Wisconsin Justices Clash Over Legality of Lockdown Order

Unless the state high court blocks it, Wisconsin’s stay-at-home order is set to remain in effect through Memorial Day weekend.

A Wisconsin woman expresses her opposition to decisions by the state’s legislature and Supreme Court to proceed with the primary election while holding a sign outside the State Capitol building in Madison on April 7, 2020. (John Hart/Wisconsin State Journal via AP)

MADISON, Wis. (CN) — The Wisconsin Supreme Court quarreled Tuesday over limits to the state health chief’s authority to manage the Badger State’s response to the Covid-19 pandemic, continuing bitterly partisan proceedings in a case brought by Republican lawmakers trying to block an extension to the Democratic governor’s stay-at-home order.

The tense 90-minute arguments conducted via Zoom videoconference featured clashes between justices and lawyers outlining the statutory powers afforded to acting Department of Health Services Secretary Andrea Palm to mitigate the pandemic crisis by, among other measures, shutting down nonessential businesses, barring large public gatherings and limiting residents’ movement.

Wisconsin Governor Tony Evers, a Democrat, reacted to the pandemic by declaring a public health emergency on March 12, followed two weeks later by an initial safer-at-home order set to expire at the end of April. Palm, under her statutory emergency powers and at the behest of Evers, extended that order another four and half weeks until Memorial Day weekend, and the governor has also pitched a phased reopening plan based on meeting certain infection benchmarks.

Palm’s latest move spurred a lawsuit from the GOP-controlled Wisconsin Legislature in the form of a direct petition to the state’s highest court, which currently has a 5-2 conservative majority. The Republican lawmakers asked the court to enjoin Palm’s order and force the health department and the governor to submit any public health directives to statutory rulemaking procedures and ultimately a conservative-majority joint committee for approval.

Ryan Walsh, the legislature’s counsel with the Madison office of nationwide firm Eimer Stahl, said at the outset of Tuesday’s hearing that “this case is not about whether a lockdown is a good idea” or what the parameters of such a lockdown should be, but rather raises basic concerns of administrative law.

Walsh asserted that Palm’s blanket order “is a general order of general application and is therefore subject to rulemaking procedures,” claiming it administratively skipped steps and left the Legislature out of deliberations.

“We know of no order that is more sweeping or applies to more people in the history of our state,” Walsh said, laying out the breadth of its ramifications.

The Legislature has been beating the drum for some time now that any coronavirus lockdown solution should take a county-by-county approach instead of the current one-size-fits-all statewide mandate, opining that rural counties with little or no coronavirus presence should not be held to the same onerous restrictions as more populous areas like Milwaukee County.

Tensions sparked almost the moment Assistant Attorney General Colin Roth began to argue on behalf of Palm on Tuesday.

Justice Rebecca Grassl Bradley, a conservative appointee of former Republican Governor Scott Walker, pointedly asked Roth where in the Wisconsin Constitution did the people allow for an unelected cabinet secretary to unilaterally order 6 million Wisconsinites to shut down businesses and stay home without legislative input.

Grassl Bradley took particular issue with civil and criminal penalties potentially awaiting people who violate social distancing guidelines, including the extreme possibility of jail time.

“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work, among other ordinarily lawful activities?” she asked.

The justice’s point parrots a common refrain among groups protesting shutdown orders in Wisconsin and other states that the shutdowns are a violation of constitutionally protected personal liberties as well as an existential threat to the economy.

The Wisconsin Supreme Court heard oral arguments via Zoom videoconference Tuesday in a challenge to the governor’s stay-at-home order.

Roth responded that “it’s clear the [health department’s] actions are limited by what is necessary to combat the disease at the time,” going on to point out that the health secretary has broad authority in public health emergencies and that the Legislature could not have possibly foretold all the precise responses necessary to control a pandemic and enshrined those precise responses into the statutes verbatim.

At one point, Grassl Bradley summoned a comparison to a 1944 U.S. Supreme Court decision justifying Japanese internment camps, a ruling that has since been cast as a bigoted response to the outset of America’s involvement in World War II.

“Could the secretary, under this broad delegation of legislative power, or legislative-like power, order people out of their homes and into centers where they are properly socially distanced in order to combat the pandemic?” Grassl Bradley asked.

Roth retorted that the case brought by the Legislature was not the same type of constitutional challenge, but Grassl Bradley persisted against the scope of Palm’s power amid the pandemic by proffering a spiritual similarity between the lawmakers’ suit and the landmark Supreme Court decision.

After Justice Daniel Kelly, also a Walker appointee, interrupted Roth’s answer to a question about Palm’s power to impose criminal sanctions multiple times, liberal Justice Rebecca Dallet interjected on Roth’s behalf.

“I want to hear his answer but Justice Kelly keeps cutting him off,” Dallet said, to which Kelly asked her to allow him to conduct his own line of questioning before Chief Justice Patience Roggensack, another conservative, came in to referee and keep things moving.

All told, Roth argued that Palm issued orders to save lives during an unprecedented public health emergency within the bounds of authority granted to her office by state law.

The assistant attorney general warned that enjoining the order with nothing in its place would be “extraordinarily dangerous and unwise,” drawing an analogy to a wildfire that will spread out of control should firefighters lift fire breaks and have no recourse for ensuring residents take the steps necessary to address the situation on the ground.

“People will die if this order is stayed with nothing to replace it,” Roth told the court.

Roth commented that the limits of statutory power can be addressed by lawmakers amending statutes and the high court can judicially review constitutional challenges to Palm’s power when those challenges come up.

As it happens, they already have, as two Wisconsin residents—one of them a GOP donor on the board of free-market think thank the Heartland Institute—filed their own emergency petition with the high court on Monday, alleging unconstitutional limits on religious gatherings and peaceful assembly as consequences of Palm’s order.

The divided high court did not say Tuesday when it would rule in the latest partisan legal fight between Wisconsin’s governing bodies.

Despite the Legislature’s push for a less blunt county-by-county reopening of the state, public health experts like Amanda Simanek, a professor of epidemiology at University of Wisconsin-Milwaukee, resist the idea as unrealistic.

“This idea that doing this regionally would be logistically possible is shortsighted,” Simanek said in an interview Tuesday, adding that loosening restrictions in certain counties will cause people to travel to those counties and potentially increase spread of the virus while also making contact tracing more laborious than it already is as people start moving around more.

Simanek warned against a “whack-a-mole system” where health officials spread resources and personnel too thin catching up to sudden outbreaks as they crop up, advising that local health facilities in rural areas may have limited means to address an outbreak. And she warned that given the opportunity to spread, the virus will.

“It doesn’t stay contained because of some arbitrary boundary, because of lines on a map,” she said.

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