Wisconsin Supreme Court shoots down stay-at-home order

I don’t know if this is going to change things on the national level, but the Wisconsin state Supreme Court has stepped in and put the brakes on the Governor’s latest stay at home order. In a closely divided ruling, the court declared that the order was both unlawful and invalid, as well as being “unenforceable.” In their decision, the executive order was described as a “vast seizure of power.” But at the same time, they left the door open for a very similar rule to be put in place, but only if the legislature is involved in crafting it. (NBC News)

The Wisconsin Supreme Court on Wednesday struck down the state’s stay-at-home order during the coronavirus pandemic as “unlawful, invalid, and unenforceable” after finding that the state’s health secretary exceeded her authority.

In a 4-3 ruling, the court called Health Services Secretary Andrea Palm’s directive, known as Emergency Order 28, a “vast seizure of power.”

The order directed all people in the state to stay at home or at their places of residence, subject only to exceptions allowed by Palm, the ruling says. The order, which had been set to run until May 26, also restricted travel and business, along with threatening jail time or fines for those who don’t comply.

I should clarify that the stay at home order was technically issued by the Wisconsin Health Services Secretary, but you know it wouldn’t have happened without a thumbs up from Governor Tony Evers. So in that sense, it’s still an “executive order.”

The ruling was far from unanimous. Justice Rebecca Dallet dissented, claiming that her conservative colleagues on the bench were the ones who were overreaching, saying that the majority ruling was “one of the most blatant examples of judicial activism in this court’s history.”

I’ll confess that I find this ruling both surprising and confusing. While I’m gratified to see the courts (any court, really) exercising some level of restraint on executive authority during a time of crisis, the way this is being done leaves several unanswered questions. On the plus side, calling for the legislature to get involved in the process is a very hopeful sign. If you’re going to temporarily curtail the rights of your citizens regarding freedom of movement and assembly, a far better approach is to pass an actual law rather than having one person dictate the rules.

But with that said, the court’s ruling clearly says that they are not trying to “undermine the executive authority” of Governor Evers. Really? It sounds as if that’s exactly what they are doing. This may still wind up being a good thing, but the wording is confusing at best.

Also, the door has been left open for virtually the same stay at home order to be put in place if the legislature goes along with it. If the Health Services Secretary’s order was so far out of bounds, how would the same directive suddenly become lawful, valid and enforceable if it received the rubber stamp of the legislature?

Finally, I find myself wondering if this decision could or should be appealed to the Supreme Court just to get some sort of definitive guidelines on the books. Other states have issued very similar, if not even more severe stay at home orders without so much as a peep of protest out of their courts. (Gretchen Whitmer comes to mind immediately.) As we’ve noted here frequently, the courts in the United States have traditionally granted executives wide latitude in terms of executive powers during a declared state of emergency. The Wisconsin Supreme Court seems to be a bit of an outlier in this regard.