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Wisconsin Legislature sues to stop Governor’s Stay-at-Home Order

Wisconsin Legislature sues to stop Governor’s Stay-at-Home Order

“an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin…. [B]y the time the Secretary sees fit to lift her decree… [o]ur State will be in shambles….”

https://www.youtube.com/watch?v=pQKLIEfaEak

There is a still small, but rising, number of lawsuits seeking court intervention to address state and local excesses in ordering varying degrees of lockdown in response to the Wuhan coronavirus pandemic.

We previously covered the Kentucky and Mississippi religious freedom cases.

U.S. Attorney General William Barr also has expressed concerns with the more general nature of some lockdowns, suggesting they risk becoming ‘house arrest‘ orders, a punishment ordinarily reserved for those convicted of crimes after due process of law, or imposed under quarantine authority for those who are themselves ill and contagious. Home confinement of an entire population, most of whom are not ill or contagious, raises serious constitutional issues.

The Republican-controlled Wisconsin Legislature has just filed suit, going directly to the Wisconsin Suprem Court, seeking to prevent a second lock down order from liberal Governor Tony Evers. Wisconsin Channel 3000 reports:

Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald announced Tuesday that the Wisconsin Legislature is pursuing legal action against Gov. Tony Evers’ extension of the Safer at Home order.

The Republican leaders asked the state Supreme Court to block an extension of the Democratic governor’s stay-at-home order. The lawsuit was expected after Evers’ health secretary Andrea Palm last week ordered nonessential businesses to remain closed until May 26.

The state Supreme Court announced Tuesday afternoon that DHS officials have until 4 p.m. on April 28 to file a response to the Legislature’s petition and motion.

The Petition (pdf.) and Motion for a Temporary Injunction (pdf.) raise a series of issues, as also described in a Memorandum In Support of the Petition (pdf.):

ISSUES PRESENTED
I. Whether the Department of Health Services (“DHS” or “Department”) violated § 227.24, governing emergency rules, by issuing Emergency Order 28 (the “Order”) without complying with Section 227.24’s procedures.
II. Even if the Department did not violate § 227.24, whether Emergency Order 28 exceeds the Department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel.
III. Even if the Department did not violate § 227.24, whether the Department acted arbitrarily and capriciously in issuing Emergency Order 28.
IV. Whether a temporary injunction should be issued because Emergency Order 28 is unlawful and the Department’s failure to comply with Section 227.24 has irreparably harmed the Legislature by depriving it of the ability to exercise its statutorily prescribed oversight of an unprecedented administrative rule affecting the lives of millions of Wisconsinites.

Notice the focus on statutory executive authority and procedural requirements, which may be an important avenue to be pursued in similar lawsuits.

Here is an excerpt from the Introduction:

Purporting to act under color of State law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin. Per her decree, everyone in the State must stay home and most businesses must remain shuttered (with exceptions for activities and companies arbitrarily deemed “essential”). These restrictions apply not only to metropolitan areas with more COVID-19 cases but also to rural counties with few or no known cases. Just as troubling, the Secretary asserts that her go-it-alone shutdown authority has no expiration date—making it greater than even the Governor’s emergency powers. To be sure, Emergency Order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again. Perhaps it will even run into 2021. In any case, by the time the Secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the Order’s countless other downstream societal effects. Our State will be in shambles….

Incredibly, the Secretary took this unprecedented action without following any of our State’s requirements for rulemaking, while also intentionally waiving any reliance on the Governor’s emergency authorities, set to expire before this Order. If a single bureaucrat can evade the controls and accountability measures that the Legislature has enacted to control agency overreach simply by labeling what is obviously an emergency rule a mere “order,” then all of the reforms that the Legislature has put in place, and which this Court has interpreted and enforced over the years, are a meaningless, dead letter—in their most consequential application….

The Legislature respectfully requests that this Court issue an order temporarily enjoining enforcement of Emergency Order 28, because it is an improperly promulgated rule under Wisconsin Statutes § 227.24, and because it exceeds the Department’s authority under § 252.02 and is arbitrary and capricious in violation of § 227.57(8) to the extent it confines all residents to their homes, prohibits all private gatherings, broadly restricts travel, and closes all businesses deemed nonessential.
The Legislature also respectfully suggests that this Court stay enforcement of its injunction for a period of six days, to allow DHS sufficient time to promulgate a new emergency rule consistent with Wisconsin law (a process that it should begin undertaking as soon as this filing is served on them). Such a stay would fairly accommodate the parties’ mutual interest in preserving the status quo and ensuring no disruption to the State’s efforts to control the spread of COVID-19 while DHS undertakes steps to comply with all applicable statutes.2

Again, note that the legislature is not saying the state has no authority to enact health-protections measures, but disputes the authority to enact a sweeping stay-at-home order.

