Wisconsin Supreme Court Says the State's COVID-19 Lockdown Violated the Rule of Law and the Separation of Powers | Reason - Jacob Sullum:
May 14, 2020 - "'After the Wisconsin Supreme Court overturned that state's COVID-19 lockdown yesterday, Gov. Tony Evers, a Democrat, declared that Republicans 'have thrown the state into chaos'.... But the justices were concerned about a different sort of [chaos]: the kind that happens when governments impose sweeping restrictions on individual freedom, backed by the threat of criminal penalties, without proper legal authority....
""Emergency Order 28, which acting Secretary of Health Services Andrea Palm issued on April 16, ... extended Wisconsin's original March 24 lockdown, which would have expired on April 24, until May 26.... Palm's order banned 'all forms of travel' except those she deemed essential; required 'all for-profit and non-profit businesses' she did not consider 'essential' to 'cease all activities' except for 'minimum basic operations' and work done at home; prohibited 'all public and private gatherings of any number' involving people who were 'not part of a single household'; closed all places of 'public amusement and activity,' whether 'indoors or outdoors,' except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said violations were punishable by a $250 fine, up to 30 days in jail, or both....
"Palm ... argued that her order was authorized by the statute that describes her department's powers. That law says the health department 'may authorize and implement all emergency measures necessary to control communicable diseases'.... The law also authorizes the department to '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, [and] for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease.'
"Another statute explains what the health department is supposed to do when it issues one of those rules. An 'emergency rule,' deemed necessary for 'preservation of the public peace, health, safety, or welfare,' ... has to follow certain procedures, including publication of a statement describing the scope of the rule in the Wisconsin Administrative Register, 'a preliminary public hearing and comment period' if a co-chairman of the Joint Committee for Review of Administrative Rules asks for them, approval of the proposed rule by the governor, and a 'fiscal estimate for the rule' sent to every state legislator.... Palm did not follow those procedures....
"Palm contended that her order did not qualify as a 'rule.' A four-justice majority of the Wisconsin Supreme Court disagreed, noting that state law defines a 'rule' as 'a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.'
"Even while insisting that her order should not be viewed as a rule, Chief Justice Patience Roggensack notes in the majority opinion, Palm purported to impose criminal penalties for violating it. 'It has long been the law in Wisconsin that in order for the violation of an administrative agency's directive to constitute a crime, the directive must have been properly promulgated as a rule,' Roggensack says.
"Furthermore, Palm's order defined the crime she purported to punish without referring to any statute. 'The prohibited "criminal conduct" to which Palm refers is factually defined solely by Emergency Order 28,' Roggensack notes. 'Counsel for Palm ... said that there was only one element that needed to be proved in a criminal prosecution for a violation of Emergency Order 28: that a provision of the order was violated. Such an argument is without legal foundation and ignores more than 50 years of Wisconsin law'....
"Even if Palm's order were not subject to rulemaking requirements, the majority says, it would exceed the scope of her legal powers. While the health department has the authority to 'quarantine those infected or suspected of being infected,' for example, the lockdown goes much further than that, telling 'all individuals present within the State of Wisconsin' they must 'stay at home or at their place of residence' except for Palm-approved purposes. 'She also prohibits "all public and private gatherings of any number of people that are not part of a single household or living unit,"' Roggensack notes. 'Again, this directive is not based on persons infected or suspected of being infected'....
"Justice Daniel Kelly suggests in a concurring opinion joined by Justice Rebecca Bradley.... 'In the Secretary's view, ... there are no statutory or regulatory limitations on her authority to address communicable diseases.... If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process'....
"In a concurring opinion joined by Kelly, Bradley highlights the issues at stake in this case. 'However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance,' Bradley writes. 'In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether'.... 'It is especially in times of emergency that we must protect the rights of the people,' Bradley writes, 'lest we establish a dangerous precedent empowering less benevolent government officials in the future to oppress the people in the name of exigency.'"
