The Wisconsin Supreme Court’s Decision Is Brilliant (to strike down the state’s “Safer at Home” order)

Robert E. Wright. He is a Political Economy at Augustana University.

"Wisconsin’s Supreme Court decided by a 4-3 vote on Wednesday May 13, 2020 to strike down the state’s “Safer at Home” order, its COVID-19 economic lockdown in other words. It did so completely, immediately, and unequivocally. You can read the decision and all the concurrences and dissents here.

Many moving pieces regarding constitutional issues like separation of powers and delegation of legislative powers to officers of the executive branch suffuse the decision. The concurring justices, however, cut through all of that and kept their eyes on the key Constitutional issues, many of which have been discussed by AIER here and here.

Below are key excerpts from the decision. “Palm” refers not to a part of a hand but to the surname of the Wisconsin official whose actions the court declared illegal. Although the decision directly frees only Wisconsin, the principles are broadly applicable to the national government and all US states. Yes, even California.

While many states have already loosened their lockdowns enough to avoid a similar judicial smackdown, it is important to declare unconstitutional all measures that crossed the line from legitimate public health order (which again, may include quarantine [the sick], cordon sanitaire [infected districts], or protective sequestration [uninfected districts] depending on circumstances) into tyrannical power grab so, like the unconstitutional internment of Americans during World War II, it never happens again.

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We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. 252.02 upon which Palm claims to rely.

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Palm points to statutes that she asserts give her broad authority to impose regulation; but it does not follow she can impose regulation without going through a process to give people faith in the justness of the regulation. However, under Palm’s theory, she can ‘implement all emergency measures necessary to control communicable diseases,’ … even at the expense of fundamental liberties, without rulemaking. That interpretation is constitutionally suspect.

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Article I, Section 1 of the Wisconsin Constitution provides that ‘All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.” [If this sounds familiar, see the Declaration of Independence.] 

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At times, legislation is enacted that infringes on a person’s rights despite these front-end procedures [separation of powers; bicameralism], however, for that we have judicial review.

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When a grant of legislative power is made, there must be procedural safeguards to prevent the “arbitrary, unreasonable or oppressive conduct of the agency.”

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Palm cannot point to any procedural safeguards on the power she claims.

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[Palm’s argument about being able to fine and imprison those who break her order] is without legal foundation and ignores more than 50 years of Wisconsin law.

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Constitutional law has generally permitted the Governor to respond to emergencies without the need for legislative approval. … But the Governor’s emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. … In the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.

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Crimes created by the Legislature in statutes must have specificity in order to be enforceable. … Because Palm fails to understand the specificity necessary to a valid criminal statute, she also fails to understand that no less specificity is required of a rule to which criminal penalties are assigned.

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Order 28 exceeds the [statutory] authority to quarantine those infected or suspected of being infected. … This directive is not based on persons infected or suspected of being infected.

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She cites no authority for this vast seizure of power.

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As the United States Department of Justice has recently written in a COVID-19-related case raising constitutional issues, “There is no pandemic exclusion … to the fundamental liberties the Constitution safeguards.” 

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The concurring opinion of Justice Rebecca Bradley is also a brilliant exposition of what used to be considered Civics 099 (i.e., high school level stuff) but apparently today requires detailed explanation, even to state supreme court justices, the dissent of one of whom Bradley eviscerates in footnote 3: “Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution’s guarantee of liberty, Justice Brian Hagedorn shockingly proclaims ‘the judiciary itself must never cast aside our laws or the constitution itself in the name of liberty. … Setting aside the self-contradictory nature of that statement, Justice Hagedorn’s 53-page opinion contains no constitutional analysis whatsoever.” One assumes Hagedorn, like many of us, is suffering from Lockdown Brain. 

Look for more court decisions in the weeks to come, hopefully ones where the Bradleys outnumber the Hagedorns."