Wisconsin's Supreme Court has voided Democratic Gov. Tony Evers stay-at-home order, declaring it to be a rule that has to first be passed by the state legislature before the governor can put it into effect, meaning that at this point, who knows because the decision was basically written in crayon by children.
On Wednesday evening, Republicans on the Wisconsin Supreme Court issued a broad order striking down that state’s stay-at-home order, which was issued by the head of the state’s health department to prevent the spread of coronavirus. Among other things, the court’s decision concludes that the state health department exceeded its authority by instructing people to stay at home, and by “forbidding travel and closing businesses” deemed nonessential.
The case is Wisconsin Legislature v. Palm.
The Court’s order was 4-3, with Justice Brian Hagedorn, a Republican initially appointed to a lower state court by former Gov. Scott Walker (R), writing one of three dissenting opinions. Justice Daniel Kelly, a lame duck who recently lost an election to retain his seat by nearly 11 points, cast the key fourth vote to strike down the stay-at-home order. If not for a Wisconsin law that allows Kelly to serve until August, the stay-at-home order may well have been upheld.
The decision appears to be animated by the kind of political considerations that are more at home on conservative talk radio than in a court of law. During oral arguments last week, when a lawyer defending the stay-at-home order pointed out that there was recently an outbreak of coronavirus in Brown County, Wisconsin, Chief Justice Patience Roggensack dismissed the significance of that outbreak because it primarily impacted factory workers.
“These were due to the meatpacking, though,” Roggensack said. “That’s where Brown County got the flare. It wasn’t just the regular folks in Brown County.”
At that same oral argument, Justice Rebecca Bradley compared the state’s stay-at-home order to “‘assembling together and placing under guard all those of Japanese ancestry in assembly centers’ during World War II.”
The majority opinion, by Chief Justice Roggensack, is not at all clear as to whether this decision takes effect immediately, or whether the stay-at-home order remains in effect for another week. Roggensack also concludes that Andrea Palm, the head of the state’s health department, exceeded her lawful authority. But then 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.”
Thus, as 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 — or maybe it does have such an order for just one more week. And it is not at all clear which powers the state health department still has to fight the spread of a pandemic.
Moreover, one consequence of the Court’s decision is that if Palm does want to take additional steps to fight the spread of a deadly disease, she will likely need to jump through a series of procedural hoops that, at best, take weeks to complete. And her decisions can now be overridden by Republicans in the state legislature.
In the meantime, there is no court decision ordering coronavirus to stop spreading.
It's a complete disaster, and Wisconsin's residents are in jeopardy of a global pandemic more than ever now.
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.”
Yet the majority opinion in Wisconsin Legislature diminishes this power considerably by imposing procedural limits on Palm’s authority. Much of Roggensack’s majority opinion rests on a distinction between “rules” and mere “orders.”
The reason this distinction matters is that a mere “order” from a state agency can go into effect immediately, but a “rule” can take weeks or even months to promulgate. Even under an expedited process for “emergency” rules, a state agency must first draft a “statement of the scope of the proposed emergency rule.” That statement must be reviewed and approved by the governor and the state Department of Administration, and then appear in an official state publication that only publishes once a week.
After the statement is published, the agency must complete a 10-day waiting period before it is allowed to move forward, with no apparent way to waive this requirement. And then the rule can be delayed even longer if certain legislative leaders require the agency to hold a public hearing on the new rule. Then the new rule can potentially be suspended by a legislative committee — which may require the agency to start this process all over again.
In other words, the state's Public Health legislative committee can suspend any public health emergency orders, and any orders that are issued will now take at least ten days to go into effect at a minimum. The state is now handcuffed in dealing with the virus by politics.
And Wisconsin's residents will pay a brutal price almost immediately.
On Wednesday night in the heart of downtown Platteville, Wis., just hours after the Wisconsin Supreme Court threw out the state’s stay-at-home order, Nick’s on 2nd was packed wall to wall, standing room only.
It was sometime after 10 p.m. when “Long Cool Woman in a Black Dress” by the Hollies came over the sound system and a bartender took out his camera. In a Twitter broadcast, he surveyed the room of maskless patrons crammed together, partying like it was 2019. A few were pounding on the bar to the beat. Some were clapping their hands in the air and some were fist-pumping, a scene so joyous they could have been celebrating the end of the worst pandemic in a century.
Instead, as Wisconsin Gov. Tony Evers (D) knew, they were just celebrating the apparent end of his power over them — at least for now.
“We’re the Wild West,” Evers told MSNBC’s Ali Velshi on Wednesday night, reacting to the state Supreme Court’s ruling and the scenes of people partying in bars all across Wisconsin. “There are no restrictions at all across the state of Wisconsin. … So at this point in time … there is nothing that’s compelling people to do anything other than having chaos here.”
Chaos it was.
Right after the Supreme Court’s conservative majority issued a 4-to-3 ruling, invalidating the extension of the stay-at-home order issued by Evers’s appointed state health chief, the Tavern League of Wisconsin instructed its members to feel free to “OPEN IMMEDIATELY!”
With Evers’s statewide orders kaput, local health authorities scrambled to issue or extend citywide or countywide stay-at-home orders, creating a hodgepodge of rules and regulations all across the state that are bound to cause confusion, not to mention some traffic across county lines. It’s a situation unlike any in the United States as the pandemic rages on. But most of all, Evers feared that the court’s order would cause the one thing he was trying to prevent: more death.
As cases grow and spread and deaths mount in the weeks ahead, understand that Republicans have now firmly come down on that portion of the American public have to die in order to preserve "freedoms".
Most of all, the person deciding that is Donald Trump.
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