.
Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).] That test required that if a law
placed a burden on religious exercise, in order for the law to be found constitutional, that burden must
be outweighed by a compelling government interest that the law was designed to achieve. In addition,
the burden must be the least restrictive means of accomplishing the government’s interest
The U.S. Supreme Court reversed course in 1990, when it held in Employment Division v. Smith, 494
U.S. 872, that laws that are neutral (i.e., not specifically addressing religious practice) and generally
applied may be constitutionally applied to religious actions. The Court stated that “the right of free
exercise does not relieve an individual of the obligation to comply with a valid and neutral law of
general applicability ….” [494 U.S. at 879 (quotation and citation omitted).]
The “neutrality” standard adopted in Smith continues to be the primary test applied by the federal
courts in most cases challenging the application of a generally applicable law under the free exercise
clause. Under that standard, if a law has only an “incidental” effect on religious practice, it will generally
be upheld against a challenge brought under the free exercise clause.13
In State v. Miller, 549 N.W.2d 235 (1996), the Wisconsin Supreme Court held that a person challenging
the application of a state or local government law under Article I, Section 18 of the Wisconsin
Constitution is instead subject to the compelling interest/least restrictive means test previously
applicable in federal cases. That test can be reiterated as a four-part test, in which a person challenging
a law must prove that: (1) the person has a sincerely held religious belief; and (2) the belief is burdened
by the application of the state law at issue. If the person successfully establishes these two elements,
then the state has the burden to prove that: (3) the law is based on a compelling state interest; and (4)
the state interest cannot be served by a less restrictive alternative.
Because the “free exercise” test is more stringent under the Wisconsin Constitution than under the U.S.
Constitution, courts would apply the Wisconsin standard when reviewing a challenge to the Governor’s
order. Because an order restricting gatherings to no more than 10 people limits opportunities for
religious communities to gather in worship, a person challenging the order could arguably satisfy the
first two elements of the compelling interest/least restrictive means test. If so, the state would need to
prove a compelling interest that is the least restrictive means. As with the constitutional doctrines
discussed above, it appears likely that a court would be receptive to finding that limiting transmission of
COVID-19 is a compelling interest, and that limiting gatherings to no more than 10 is the least
restrictive means of doing so, but it is difficult to predict the outcome of that analysis with certainty.

13However, the U.S. Supreme Court has declined to apply Smith in recent cases involving the application of generally
applicable employment discrimination laws to internal management decisions made by religious institutions, holding
that in such cases, a “ministerial exception” applies. [See, e.g., Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U.S. __ (2012).]
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OTHER LEGAL CONSIDERATIONS

In addition to grounds for potential challenges discussed above, a state or federal government action
could be subject to challenge on one or more additional grounds, depending on the specific nature of
the action at issue. For example, an action by an executive agency could be challenged if it arguably
exceeded the agency’s statutory authority. Relatedly, an executive branch action could be challenged if it
arguably exercised a core power of the legislative branch not conferred by statute, or, conversely, an
overly vague grant of legislative authority could be subject to challenge under the nondelegation
doctrine. In addition, a state action could be challenged if it is arguably preempted by federal law.
If you have any questions, please feel free to contact us directly at the Legislative Council staff offices.

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