Justice Rebecca Bradley of the Wisconsin Supreme Court questioned Wisconsin’s shutdown order on Tuesday, asking whether it amounted to “tyranny,” and what authority the state had to issue it.
The case, Wisconsin Legislature v. Palm, was brought by the Republican-controlled legislature against the Democrat-controlled administration of Gov. Tony Evers and Secretary of Health Services Andrea Palm.
The “Safer-at-Home” order, also known as Emergency Order 28, restricts economic activity throughout the largely rural state, even though the vast majority of coronavirus infections occurred in the Milwaukee area.
It also bans protests and religious gatherings of more than nine people. (Separately, two Wisconsin residents sued Palm at the Wisconsin Supreme Court Monday, challenging the order’s violation of First Amendment rights.)
In questioning the Wisconsin Assistant Attorney General Colin Roth — via Zoom — Justice Bradley, a Republican, demanded to know what constitutional authority the governor had to shut down the state’s economy without consulting the legislature.
She cited the Wisconsin state constitution‘s guarantees of individual rights, and rule “consent of the governed,” in asking Roth to justify the Safer-at-Home order.
“My question for you is: Where in the Wisconsin constitution did the people confer authority on a single, unelected cabinet secretary to compel almost six 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?” she asked.
“Isn’t it the very definition of tyranny for one person to order people tone imprisoned for going to work, among other ordinarily lawful activities? Where does the constitution say that’s permissible, counsel?”
Roth replied that the constitution granted the legislature power to enact statutes to protect public health, and that it had in turn delegated powers to the health secretary to do “whatever is necessary to combat a novel, deadly, communicable disease.”
Asked what limits there were to those powers, Roth replied that people could turn to the judiciary for relief.
Later, he added that the secretary’s powers were limited by “what is necessary” to combat a disease.
Justice Bradley also likened E.O. 28 to President Franklin Delano Roosevelt’s Executive Order 9066, which saw the mass internment of Japanese-Americans. The Supreme Court upheld the order in Korematsu v. U.S., now viewed as a travesty.
Justice Bradley was skeptical of the state’s argument that the Safer-at-Home order had been necessary and justified because the pandemic was too urgent a threat to wait for the legislature to act by passing a statute.
I’ll direct your attention to another time in history, in the Korematsu decision, where the Court said the need for action was great, and time was short, and that justified — and I’m quoting — assembling together and placing under guard all those of Japanese ancestry in assembly centers during World War Two. Could the Secretary, under this broad delegation of legislative power, or legislative-like power, order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?
The attorney argued that Korematsu was argued as a different kind of case. Justice Bradley replied that the issue in common with the Korematsu case was not the basis of the claim, but rather the question of limits to executive authority in both cases. “What are the statutory limits on the secretary’s power? … What can’t DHS do under the statute?”
The attorney replied that the statute provided for authority to take “all necessary action.”
He continued: “I understand Your Honor may be uncomfortable with that broad grant authority,” he said, but that concern is best addressed to the legislature, in asking them to amend the statute that they passed.”
She replied: “Counsel, I think there is a constitutional problem with the legislature giving away this much power to an unelected cabinet secretary. The people never consented to a single individual having that kind of power.”
The attorney, clearly irritated, said that the legislature had delegated that power to the executive to act during a pandemic. “I really encourage you to just think about it,” he said.
Justice Bradley retorted: “I’ve thought a lot about it, and my concern, again, goes back to what the limits are on the secretary.”
She also asked why the statute would not prevent the state from imposing similar shutdowns during the annual flu season. Roth did not cite a legal or constitutional restriction, but answered that such a move would have “no support in the medical community.”
Other conservative justices also pressed Roth for a definition of the limits of the secretary’s order. He said that the secretary could not act in an “arbitrary and capricious,” but could not state the limits more clearly than that.
Democrats say the statute does, in fact, grant sweeping authority to state officials; Republicans argue that the state is ignoring the legislature’s power of oversight.
The arguments reflected emerging partisan divisions nationwide, in which Democrats (generally, with exceptions) want to see shutdowns enforced and extended, and Republicans (generally, with exceptions) want to see the economy reopened.
Left-leaning Slate.com lamented the apparent views of the conservative judges in Wisconsin, complaining that they “appeared to have no compunction about ending social distancing rules” and that they were using “Fox News” arguments.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.
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