Read more: https://reason.com/2020/05/14/wisconsin-supreme-court-says-the-states-covid-19-lockdown-violated-the-rule-of-law-and-the-separation-of-powers/
May 14, 2020 - "'After the Wisconsin Supreme Court overturned that state's COVID-19 lockdown yesterday, Gov. Tony Evers, a Democrat, declared that Republicans 'have thrown the state into chaos'.... But the justices were concerned about a different sort of [chaos]: the kind that happens when governments impose sweeping restrictions on individual freedom, backed by the threat of criminal penalties, without proper legal authority....
""Emergency Order 28, which acting Secretary of Health Services Andrea Palm issued on April 16, ... extended Wisconsin's original March 24 lockdown, which would have expired on April 24, until May 26.... Palm's order banned 'all forms of travel' except those she deemed essential; required 'all for-profit and non-profit businesses' she did not consider 'essential' to 'cease all activities' except for 'minimum basic operations' and work done at home; prohibited 'all public and private gatherings of any number' involving people who were 'not part of a single household'; closed all places of 'public amusement and activity,' whether 'indoors or outdoors,' except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said violations were punishable by a $250 fine, up to 30 days in jail, or both....
"Palm ... argued that her order was authorized by the statute that describes her department's powers. That law says the health department 'may authorize and implement all emergency measures necessary to control communicable diseases'.... The law also authorizes the department to '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, [and] for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease.'
"Another statute explains what the health department is supposed to do when it issues one of those rules. An 'emergency rule,' deemed necessary for 'preservation of the public peace, health, safety, or welfare,' ... has to follow certain procedures, including publication of a statement describing the scope of the rule in the Wisconsin Administrative Register, 'a preliminary public hearing and comment period' if a co-chairman of the Joint Committee for Review of Administrative Rules asks for them, approval of the proposed rule by the governor, and a 'fiscal estimate for the rule' sent to every state legislator.... Palm did not follow those procedures....
"Palm contended that her order did not qualify as a 'rule.' A four-justice majority of the Wisconsin Supreme Court disagreed, noting that state law defines a 'rule' as 'a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency.'
"Even while insisting that her order should not be viewed as a rule, Chief Justice Patience Roggensack notes in the majority opinion, Palm purported to impose criminal penalties for violating it. 'It has long been the law in Wisconsin that in order for the violation of an administrative agency's directive to constitute a crime, the directive must have been properly promulgated as a rule,' Roggensack says.
"Furthermore, Palm's order defined the crime she purported to punish without referring to any statute. 'The prohibited "criminal conduct" to which Palm refers is factually defined solely by Emergency Order 28,' Roggensack notes. 'Counsel for Palm ... said that there was only one element that needed to be proved in a criminal prosecution for a violation of Emergency Order 28: that a provision of the order was violated. Such an argument is without legal foundation and ignores more than 50 years of Wisconsin law'....
"Even if Palm's order were not subject to rulemaking requirements, the majority says, it would exceed the scope of her legal powers. While the health department has the authority to 'quarantine those infected or suspected of being infected,' for example, the lockdown goes much further than that, telling 'all individuals present within the State of Wisconsin' they must 'stay at home or at their place of residence' except for Palm-approved purposes. 'She also prohibits "all public and private gatherings of any number of people that are not part of a single household or living unit,"' Roggensack notes. 'Again, this directive is not based on persons infected or suspected of being infected'....
"Justice Daniel Kelly suggests in a concurring opinion joined by Justice Rebecca Bradley.... 'In the Secretary's view, ... there are no statutory or regulatory limitations on her authority to address communicable diseases.... If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process'....
"In a concurring opinion joined by Kelly, Bradley highlights the issues at stake in this case. 'However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance,' Bradley writes. 'In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether'.... 'It is especially in times of emergency that we must protect the rights of the people,' Bradley writes, 'lest we establish a dangerous precedent empowering less benevolent government officials in the future to oppress the people in the name of exigency.'"
Read more: https://reason.com/2020/05/14/wisconsin-supreme-court-says-the-states-covid-19-lockdown-violated-the-rule-of-law-and-the-separation-of-powers/
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