Wisconsin’s State Supreme Court struck down Emergency Order 28 on Wednesday, lifting the “Safer at Home Order” that Gov. Tony Evers’ administration sought to impose upon Wisconsinites.
The Republican-led state legislature sued Andrea Palm, the secretary-designee of the Department of Health Services, for failing to follow emergency rule procedures necessitated by state law. They argued that the order was actually an administrative rule which is ordinarily subject to legislative approval.
As Chief Justice Patience Roggensack, writing for the majority in this 4-3 ruling, noted:
“[T]he Governor’s emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. For example, if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”
As the COVID-19 pandemic is not as time-sensitive an issue as a forest fire, nor would a reaction to a forest-fire affect nearly as many people as Palm’s order, the court ruled that the process of creating such restrictions must be done through the usual methods. This includes presenting the rule to the bicameral legislature and passing it through both houses with a quorum present. It would also allow for journal and open door requirements – requiring the maintenance and publication of a detailed log of legislative proceedings, and allowing for a public audience to legislative proceedings, respectively – to these proceedings as necessitated by Wisconsin’s constitution.
Palm’s order would have shuttered all schools and libraries for the remainder of the year, prohibited all gatherings of any number of people who are “not part of a single household,” closed all places of “public amusement and activity” except golf courses, and ordered religious groups to limit gatherings to “fewer than 10 people in a room,” including for weddings and funerals. Those who violated her arbitrary conditions could receive to “up to 30 days imprisonment, or up to $250 fine, or both.”
The real sore spot in this case was that it wasn’t even the duly-elected Governor Evers who was making the rules. It was “secretary-designee” Andrea Palm, appointed by Evers, but still unconfirmed. Palm’s resume is impressive – she worked for the U.S. Department of Health and Human Services under President Obama, as well as Sen. Hillary Clinton and Congressman Robert Matsui – but that does not give her the ability as an un-elected official to create rules, crimes, and punishments.
“Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin,” wrote Roggensack.
During the arguments of this case, Palm argued that Order 28 was not a rule. At the same time, she cited the very statute governing emergency rule-making as granting her the power to promulgate such “orders.” While Evers complained to CNN that Republican legislators “convinced four Supreme Court justices to not look at the law but look at their political careers” it seems that it is his administration that is in the habit of disregarding legal and constitutional boundaries in the interest of playing politics.
“[U]nder Palm’s theory,” wrote Roggensack in the majority opinion, “she can ‘implement all emergency measures necessary to control communicable diseases,’ Wis. State. § 252.02(6), even at the expense of fundamental liberties, without rulemaking. That interpretation is constitutionally suspect.”
The arbitrariness of Emergency Order 28, and the ill-defined standards for what constitutes a violation of this order, added another layer of difficulty. Since Palm sought to criminalize violations of her order and subject violators to punishments, the court ruled that she failed to understand both the specificity needed for a valid criminal statute, and that “no less specificity is required of a rule to which criminal penalties are assigned.”
For these reasons and others (the majority opinion spans 31 pages, with an additional 49 pages of concurring opinions) the Wisconsin Supreme Court ruled that Palm’s Emergency Order 28 was “declared unlawful, invalid, and unenforceable.”
While local stay at home orders remain in force in Milwaukee, Madison, Green Bay, and other localities in Wisconsin, freedom-loving citizens across the state immediately celebrated by heading out to their favorite local bars, some of which reopened as soon as they heard news of the Supreme Court’s decision.
That’s (most of) one state reopened to the people who live in it and pay its taxes. How long will it take to reopen the rest of America? Will Americans sit around waiting for their legislatures and executives to fight it out? Or will they get tired of waiting and resort to civil disobedience?
[Image Credit: Flickr-Wisconsin National Guard, CC BY-NC-ND 2.0]