“Unlawful & Invalid”: Wisconsin Supreme Court Strikes Down State’s Lockdown Order
The court ruling reopens the state effective immediately
Jubilant barflies have flocked to Wisconsin’s taverns within hours of a shock state Supreme Court decision striking down Governor Tony Evers’ coronavirus stay-at-home order.
The 4-3 ruling on Wednesday, the first of its kind in the nation, found that Evers’ administration overstepped its authority when it extended the mandate for another month without consulting legislators.
Bars, supper clubs and restaurants across Wisconsin were allowed to open their doors immediately – though some county governments moved quickly to impose their own lockdown rules in place of the governor’s decree.
In many parts of the state, however, overjoyed residents flocked to their favorite haunts after two months of home-bound isolation.
In Appleton, bargoers raised a glass at the Friends and Neighbors bar and the Dairyland Brew Pub, among others.
In Kaukauna, Elizabeth Hietpas took the opportunity to celebrate her birthday with a drink at Club Ritz.
The court ruling essentially reopens the state effective immediately, lifting caps on the size of gatherings, allowing people to travel as they please and allowing shuttered businesses to reopen, including bars and restaurants.
Local governments can still impose their own health restrictions, however. Officials in Dane County, home to state capital Madison, issued a local order minutes after the ruling came down, imposing a mandate identical to the now-invalidated state stay-at-home order.
Evers, a Democrat, first issued a stay-at-home order in March that closed schools and nonessential businesses. The closures battered the state economy, but Evers argued they were necessary to slow the virus’ spread.
His order was supposed to lift April 24, but Health and Human Services Secretary Andrea Palm, an Evers appointee, soon extended it to May 26, well beyond the lockdown expiration date in even virus-battered New York.
The court ruled that while Evers, a first-term Democrat, possesses emergency powers as governor, the stay-at-home directive was effectively imposed by Palm, whose discretion as a political appointee is more limited.
‘We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority … upon which Palm claims to rely,’ the court said.
In a 4-3 ruling the State Supreme Court found the Emergency Orders issued by Secretary Palm as unlawful, invalid and unenforceable. The result of this decision is business can open immediately. Please follow the WEDC guidelines you can find on the TLW website.
— Tavern League of Wisconsin (@tavernleaguewi) May 13, 2020
Evers said he was ‘disappointed’ by the ruling but urged the public to adhere to social distancing practices as the best way to curb the spread of a highly contagious and potentially deadly respiratory virus for which there is no vaccine and no cure.
‘Just because the Supreme Court says it’s okay to open, doesn’t mean that science does,’ the governor wrote on Twitter. ‘We need everyone to continue doing their part to keep our families, our neighbors and our communities safe by continuing to stay safer at home, practice social distancing, and limit travel.’
Republicans asked the Supreme Court to block the extension, arguing that Palm exceeded her authority because the extension amounted to an administrative rule, requiring legislative approval.
Evers’ administration countered that state law clearly gives the executive branch broad authority to quickly enact emergency measures to control communicable diseases.
Attorney General Josh Kaul also noted that Evers’ order was similar to that in at least 42 other states and has saved many lives.
Nearly seven of 10 Wisconsin residents back Evers’ ‘safer at home’ order, based on a Marquette University Law School poll released Tuesday, though that support was down from 86 percent in March.
Evers’ administration faced an uphill battle in convincing the court to keep the order in place. Conservative-leaning justices hold a 5-2 majority. Four conservative justices joined on the majority opinion. The fifth, Brian Hagedorn, joined with liberal justices Ann Walsh Bradley and Rebecca Dallet in dissent.
Roggensack wrote for the majority that the order amounts to an emergency rule that Palm can’t enact unilaterally, and creates criminal penalties that Palm has no authority to create.
‘Rule-making exists precisely to ensure that kind of controlling, subjective judgement asserted by one unelected official, Palm, is not imposed in Wisconsin,’ Roggensack wrote.
The Republican legislators had asked the court to let the rule remain in place for six days to give them time to work with Evers’ administration on an alternative plan. The court refused to grant the stay, saying the two sides have had weeks to come up with something.[Hardcore. Way to go Court!]
The GOP so far has not offered any alternative plans. The state’s chamber of commerce has suggested allowing all businesses to open at once while compelling higher-risk establishments and operations to take increasingly strict mitigation measures such as requiring employees to use protective gear.
Soon after the court’s order, the Tavern League of Wisconsin posted news of the ruling on its website and said it meant businesses could open immediately.
The GOP move against Evers mirrors actions taken by Republican-controlled legislatures in other states, most notably against the Democratic governors in nearby ‘blue wall’ states Michigan and Pennsylvania. All three are critical presidential battlegrounds in November.
Dallet wrote that the court’s decision will ‘undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price.’
Dallet also took aim at the potential delay set up by a rule-making process, writing: ‘A review of the tedious multi-step process required to enact an emergency rule illustrates why the Legislature authorized DHS to issue statewide orders to control contagion.’
The GOP has been working to weaken Evers’ powers since he ousted incumbent Republican Governor Scott Walker in 2018.
During Walker’s final weeks in office, Republicans adopted a set of laws that prohibited Evers from ordering the attorney general to withdraw from lawsuits, a move designed to prevent the governor from pulling Wisconsin out of a multistate lawsuit challenging the Affordable Care Act. The state Supreme Court has upheld those laws.
The high court also backed Republicans over Evers in the GOP’s insistence on holding in-person voting for April’s presidential primary despite the health risks of the coronavirus.
Source: The Daily Mail
The ruling appears to nullify the distinction between essential and non-essential businesses.
The landmark ruling will likely have a ripple effect across the United States, as state lawmakers from coast-to-coast begin to push back against the vast powers claimed by governors in the name of combating Covid-19.
Michigan legislators sued Governor Gretchen Whitmer earlier this month, after she unilaterally extended the state’s state of emergency, which was set to expire on May 1.