Posted on 05/15/2020 10:19:26 AM PDT by Kaslin
https://thefederalist.com/wp-content/uploads/2020/05/Screen-Shot-2020-05-14-at-4.58.53-PM-998x725.png
MADISON, Wis. — Declaring that the state’s top health official wrongly bypassed legislative oversight, the Wisconsin Supreme Court on Wednesday struck down the Evers’ administration’s extended lockdown of the state.
The 4-3 decision by the conservative-led court declares Wisconsin Department of Health Services Secretary-designee Andrea Palm’s Emergency Order 28 “unlawful, invalid, and unenforceable.”
“Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order,” the ruling notes. “The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.”
Palm’s extended order, issued before Evers’ first stay-at-home edict was set to expire on April 24, criminalized what are generally constitutionally protected activities — free travel, operating a business, attending church, among other such lockdown “crimes.” That’s a point outgoing Justice Daniel Kelly drove home during last week’s oral arguments before the court.
“We require standard pre-exists as a matter of law. … The secretary all by herself created a criminal law,” Kelly told a state Department of Justice attorney defending the order. “Your position is the secretary can identify behavior that is not otherwise criminal, that she can, all by herself, sit down at her computer keyboard, write up a description of behavior, and make it criminal?” Kelly asked.
The attorney, Assistant Attorney General Colin Roth, was forced to concede the point.
Bars, restaurants, and other businesses that Team Evers deemed “nonessential” as part of the administration’s response to the COVID-19 outbreak would be able to reopen, although local jurisdictions could still implement restrictive public safety rules. Evers and the Republican-led legislature will now have to come to terms on a compromise response to the pandemic, a tall order for two deeply divided political sides.
Not surprisingly, the court’s two leftist justices dissented. But so did the court’s newest conservative, Justice Brian Hagedorn, who filed a dissenting opinion in which Justices Ann Walsh Bradley and Rebecca Dallet partially joined.
Hagedorn’s argument is that the case, Wisconsin Legislature v. Palm, is not a “battle over the constitutional limits on executive power.” Hagedorn insists the case is much duller than that, mainly about whether the commands in the order were required to be promulgated as an administrative rule under Wisconsin statute. In short, the legislature has no standing.
“I conclude the Legislature as a constitutional body whose interests lie in enacting, not enforcing the laws lacks standing to bring this claim,” Hagedorn wrote. “Such claims should be raised by those injured by the enforcement action, not by the branch of government who drafted the laws on which the executive branch purports to rely.”
A case pending before the court, filed by two Wisconsin citizens, does indeed raise clear constitutional questions, alleging the government’s abuse of myriad civil liberties. According to Hagedorn’s reasoning, Palm’s DHS has the authority to enforce the penalties that its emergency order effectively created.
Conservative Justice Rebecca Bradley wrote that her colleague’s argument lacked “constitutional analysis,” and that it “affirmatively rejects the constitution, and subjugates liberty.” The majority opinion, written by Chief Justice Patience Roggensack, argues the case is about “the assertion of power by one unelected official, Andrea Palm.” Palm, the majority notes, was and is subject to statutory emergency rule-making procedures established by the legislature.
“Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable,” Roggensack wrote. “Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.”
Evers’s authority to unilaterally act under state law ended on Monday. He attempted to circumvent the emergency statute by having Palm sign the order.
The lockdown, the administration contends, was about “flattening the curve” of virus spread, ensuring ample health-care resources and protecting citizens. But the metrics he laid out to reopen the state have been met, and Wisconsin’s hospitals have plenty of available resources to treat serious COVID-19 cases. Only 11 of the 43 states that issued stay-at-home orders still have lockdowns in place.
Meanwhile, Federal Reserve Chair Jerome Powell on Wednesday warned of a prolonged recession spurred by the freeze of economic activity. The U.S. unemployment rate in April approached 15 percent. In Wisconsin, more than a half-million people have lost their jobs in the two-plus months of the lockdowns.
The Supreme Court’s majority opinion does not conclude that Palm “was without any power to act in the face of this pandemic.”