The respondents have until 4 p.m. on April 28, 2020, to file a response.

Meanwhile. Evers is claiming this is just a legislative power grab:

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Comments

Look at the Governor’s tweet, and change the word “Republicans” to “Democrats”. Then get yourself a cup of coffee, sit down and think about it…

    DaveGinOly in reply to Rusty Bill. | April 22, 2020 at 10:26 pm

    It’s bushwa any way you look at it. If enough citizens support self-confinement, they’ll stay home. Business would have to shut down because there’d be no customers to serve. The state would be shut down directly by the will of the people. This pompous doesn’t trust the people to do what he thinks is best for them and won’t permit them to do what they think is best for themselves.

    There was a time when government servants didn’t consider themselves nannies in charge of unruly children.

    “If my fellow citizens want to go to Hell, I will help them. It’s my job.”
    Justice Oliver Wendell Holmes

      notamemberofanyorganizedpolicital in reply to DaveGinOly. | April 23, 2020 at 12:21 am

      FYI

      Swedes think their gamble is paying off– their hospitals are not overwhelmed and they have extra bed space and ICU berths. And keeping hospitals from being overwhelmed — “flattening the curve” — is the entire point of a lockdown.

      And they say their curve is pretty flat with minimum social distancing (no lockdowns, more just like common sense and self-limiting trips to the store and bar).

      The writer of the story linked above writes:

      A journalist from French television that I talked to on Sunday admitted, somewhat sheepishly, that ‘it’s almost as if we want Sweden to fail because then we would know it is you and not us that there is something wrong with’.

      Indeed. And it seems exactly that way in the US as well. The liberals and their Renfields the NeverTrumpers have demanded we shut down the country — only with the secondary purpose of “flattening the curve;” the primary purpose was flattening Trump’s economy — and so we have.

      And yet it just may be that Sweden proves this to have been an unnecessary bit of economic suicide.

      ACE OF SPADES

“If only one life” was the constituent measure, there would be no abortion.

Using the Wisconsin Constitution Article 1 Declaration of rights :Right to assemble and petition. SECTION 4. The right of
the people peaceably to assemble, to consult for the common
good, and to petition the government, or any department thereof,
shall never be abridged.

That’s pretty strong language there- the right of the people to peacefully assemble shall never be abridged. Never. Doesn’t say unless the governor declares otherwise. It says never. Doesn’t say unless there’s an emergency. It says never. Doesn’t say unless there’s a public health crisis, it says never Peacefully to assemble- attend church, hold parties, meet in a restaurant, they are all peaceful assemblies…

Then, further down: Freedom of worship; liberty of conscience; state religion; public funds. SECTION 18. [As amended Nov. 1982]
The right of every person to worship Almighty God according
to the dictates of conscience shall never be infringed; nor shall
any person be compelled to attend, erect or support any place of
worship, or to maintain any ministry, without consent; nor shall
any control of, or interference with, the rights of conscience be
permitted,
Ordering churches to not hold religions services certainly sounds like an infringement which shall never be infringed, without exceptions written in.

Then there’s the governor: Powers and duties. SECTION 4. The governor shall be commander in chief of the military and naval forces of the state. He shall have power to convene the legislature on extraordinary occasions, and in case of invasion, or danger from the prevalence of contagious disease at the seat of government, he may convene them at any other suitable place within the state. He shall communicate to the legislature, at every session, the condition of the state, and recommend such matters to them for their consideration as he may deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed. Don’t see anywhere in there where he has the power to order a full state lockdown. Maybe it’s in the penumbras and emanations.

The word “powers” appears 13 times in the Wisconsin Constitution. “Emergency” 3 times. And nowhere are the extraordinary powers being exercised by the governor in Wisconsin even contemplated.

    Milhouse in reply to gospace. | April 22, 2020 at 4:12 pm

    All of those rights are subject to reasonable viewpoint-neutral regulation as to time, place, and manner.

      GWB in reply to Milhouse. | April 22, 2020 at 4:18 pm

      And “reasonable” is pretty narrow when your constitution says “never”.

