Wisconsin has a horrible Supreme Court
On Wednesday last week, the Wisconsin Supreme Court voted 4-3 to declare unlawful the state’s Safer at Home regulations and, as a result, has destroyed the public health model in Wisconsin. The decision not only renders powerless the state’s Department of Health Services but also, as confirmed by a recent opinion by Attorney General Josh Kaul, county health officers. We, as citizens and business people, must fight the COVID-19 pandemic on our own.
The court gave us an awful decision. The majority’s ruling, as Justice Rebecca Dallet’s stinging dissent points out, is wrong on the law and is a stunning example of judicial activism. But she is too kind. The court’s decision stinks of politics and the majority justices, oblivious to the actual health emergency in this state, ended a 144 year tradition of state and county public health partnership in Wisconsin without even a six-day stay to come up with a new approach.
The majority opinion, written by Justice Patience Roggensack, declares Safer at Home’s Order 28 illegal because it is not an order but a rule that requires legislative approval that was never given. It is a rule and not an order because as “a general order of general application” it affects everybody in the state. This is the guts of the decision.
This is a mind twister, certainly, but a reading of the statute itself makes clear the legislature never meant to limit the powers of the Department of Health Services in this way. Here is the text of the law: The department may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities... jails, state prisons, mental health institutions, schools and public buildings and connected premises. Any rule or order may be made applicable to the whole or any specified part of the state….
The law states that the Department of Health Services is not limited to issuing either orders or rules, but can issue both and that its jurisdiction involves not just specific classes of people in the state, but the whole state. But the high court was never interested in following the law. Their interest was to create new laws that couldn’t be vetoed by Gov. Tony Evers.
The court decision gives us a result that actually nobody wanted. Gov. Evers, a Democrat, wanted Safer at Home and that’s trashed. The Republican opposition, however, said they wanted some kind of regional COVID-19 regulations, perhaps approved by county boards. But now none of that is possible. The Supreme Court, whether intentionally not, pulled the rug from under county health officers. On Tuesday, Wisconsin Attorney General Josh Kaul said that the high court’s decision doesn’t directly endanger the statute that empowers county health officers, but he suggests these authorities limit their enforcement to ordinances where criminal penalties are laid out in advance. After the court decision, Kenosha, Brown, Calumet, Manitowoc, Outagamie and Winnebago counties withdrew their stay-at-home orders and other counties, like Marathon, issued only unenforceable guidelines.
Life, English philosopher Thomas Hobbes observed, is nasty, brutish and short. We create governments to keep us safe. We form armies to protect us from invaders. We hire police officers and judges to shield us from murderers and thieves. For nearly a century and one half, this state hired public health officials to guard us against deadly illness. No more. Every Wisconsin citizen must face COVID-19 and every future plague by themselves. The Supreme Court could have given us an honorary medical degree or, at least, a container of Sani-Wipes. But no, instead, we received that kind of liberty that invites death. We fear the worst.