On Wednesday, the Wisconsin Supreme Court became the first state high court in the nation to strike down a governor’s stay-at-home order.
The 4-3 decision, led by conservative justices, sided with state Republican lawmakers who argued that the governor’s administration had overstepped its legal authority.
The GOP lawmakers requested a six-day stay to allow for new rules to be worked out with the governor, but the court rejected that stay, saying the two parties had two weeks since the court took up the case to work “in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin,” as the Chicago Tribune reports.
As of late Wednesday night, however, this had not been accomplished. Neither Governors Evers nor legislative lawmakers have offered up any orders or rules as a replacement leaving Wisconsin the only state in the country with no COVID-19 restrictions whatsoever.
Evers said in an interview with the Tribune that he is willing to work with Republicans to write new rules but that the “arcane process” could take weeks and by the time anything is agreed upon “the ship may have sailed” on preventing new cases. Despite having just lost in the state’s Supreme Court, Evers seems to still maintain his use of executive powers is the only effective way to combat the virus.
“Republican legislators convinced four members of the Supreme Court to throw the state into chaos,” Evers told the Tribune. “They have no plan. People are going to get sick, and those Republicans own this chaos.”
Republican lawmakers see things differently. The Tribune further reports:
The top Republican lawmakers who brought the suit, state Assembly Speaker Robin Vos and state Senate Majority Leader Scott Fitzgerald, issued a statement applauding the decision. They also noted that Evers had declined two weeks ago to start negotiating new COVID-19 rules and instead wanted to wait for the court decision.
“We are confident Wisconsin citizens are up to the task of fighting the virus as we enter a new phase,” the lawmakers said. “This ruling allows people to once again gather with their loved ones or visit their places of worship without the fear of violating a state order.”
In the lawsuit, Republicans contended that Evers and Department of Health Services Secretary Andrea Palm could not continue to extend stay-at-home orders indefinitely without seeking approval from the state legislature. The legislative leaders took the matter straight to the state Supreme Court after Evers’ “safer-at-home” order was extended until May 26.
Attorneys for Evers contended that the governor and the state’s top health official acted under clear emergency powers allowed for under state law.
After the Court heard the arguments during an online video conference last week, they ruled against the governor. Now, any COVID-19 public health restrictions must be reviewed by the Republican-controlled state legislature.
The Court’s majority opinion, written by Chief Justice Patience Roggensack, noted that Andrea Palm’s order “confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority” granted to the state’s health director during an emergency. The majority opinion was joined by fellow conservative Justices Annette Ziegler, Rebecca Bradley and Daniel Kelly.
Bradley and Kelly both wrote separate concurring opinions that went even further, asserting Evers’ health director Palm had overstepped constitutional boundaries.
“Where in the constitution did the people of Wisconsin confer authority on a single, unelected Cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply, with no input from the legislature, without the consent of the people?” Bradley asked during oral arguments last week. “Isn’t it the very definition of tyranny for one person to order people for being imprisoned for going to work, among other ordinarily lawful activities?”
The lone conservative justice to dissent was Justice Brian Hagedorn who wrote that “the people have not empowered this court to step in and impose our wisdom on proper governance during this pandemic; they left that to the legislative and executive branches.”
“We are a court of law,” Hagedorn warned. “We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate.” They certainly are there to protect citizens from overreaching government tyranny, though, which is what the entire case was focused on.
Hagedorn was joined in dissent by the Court’s two liberals, Justices Rebecca Dallet and Ann Bradley, who criticized the Court’s decision to reject the six-day stay to allow for a replacement so the state would have some restrictions rather than none at all.
“The lack of a stay would be particularly breathtaking given the testimony yesterday before Congress by one of our nation’s top infectious disease experts, Dr. Anthony Fauci,” Ann Bradley wrote. “He warned against lifting too quickly stay-at-home orders.”
After the Court’s decision, State GOP leaders Vos and Fitzgerald did insist businesses follow the state safety recommendations saying that would be the right approach, the Tribune reports.
“We urge our fellow small business owners to utilize the suggestions as a safe and effective way to open up our state,” they said. “Wisconsin now joins multiple states that don’t have extensive stay at home orders but can continue to follow good practices of social distancing, hand washing, hand sanitizer usage and telecommuting. This order does not promote people to act in a way that they believe endangers their health.”
The Chicago Tribune reported on the immediate responses to the Court’s decision:
In their statement Wednesday night, the lawmakers said they would start working with Evers on rules “in case COVID-19 reoccurs in a more aggressive way,” implying that no such rules might be instituted right away to replace the stay-at-home order.
In the wake of the court ruling, both the Republican leaders and the governor pointed to a new Marquette University Law poll to bolster their positions.
Vos and Fitzgerald noted that the poll found that 77% of Wisconsin voters said they would feel comfortable visiting a friend or family member’s home. Evers pointed to the fact that 64% of voters approved of his handling of the virus.
In immediate response to the Court’s ruling, Wisconsinites packed bars in a pointed show of support for the decision, forsaking social distancing. When asked whether he was worried about Illinois residents from Chicago and the suburbs flocking over the state line to patronize Wisconsin businesses, Evers could hardly contain his disgust.
“I guess the Tavern League would like that. They’d like as many d*** people in their bars as possible,” he said. “It doesn’t take a brain surgeon to understand that if you bring a lot of people together in a small place, somebody’s going to get sick.”
Whether or not it is ill-advised to pack a bar in the midst of a global pandemic, the constitution is not suspended in times of sickness, and we’re glad to see that the Wisconsin Supreme Court has ruled that the governor has no right to do so.
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