        Milhouse in reply to GWB. | April 22, 2020 at 6:41 pm

        No, it isn’t, actually.

          Barry in reply to Milhouse. | April 22, 2020 at 8:29 pm

          I knew you were related to the Clinton’s. Only a Clinton could find that “never” means sometimes.

          Milhouse in reply to Milhouse. | April 22, 2020 at 10:37 pm

          It’s got nothing to do with “never”. Reasonable regulations on time, place, and manner, are not included in that “never”.

          Actually, yes, Milhouse. “Reasonable” restrictions will be defined differently for a right labeled with “never infringe” than they will for something not so labeled, or for mere statutory issues. This is the whole difference between “strict scrutiny” and “intermediate scrutiny” and “rational basis.”

          (IMO, “shall not infringe” and “shall never infringe” should have the exact same level of scrutiny. Not sure if that would be the case, in fact, with word-parsing lawyers about.)

      gospace in reply to Milhouse. | April 22, 2020 at 4:57 pm

      The Wisconsin Constitution actually allows reasonable regulation on one, exactly one, recognized right, to whit: Right to fish, hunt, trap, and take game. SECTION 26. The people have the right to fish, hunt,trap, and take game subject only to reasonable restrictions as prescribed by law

      That the Constitution contemplates and mentions reasonable restrictions on one recognized right implies there is no contemplation of reasonable restriction on others. And ordering people to stay in their homes, not go to religious services, etc., fall well outside the definition of “reasonable”.

        Milhouse in reply to gospace. | April 22, 2020 at 6:41 pm

        Restrictions on time, place, and manner are not included in that protection. People exercising their rights still have to obey all generally applicable laws. They’re not entitled to a special exemption just because they’re protesting something, or worshiping Someone, or expressing something.

        The legislature is not disputing this at all. They’re just disputing the Health Secretary’s authority to make such an order on her own.

          gospace in reply to Milhouse. | April 22, 2020 at 8:21 pm

          I’m not even going to reread the Wisconsin constitution to see if the health secretary has the power to suspend or alter constitutional rights. I’ll just tell you- those powers of hers aren’t in the Wisconsin Constitution, and certainly can’t be delegated to her, since those powers to suspend constitutional rights aren’t in there at all.

          Barry in reply to Milhouse. | April 22, 2020 at 8:28 pm

          “People exercising their rights still have to obey all generally applicable laws.”

          They do not and should not obey unconstitutional laws just because you label them “generally applicable”.

          Milhouse in reply to Milhouse. | April 22, 2020 at 10:40 pm

          It has nothing to do with constitutional rights. Generally applicable laws, that are applied in a viewpoint-neutral manner, do not violate the constitution.

          The question here is only whether the Secretary had the statutory authority to impose these regulations. That depends on how you read the statutes, not the constitution.

          DSHornet in reply to Milhouse. | April 23, 2020 at 8:57 am

          “Never” is an absolute. It means ->NEVER.<-

          Kind of like "all" means ALL and "none" means NONE. They're absolutes too.
          .

          Milhouse in reply to Milhouse. | April 23, 2020 at 10:45 am

          “Never” is an absolute. It means ->NEVER.<-

          Of course “never” means “never”. Who denied that? But reasonable viewpoint-neutral regulations as to time, place, and manner do not infringe. Therefore the “never” is irrelevant.

          Just as reasonable searches and seizures do not infringe the fourth amendment, and that would still be the case even if the amendment had said “absolutely free” instead of just “free”.

      The Friendly Grizzly in reply to Milhouse. | April 22, 2020 at 10:28 pm

      Reasonable, to whom

        “Reasonable” is a term the law is very very familiar with. It appears all over the law, and the courts have a very good grip on deciding what is reasonable.

          the courts have a very good grip on deciding what is reasonable
          Ha! SOME percentage of them do. Others have spent decades redefining that very term to mean something most of us wouldn’t even recognize.

          Milhouse in reply to Milhouse. | April 23, 2020 at 10:47 am

          What you would recognize is irrelevant. “Reasonable” is a legal term and is defined by the law. And that was the case in 1788 as well. The constitution uses that term, because the law on it was already well established.

    Frank Hammond in reply to gospace. | April 23, 2020 at 10:11 am

    Wisconsin Constitution? Evers has turned power over to Fake Doctor Andrea Palm, an Obama appointee who is ruling the State without any authority.

    Palm will decide when you go back to work. Don’t like it? Too bad. Read the Maciver Institute website, they are doing a great job covering the Evers and Palm Dictatorship.

