As I was drifting off to sleep last night, I heard the dulcet tones of Wisconsin governor Tony Evers opine that the conservative majority of the state Supreme Court was forcing the state to reopen by overruling him. I didn’t stay awake long enough to learn whether that meant everyone in Wisconsin was going to die. I hope not. I have some friends there, and always enjoyed the Friday night fish fry and polkafest.
But it struck me as curious that the governor would say that, given the first paragraph of the court’s opinion.
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. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers’ Emergency Order or the powers of the Governor.
The opinion is 161 pages in its entirety, and as much as I like Wisconsin, I don’t like it that much. There’s little question that the tensions between the Democratic governor and Republican legislature are strained, and that there will be significant difficulty getting the two branches of government to work together, reach accommodations to protect the citizens of Wisconsin.
This decision, regardless of whether it’s right or partisan hackery will wreak some havoc, turning the situation from one where a central dictate for all becomes an empty void to be filled by disagreement about what to do and exacerbated dispute, eliminating a single cohesive source of direction for the state. Does Wisconsin open up or not? Does it do so now because there’s no order to do otherwise or will the governor and legislature fill the wound opened by the court? Who’s in charge?
One thing is clear: It’s not Andrea Palm. Palm is the Wisconsin Secretary-designee of the Department of Health Services. She’s not elected, which is noted more as a slur than anything meaningful since she’s the appointee of the governor who was elected. She’s not confirmed, which may be more significant, although it may also reflect the inability of the Wisconsin lege to be cooperative with a governor from the other tribe. And her decision to shut down Wisconsin isn’t remotely controversial. What is controversial is that it wasn’t the Republicans who did it, and she has yet to lift her order and open the state up as some would like.
The gravamen of the decision is whether the closure was done by emergency order or rule, and if the latter, whether it was done in accordance with the state’s administrative procedure law. Who cares, right? I mean, they’re cheeseheads, for crying out loud. But what is worthy of consideration is that we’re now moving beyond the stage of emergency, the immediacy of dealing with a life and death crisis, into the stage where law and rights are back in play.
As was realized the other day, the constitutional rights of the residents of Santa Clara County, California are whatever a sex-crimes prosecutor, Angela Alvarado, decides they are. Did anyone elect her? Does she have any basis for making a decision as to who gets to breathe free air and who doesn’t? Is there any lawful basis to put your rights in her hands? And yet there she is, sitting in front of her computer screens by the telephone, telling cops to bust ’em or let ’em be for no better reason than she feels like it.
Is the question whether Palm’s order is right? Or wrong? Or just that someone has to make a decision and she was the one who did so, right or wrong? At the outset of the pandemic, the public needed and wanted guidance, and was largely willing to put their fate into the hands of people who, they believed, knew better than they did and would put their best interests first. Whether that’s the case can be argued at length, but it’s irrelevant. At that moment, someone needed to take control. Palm did.
But over time, and it’s now going into two months of pandemic life, it was inevitable that the competing forces of government would start wondering why they weren’t in charge, or at least given a say, and who made the governor, the president, Palm and Alvarado, the kings of the world?
Scott Fitzgerald, the leader of the Republican majority in the Wisconsin Senate, said lawmakers had long been seeking a voice in the conversation about how to respond to the pandemic.
For the moment, Mr. Fitzgerald said, residents would use their own judgment. “People understand, if you don’t want to go to church, you don’t go to church,” he said. “If you don’t want to go to work, you don’t go.”
It’s true that the ruling holding the Shelter in Place order was unlawful, including its criminal penalties which were a wholesale invention of Palm to put some teeth into her command to the residents of Wisconsin, does not require the state to open or people to leave their homes. If they prefer to remain where they are, no cop will come to their front door to demand they go to work or else.
As for senate majority leader Fitzgerald’s complaint that the legislative Republicans just want a voice in the conversation, it’s not as if they couldn’t use that legislative power whenever they felt like it and contribute whatever they wanted to the decision-making. Instead, they got a big court win that may well be legally correct, and may even be a proper limitation on the usurpation of power by the bureaucrats of the executive branch who create crimes at their whim, but they’ve left the state in disarray in the wake of the decision. Was that all they have to contribute to the discussion and the safety and welfare of Badgers? Palm and Evers may well be wrong, but there is no one right at a time when someone needs to be in charge.