The Wisconsin Supreme Court’s conservative majority seems poised to rule against Governor Tony Evers’ “Safer at Home” order, though it’s not entirely clear what that might mean.
The Republican leaders of the state legislature sued Department of Health Services Secretary Andrea Palm, arguing that she lacks the authority to issue an order closing businesses and prohibiting gatherings.
The Supreme Court heard the case by Zoom video conference Tuesday morning.
Arguing for the Evers administration, Assistant Attorney General Colin Roth was interrupted just about 15 seconds into his argument by Justice Rebecca Bradley, who cited the state constitution’s guarantee of individual liberty.
“My question for you is where in the constitution did the people of Wisconsin 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?” Bradley asked. “Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities? Where does the constitution say that’s permissible?”
“The constitution provides that the legislature may enact statutes to protect the public health. And that is exactly what the legislature has done” in allowing executive branch agencies to enact emergency orders, Roth said.
Bradley also compared the order to internment of Japanese Americans during the Second World War and compared coronavirus to the seasonal flu.
“The DHS secretary could step in and do this every single flu season every year because the flu kills tens of thousands of people in America every year,” she said. “And that’s a communicable disease.”
“I think the DHS secretary, if they tried to do that every flu season, would have no support in the medical community for imposing that kind of restriction,” Roth said.
In seven months of the 2019-20 flu season, all six strains of influenza combined killed 167 people in Wisconsin. Just in the past eight weeks, coronavirus has killed 340.
Roth also argued that allowing local cities and counties to regulate their own restrictions would backfire because “the virus doesn’t respect county boundaries.” He noted that at one point, most cases were confined to Madison and Milwaukee, but a new outbreak in Green Bay as flared up in just the past week.
Chief Jusice Patience Rogensack responded that the Green Bay outbreak primarily affected workers in a meat packing plant there. “It wasn’t just the regular folks in Brown County,” she said.
Brown County currently has more than 1,400 cases, and about 522 cases per 100,00 residents — by far the highest rate of infection in the state.
Arguing for the Republican legislature, attorney Ryan Walsh said the case isn’t about the substance or merits of the order.
“The coronavirus crisis raises a number of fundamental and complex policy questions. Those are not the questions before this court today,” he said. “This case is not about whether a lockdown is a good idea how far one should go or whether and when Wisconsin should reopen in the months or years before a vaccine is developed. It’s not even about the governor’s ample powers to respond to a public health emergency under section three 2310 subject to the legislature’s oversight. This case instead raises first a basic issue of administrative law, whether the most consequential sweeping regulation likely ever issued in our state’s history, applicable to every person, synagogue, church, mosque, business, city, town and County. In Wisconsin is a general order of general application.”
He said the legislature is not seeking an immediate end to the “Safer at Home” order, but rather an order forcing DHS to work with the legislature on a new plan and giving them six days to get it done — even while conceding the procedure the legislature wanted DHS to use would take at least 12 days.
Roth, the governor’s attorney, said the fact that the legislature isn’t even seeking an immediate end to the order demonstrates that they know how dangerous that would be.
“(The legislature) understands that if safer at home is enjoined with nothing to replace it and people pour out into the streets, that the disease will spread like wildfire and we will be back into a terrible situation of an out of control virus with no weapon to fight it,” he said. “No treatments, no vaccine, nothing. People will die … that’s exactly what will happen.”
The seven justices will meet in closed conference to consider their decision at 1:30 Tuesday afternoon.