      Milhouse in reply to Frank Hammond. | April 23, 2020 at 10:50 am

      The fact that she had a job in the 0bama administration is irrelevant. You speak as if 0bama had appointed her to her current position, which is not true.

        Frank Hammond in reply to Milhouse. | April 23, 2020 at 4:03 pm

        Do you really think Evers found her on his own? He was told to appoint the Fake Doctor to a position of power.

        Have to hand to Andrea Palm, she is a convincing liar.

        Well trained by the Obama administration.

          Milhouse in reply to Frank Hammond. | April 24, 2020 at 12:06 am

          BS. Where on earth did you get that idea? What indication, even slight, is there that he didn’t find her on his own? She applied for the job, just like anyone does.

          It’s not even as if 0bama picked her to work in his administration. You write as if she was his protege or something. In all likelihood he never met her or heard of her in the entire 8 years she spent working at HHS. He just happened to be president at the time. It could have been any Democrat. Indeed, she’d already worked for the Wicked Witch of Westchester when she was in the senate, so if she’d become president Palm would certainly have got a job in her administration too. Probably the exact same job.

I don’t think “Stay At Home” is the will of the people.

“suggesting they risk becoming ‘house arrest‘ orders”?!
Meaning they are not yet, but some magical line crossing will make them so? WTH? Barr, you’ve been in the Swamp too long.

have until 4 p.m. on April 28 to file a response
Why should they have a week to pull this together? The extension was ordered last week. Shouldn’t the secretary already have their arguments marshaled, since they thought they had the authority to order it? It should be a deadline of 4pm tomorrow (the 23rd).

intentionally waiving any reliance on the Governor’s emergency authorities
Shot herself in the foot, there, she did.

Republicans are exploiting
Yeah, yeah, sure. Whatever. Now shut up and get out of the way.

That tweet by the Governor has more irony than the Titanic. And about as much chance to stay afloat.

I realize that this is a legal blog, but it is too late for judicial review. May 12st [ironically May Day] is the deadline for reopening the economy, if we want to have any chance of rebuilding it within the next decade.

The populous, terrified for their own well being allowed government officials to seize dictatorial power over them. These officials have an agenda. This agenda requires that the populous be thrown into a condition of destitution so that they are forced to turn to government largess for their survival. Legislators have had two months to challenge the seizure of these powers which were then used order unconstitutional conditions upon the populous. They did nothing. The legal establishment has had the same amount of time to challenge these actions. They did nothing until last week and that was lackluster at best. The federal government has not only done nothing to stop these unconstitutional actions, but is actively encouraging them. The populous is being pushed to a point where they will be forced to act for themselves, to protect their interests. That will likely result in violence. Is everyone ready for the breakdown of civilization in the USA? Two weeks, people. We have two weeks to save what is left of this nation. A disease is not going to destroy us. Stupidity is.

Can we do that here in Pennsylvania now, please?

    OwenKellogg-Engineer in reply to rdmdawg. | April 22, 2020 at 6:40 pm

    If our state wasn’t run by corrupt politicians top to bottom, why yes, yes we could do that here.

    Milhouse in reply to rdmdawg. | April 22, 2020 at 6:52 pm

    Only if the government has exceeded its statutory authority. Has it? Do you know the relevant statutes and what they do and don’t authorize? This lawsuit is very narrowly based on the specific situation in Wisconsin, and isn’t much use anywhere else.

      DaveGinOly in reply to Milhouse. | April 22, 2020 at 10:36 pm

      The only correct question is “Has the state exceeded its authority under its constitution ?” Statutes, by law (i.e. according to most state constitutions) must be written and applied in such a manner that they conform to the state’s constitution. When you appeal to statutes for authority, you arbitrarily dismiss the possibility that they may be unconstitutional.

        Milhouse in reply to DaveGinOly. | April 22, 2020 at 10:42 pm

        No, it isn’t. There’s no question that the regulations, if authorized by statute, do not violate the constitution. The question is whether the Secretary exceeded her statutory authority.

          Carl in reply to Milhouse. | April 23, 2020 at 9:56 am

          I usually have great respect for the comments by Milhouse, but this time, he errs. If he is correct there could be no unconstitutional statute and the Constitution would be a nullity.

          You’re assuming a great deal, Milhouse. Just because no one has challenged the statute as unconstitutional, or a challenge has been denied by a judge, does not therefore make it actually constitutional.

