May 15, 2020


“The Wisconsin Supreme Court struck down Gov. Tony Evers’ coronavirus stay-at-home order Wednesday, ruling that his administration overstepped its authority when it extended it for another month without consulting legislators. The 4-3 ruling essentially reopens the state, lifting caps on the size of gatherings, allowing people to travel as they please and allowing shuttered businesses to reopen, including bars and restaurants.” AP News

The court ruled that the Health Secretary “broke the law when she issued [the stay-at-home order] after failing to follow emergency rule procedures required under [Wisconsin law] and [that] even if rulemaking were not required, [she] exceeded her authority by ordering everyone to stay home, closing all ‘non-essential’ businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all ‘non-essential’ travel.” Wisconsin Supreme Court

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From the Left

The left opposes the court’s ruling.

“The Wisconsin Supreme Court decision is the legal manifestation of the anti-lockdown protests in several states, encouraged by President Donald Trump… The correct constitutional framework for evaluating government orders isn’t the made-up one that the Wisconsin court used. It’s the familiar principle that restrictions on liberty must serve a compelling government interest and must be narrowly tailored to achieving that interest. Fighting an ongoing pandemic is about as compelling as government interests get

“Wisconsin law says, among other things, that DHS ‘may authorize and implement all emergency measures necessary to control communicable diseases.’ It says that DHS ‘may promulgate and enforce rules or issue orders … for the control and suppression of communicable diseases.’ This statutory language makes it crystal clear that DHS can issue emergency orders as well as rules crafted under the required, lengthy administrative process…

“For good measure, Wisconsin law also says that ‘any rule or order may be made applicable to the whole or any specified part of the state.’ That phrase pretty much rules out the majority’s position that an order magically turns into a rule when it applies statewide.”
Noah Feldman, Bloomberg

“Wisconsin law gives the state Department of Health Services extraordinarily broad power — or, at least, it did until today — to confront a public health crisis. Among other things, the department may ‘close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.’ It may ‘issue orders ... for the control and suppression of communicable diseases,’ and these orders ‘may be made applicable to the whole or any specified part of the state.’ And, on top of all that, an additional provision permits the health department to ‘authorize and implement all emergency measures necessary to control communicable diseases’…

“As [Justice Brian Hagedorn] notes in dissent, the majority opinion ‘has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward.’ Wisconsin now has no stay-at-home order preventing the spread of coronavirus… And it is not at all clear which powers the state health department still has to fight the spread of a pandemic… [Justice] Roggensack’s opinion contains this extraordinary line: ‘We do not define the precise scope of DHS authority under Wis. Stat. § 252.02(3), (4) and (6) because clearly Order 28 went too far.’”
Ian Millhiser, Vox

“The incident showed how this famously crucial state’s legal, political, and cultural differences tend to blend into a witch’s brew of polarization. If there are fresh coronavirus outbreaks in Trump Country precincts where support for business reopening is high, it could change that equation. For the time being, though, some Wisconsin citizens are getting buzzed on their inalienable right to risk illness and death.”
Ed Kilgore, New York Magazine

“Make no mistake. An election that made people wait three hours to vote during a pandemic in Green Bay and Milwaukee was ridiculous, as the now-famous sign said. And it is ridiculous that Wisconsin is the first state in the union to be opened by court order — and not a unanimous order with clear legal precedent, but one based on the whims and political ideologies of just four Supreme Court justices…

“All four justices who overturned the governor’s power in a health emergency had campaigned against judicial activism. They proved to be against judicial activism until they were for it. They are against judges writing laws unless the special interests that put them up and backed them for office want them to write their own laws… In 1981, as HIV and AIDS swept across the country, the Legislature gave the state Department of Health Services the power to issue emergency orders. If the Republicans who run the state Legislature don’t like those laws, they should rewrite them.”
Editorial Board, Milwaukee Journal Sentinel

From the Right

The right supports the court’s ruling.

The right supports the court’s ruling.

“[Health Secretary Andrea] Palm could order infected individuals to quarantine. But she can’t on her own direct all non-essential businesses to shut down and people to stay home without providing citizens with de minimis procedural safeguards including notice and a hearing if legislators ask. Emergency rule-making also gives the Legislature a veto. While this process could take about two weeks, Ms. Palm had plenty of time before extending her March order through May…

“Mr. Evers can still work with the Legislature to promulgate a less restrictive rule that takes into account local epidemic conditions, business hygiene and social-distancing measures. Wisconsin has been less affected by the coronavirus than some Midwest states with 507 currently hospitalized compared to 1,330 in Michigan, 1,381 in Indiana and 4,473 in Illinois. Most flare-ups have been in meatpacking plants and nursing homes. Wisconsinites can be trusted to protect themselves and fellow citizens.”
Editorial Board, Wall Street Journal

“Remember, the governor’s original executive order, declaring the public-health emergency and directing DHS to act as the lead agency for managing the pandemic, was not at issue in the case. Under Chapter 323, such orders expire after 60 days unless extended by joint resolution of the legislature. Because the legislature did not pass, or even consider, such a joint resolution, the governor’s executive order expired in the second week of May...

“So how much authority does an unelected and unconfirmed DHS secretary have under Chapter 252? Is it constitutional for an unelected and unconfirmed secretary to essentially have limitless authority, with no legislative oversight, while the popularly elected governor can only issue an order that runs for 60 days?…  

“The governor responded [to the ruling] by arguing that the Republican legislature now owns the ‘chaos.’ In fact, what will likely follow is an orderly emergency rule-making process whereby [the Wisconsin Department of Health] and the legislature will be forced to work in concert to establish legal guidelines for managing the reopening process… [in the meantime] much of the burden of providing clarity will likely fall on local units of government. Many will likely adopt a reasonable and balanced approach. But more important, as the dust settles following issuance of the order, it’s important that Wisconsinites continue to remain engaged.”
Jake Curtis, National Review

“While I’m gratified to see the courts (any court, really) exercising some level of restraint on executive authority during a time of crisis, the way this is being done leaves several unanswered questions. On the plus side, calling for the legislature to get involved in the process is a very hopeful sign. If you’re going to temporarily curtail the rights of your citizens regarding freedom of movement and assembly, a far better approach is to pass an actual law rather than having one person dictate the rules. But with that said, the court’s ruling clearly says that they are not trying to ‘undermine the executive authority’ of Governor Evers. Really? It sounds as if that’s exactly what they are doing…

“[Moreover] the executive order was described as a ‘vast seizure of power’… [but] the door has been left open for virtually the same stay at home order to be put in place if the legislature goes along with it. If the Health Services Secretary’s order was so far out of bounds, how would the same directive suddenly become lawful, valid and enforceable if it received the rubber stamp of the legislature?”
Jazz Shaw, Hot Air

Sen. Ron Johnson (R-WI) tweeted, “I have always believed the vast majority of our economy should be deemed essential and continue to operate with appropriate safety measures. I urge the state legislature and
[Governor Evers] to recognize this fact and work together to implement a set of guidelines that lets people start to go back to work and resume their lives in as safe a manner as possible.”
Ron Johnson, Twitter

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