“However, Palm must follow the law that is applicable to state-wide emergencies. 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 opinion states.
Without legislative oversight, a single elected official could “create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order,” the ruling states.
This article was originally published by Empower Wisconsin.
Thanks for posting. Matt Kittle (MD Kittle) is an excellent writer and a great fill-in radio host for our local Conservatives.
And, yes. ALL of us are piling on Judge Hagedorn this week!
“Such claims should be raised by those injured by the enforcement action, not by the branch of government who drafted the laws on which the executive branch purports to rely.”
Looks like Hagedorn is a can’t-see-the-forest-for-the-trees kind of guy. The executive can’t make up laws on her own, even if she pretends the legislature gave her permission.
So a lawmaker who creates and writes a law has no standing to ensure the law is followed as it was intended?
Its great here in Wisconsin. Half the town is open. The other half is bankrupt and will never open. But we can go out. There are bars and restaurants open. And we can go to parks and the beach. People who want to stay in are staying in. Those who are done with the lock down are out. There is a collective sigh. If you work for a government body you are fine. If you work anywhere else you are wondering where you are going to get money.
More good news!
heres the real idiocy as well:
because she didn’t follow the law there can be no criminal penalites.
WHEN YOU DON’T FOLLOW THE LAW IS WHEN GOVERNMENT CHARGES YOU WITH A CRIME.
Ruh Ro.... Looks like the Chicken Freeper contingent are going to face their worst fears, people free to make their own decisions.
All you WI Fearpers, what will you do now that WI is free?
This is not the last chapter.
If the University doesn’t open, the state will be in a world of hurt for years.
I am curious what a Fearper is? *snigger*
“WHEN YOU DON’T FOLLOW THE LAW IS WHEN GOVERNMENT CHARGES YOU WITH A CRIME.”
Right. This Palm needs to be brought up on charges. Governor needs to be investigated in his role.
“All you WI Fearpers, what will you do now that WI is free?”
Who are you talking about? Every Wisconsin Freeper here is 100% behind President Trump in getting Wisconsin 100% Open For Business. We all despise our dopey Governor and have dubbed him, ‘One Term Tony.’
Or are you talking to the Pearl Clutchers that still think we’re all gonna die from this? ;)
“If the University doesn’t open, the state will be in a world of hurt for years.”
My LibTard sister works in Admin for the Vet School at the UW Madison. She’s been enjoying her PAID VACATION. She freely admits to me that she’s had literally NO work to do these past 9 weeks, and she doesn’t care. She’ll have a job to go back to without missing a beat.
Some days I cannot believe we’re related and were raised by the same two rock-ribbed Conservative parents!
Yes, we had a Mommy AND a Daddy; no made up weirdo combination of parent. ;)
If none of WI Freeper contingent is part of the “Pearl Clutchers” than my most sincere apologies.
I hear the bars are packed!
Fearper
Chicken Freeper
Fear Republic
Freeper Littles
I am sure there are more...
Apology accepted. :)
And yes, the bars are back up and running, which is making a LOT of people HAPPY!
My County of 24K has had 10 cases - NO DEATHS - and not even a hospitalization for covid. We have kind of a dick of a Mayor, so he’s opening things slowly in my Cow Town - though some of our businesses that I wouldn’t have even considered ‘essential’ never closed. Go figure!
It’s a general cluster at all governmental levels, for sure. BUT, the SANE parts of America WILL be back to normal in short order. And we’re mad. And we’re GOING to Remember In November and VOTE accordingly.
Do you want more lockdown? People can get immunity through exposure or a vaccine. Given that the vaccine may never arrive since there has NEVER been a Corona virus vaccine, freedom to chose seems to be a the proper course.
Anyone opposed can stay isolated at home, let their immune system weaken, and then someday still have to come out and face the virus. Of course only those showered with government checks can afford to ride it out at home.
330,000,000 - population
2,900,000 - annual deaths
84,000 - WuFlu deaths
Why is ok to die from anything but Corona?
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