          But, yes, someone decrying the regulations as “unconstitutional” would need to show the law authorizing said regulations was unconstitutional. I would guess many judicial jurisdictions would require you separate those two claims in any suits.

          Milhouse in reply to Milhouse. | April 23, 2020 at 10:54 am

          I usually have great respect for the comments by Milhouse, but this time, he errs. If he is correct there could be no unconstitutional statute and the Constitution would be a nullity.

          That’s silly. Of course statutes can be unconstitutional. But the statute in question — if it exists — is not, or would not be. The legislature agrees that there’s nothing in the constitution that the challenged orders violate; the only question it’s raising is whether they are authorized by statute.

          Milhouse in reply to Milhouse. | April 23, 2020 at 10:56 am

          You’re assuming a great deal, Milhouse. Just because no one has challenged the statute as unconstitutional, or a challenge has been denied by a judge, does not therefore make it actually constitutional.

          Indeed, but anyone claiming that a statute (or hypothetical statute, since the legislature claims there isn’t one) is unconstitutional has the onus of demonstrating how. And the excerpts of the state constitution that have been cited here don’t show that.

        When you appeal to statutes for authority, you arbitrarily dismiss the possibility that they may be unconstitutional.
        No. You could be assuming they are constitutional. While perhaps not very wise, it is not the same thing as dismissing the possibility.

      OwenKellogg-Engineer in reply to Milhouse. | April 23, 2020 at 6:19 pm

      Milhouse, you rely on a straw-man argument: “Only if the government has exceeded its statutory authority.” No, the argument is that they have exceeded their ‘constitutional’ authority. Nice try, spin again.

“an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin…. [B]y the time the Secretary sees fit to lift her decree… [o]ur State will be in shambles….”

So Governor Evers’ tweet has it bass ackwards… gotcha.

This is my surprised face.

Biggest problem is women with kids. There are so many of them scared to death over this crap.
A lot of them think an idiot like halfwhit mer is doing a great job. I know a couple women who pulled their kids from school and stopped going to work about 2 weeks before these bs stay at home fiats were issued.

    DaveGinOly in reply to 4fun. | April 22, 2020 at 10:40 pm

    Actually good for them. They did what they thought was best for themselves and their children, and didn’t wait for a meddling nanny state to tell them what to do.

    hopeful in reply to 4fun. | April 23, 2020 at 6:39 pm

    Old women who watch the noooz to “be informed” are a big problem, too, IMO. FWIW, I’m an old woman, but too smart to watch the noooz.

Seems to me the governor didn’t want to damage himself politically so he had his Health Secretary to the dirty deed.

Seems to me that we all have to make our way through this ourselves.
I’ll be damned if I will entrust my life to the Government.
I’ll go to work when I feel like it.
( 7 days right now )
I’ll look out for my own safety, and keep my distance.
If there is someplace I don’t think I should go, I won’t.
The Government is not my Parent.
It is subservient to the Electorate.
But, you wouldn’t think that by looking at it.

texansamurai | April 23, 2020 at 9:32 am

Only if the government has exceeded its statutory authority.
____________________________________________________________

do you have any comprehension of the “social contract”
implicit in our constitution? and our similar state constitutions? government exists to serve the people, not to rule the people–when government(or a government officer)operates contrary to the will of the people it is not only our right to resist, it becomes our DUTY to resist– a much higher call–and replace that government/officer by peacable means if possible or other means if necessary

do not live in wisconsin but if the good folks there are faced with some rogue bureaucrat that would trample on their rights will support their efforts to correct the situation by whatever means they see fit–not engage in some puling effort to interpret their state constitution for them

    Milhouse in reply to texansamurai. | April 23, 2020 at 11:00 am

    It depends on what the state constitution says. State legislatures, unlike the USA, are not limited to enumerated powers. They have a general police power that lets them make almost any law that they think the public interest demands, except those explicitly prohibited by the state or federal constitution, or by a valid federal statute.

What an unusual State – the Legislature has sufficient votes to sue the Governor over an ultra vires act but can’t legislate to contravene it, or use the power of the purse to either defund it or defund one of the Governor’s pet projects unless he bends to the will of the Legislature?

Here in Michigan, the Legislature doesn’t have the votes to do anything to stop the dead-eyed Empress of Lansing or her lesbian Kemosabe – High Ho Totalitarianism – Away.

David R. Graham | April 24, 2020 at 2:52 pm

Except in very rare instances, women are horrible line officers. They are often superb staff officers.

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