Wisconsin’s Democratic administration usurped the powers of the state legislature in issuing a lockdown order that called for criminal charges to be filed against anyone who broke it, according to a state Supreme Court decision issued Wednesday.
The court ruling, which offered a powerful summation of the rights of citizens against authoritarian governments, said the administration of Democratic Gov. Tony Evers left state lawmakers out of the loop while imposing restrictions on Wisconsin residents, according to the Milwaukee Journal-Sentinel. The suit was brought by Republican legislators.
The 4-3 ruling, written by Chief Justice Patience Roggensack, focused on the actions of Andrea Palm, an Evers appointee who serves as the state’s health services secretary. Palm worked in the Obama administration and for Hillary Clinton during Clinton’s tenure as a U.S. senator representing New York.
Palm issued Order 28, titled “Safer at Home,” which was designed to prevent the spread of the coronavirus and proposed criminal penalties for anyone breaking the order.
The court, however, said the issue is not prevention but power.
“This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not ‘essential’ in Emergency Order 28,” the justices said in their ruling.
“Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order,” the ruling said, noting that Wisconsin law required Palm to undergo a process that gives legislators veto power over agency policies.
“We do 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 of Wis. Stat. § 252.02 upon which Palm claims to rely,” the court said.
The ruling stressed that the rights of the people of Wisconsin cannot be easily abrogated.
“The people consent to the Legislature making laws because they have faith that the procedural hurdles required to pass legislation limit the ability of the Legislature to infringe on their rights,” the justices said, adding that “Palm cannot point to any procedural safeguards on the power she claims.”
Calling the order an “obvious overreach,” the court ruled that “clearly Order 28 went too far.”
Justice Rebecca Bradley, in a concurring opinion that quoted Thomas Paine and Thomas Jefferson, wrote, “Under the Wisconsin Constitution, all governmental power derives from ‘the consent of the governed’ and government officials may act only within the confines of the authority the people give them.”
“The people of Wisconsin never consented to any elected official, much less an unelected cabinet secretary, having the power to create law, execute it, and enforce it,” Bradley wrote.
“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. 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.”
“Endowing one person with the sole power to create, execute, and enforce the law contravenes the structural separation of powers established by the people,” the justice wrote, later adding, “Preserving the perimeters of power constitutionally conferred on each branch of government is essential for securing the liberty of the people.”
Bradley said expediency cannot trample rights.
“Although consolidation of power in one person may be tempting in times of exigency, for purposes of expeditiously producing an efficient and effective response to emergencies like a pandemic, history informs of the perils of the consolidation of power, and not merely through the exhortations of the Founders and philosophers,” she wrote.
Bradley noted that the state insisted it had the power to arrest Wisconsin citizens.
“In a particularly chilling exchange with this court during oral arguments, the attorney for the state representing the DHS secretary-designee claimed the authoritarian power to authorize the arrest and imprisonment of the people of Wisconsin for engaging in lawful activities proscribed by the DHS secretary-designee in her sole discretion,” she wrote.
“In Wisconsin, as in the rest of America, the Constitution is our king — not the governor, not the legislature, not the judiciary, and not a cabinet secretary. We can never ‘allow fundamental freedoms to be sacrificed in the name of real or perceived exigency’ nor risk subjecting the rights of the people to ‘the mercy of wicked rulers, or the clamor of an excited people.’ Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic,” the justice wrote.
The ruling meant that all statewide restrictions in place banning gatherings were null and void. However, the ruling did not address local orders, meaning that restrictions in some communities remained in place.
Evers attacked the ruling, saying in a statement that “Republican legislators have convinced 4 justices to throw our state into chaos.”
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