In a 4-3 split decision, The Wisconsin Supreme Court stopped Democrat Governor Tony Evers and his liberal administration right in their tracks. Their statewide stay-at-home order was tossed out the window. The victory for liberty was short-lived though. The exact same regulations are now in effect at the local level. Not a single thing has really changed.
Wisconsin revolts against the lockdown
The political circus was in full swing Wednesday with all the dogs, ponies and elephants one would expect. There were even a couple of “now you see it, now you don’t” magic acts. One of the state’s conservative Justices jumped ship to agree with the Democrats that the legislature didn’t have a leg to stand on, but it didn’t help.
The progressive viewpoint was overruled by the conservative majority on technical grounds. Health Services Secretary Andrea Palm overstepped her tape marks so the top Wisconsin court declared her quarantine order “invalid, and therefore, unenforceable.” That meant businesses and restaurants could open immediately. “Today, Republican legislators convinced four members of the Supreme Court to throw the state into chaos,” the liberal governor whined.
Businesses on the verge of closing their doors forever had begged their state lawmakers for relief from the repressive quarantine measures. After all, by now, everyone knows it’s really not much worse than the flu. Since it will be with us forever, sooner or later everyone is bound to catch it. There is no need for the cure to be worse than the disease.
The Supreme court of Wisconsin took a hard look at the issue and agreed, but not because they thought that the quarantine was overly restrictive, only that the person who issued it lacked the proper authority. That left the door open for liberals to shift the oppressive regulations down a notch to the county level, where they remain perfectly legal. Dane and Madison Counties had theirs in effect within hours. “We want to let the people of Dane County know that, as far as the guidelines, when you wake up tomorrow it’s going to be the same as when you woke up this morning,” Dane County official Joe Parisi gloats.
A mere technicality
Health officials put Ms. Palm’s initial “safer at home” order into effect on March 25 at the Governor’s request. That was all perfectly legal. In April, she issued an extension that continued the lockdown until May 26 and the legislature challenged it.
Chief Justice Patience Roggensack, Justice Daniel Kelly, Justice Annette Ziegler, and Justice Rebecca Bradley teamed up to overturn the order. In a surprise move, conservative Justice Brian Hagedorn sided with the liberals for reasons of his own. Justice Ann Walsh Bradley and Justice Rebecca Dallet, opposed the ruling as expected.
They had two very narrow and specific issues in front of them. First they needed to decide if Palm broke Wisconsin state law when she extended the order, then they had to decide if the order she issued “exceeded the authority” she had by “closing nonessential businesses, ordering state residents to stay at home and forbidding nonessential travel.”
Is it a rule or an order?
The Republicans argued Palm broke the law because she didn’t follow the rules requiring “legislative oversight” even for emergency rules. The liberal lawyers asserted that what she wrote was an “order” not a “rule” so should be exempt. The court disagreed, after they beat each other up in chambers over it for a while. They also leaned in favor of agreeing that “confining people to their homes, forbidding travel and closing businesses backed by criminal penalties” is a no-no. She did exceed her authority under Wisconsin law on that one.
Justice Kelly was quick to point out that he might agree with the majority but it had nothing to do with whether it was a good idea or not. “The order may be a brilliantly conceived and executed response to COVID-19. Either way, that is not the question before the court.” Right-wing justice Hagedorn went rogue. He didn’t think they should even be wasting their time on it. “We are allowing the legislature to argue its own laws are unconstitutional, a legal claim it has no authority to make.” Later he added, “The legislature may have buyer’s remorse for the breadth of discretion it gave to DHS.”
Both sides are squaring up for an ongoing battle. The Republicans could write new laws or they could leverage the administrative rules process regarding emergency laws. Writing new ones would be quicker, if they can get enough votes for a deal. That doesn’t look promising when they can’t even agree on a pandemic response strategy.