A Republican lawsuit could force Wisconsin to reopen immediately
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A Republican lawsuit could force Wisconsin to reopen immediately

Wisconsin Assembly Speaker Robin Vos (R-Burlington), left, and Speaker Pro Tempore Tyler August (R-Lake Geneva). | Andy Manis/Getty Images

If successful, the GOP lawsuit could permanently disable the state’s public health agency.

It’s tough to exaggerate the stakes in Wisconsin Legislature v. Palm, a lawsuit filed by Wisconsin’s Republican-controlled legislature that seeks to halt that state’s coronavirus-related stay-at-home order. The Wisconsin Supreme Court, which is also controlled by Republicans, will hear oral arguments in this case on Tuesday.

The immediate question in Wisconsin Legislature is whether the head of the state’s health agency, Andrea Palm, exceeded her authority when she ordered “nonessential” businesses closed within the state and instructed most people in Wisconsin to remain at home — an order that was initiated on March 24 and then extended on April 16.

But the case threatens much more than a single order that Palm handed down to deal with a single emergency. Among other things, the Republican legislature asks the Republican state Supreme Court to permanently strip Palm — and anyone else who holds her job in the future — of much of their ability to swiftly respond to a public health emergency.

Under the legislature’s proposed framework, the state’s health agency would be stripped of its authority to issue broad public health orders like the state’s stay-at-home order, unless it completed a lengthy process that takes two or three weeks at a minimum. Then, the GOP-controlled legislature also seeks the power to “delay or suspend” Palm’s public health order after the state health department finally completes this process.

You can see the problem with this process: Give a pandemic two or three weeks to spread unchecked and any public health order the legislature approves would be too late.

What’s at stake here is that the state’s health department could be permanently stripped of its ability to react quickly to public health emergencies — not just the coronavirus pandemic, but future public health emergencies as well. Many states also have public health laws that resemble Wisconsin’s. So it is at least possible that other state Supreme Courts could follow Wisconsin’s lead if Wisconsin Legislature reads the state’s law narrowly.

Palm’s authority to deal with a public health emergency is broad

Wisconsin Legislature involves a state law that gives the state’s Department of Health Services extraordinarily broad power to confront a public health emergency.

Among other things, the department may “close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” It may “issue orders … for the control and suppression of communicable diseases,” and these orders “may be made applicable to the whole or any specified part of the state.” And, on top of all that, an additional provision permits the health department to “authorize and implement all emergency measures necessary to control communicable diseases.”

The legislature claims that these powers should be read narrowly to prevent Palm from handing down the broad stay-at-home order at issue in this case, but their primary argument turns on an arcane distinction between “rules” and “orders.”

Briefly, the legislature points to a state law defining the word “rule” to include any “general order of general application that has the force of law.” According to the legislature’s brief, the stay-at-home order counts as a rule “because it applies to every individual, school, and business in the State,” and therefore qualifies as a “general order of general application.”

The legislature concedes that certain narrow orders, such as “an order directed to a specifically named person or to a group of specifically named persons that does not constitute a general class,” do not qualify as “rules.”

This distinction between “rules” and “orders” matters because the process for handing down a new rule is extraordinarily onerous. Even under an expedited process permitted for “emergency” rules, a state agency must first draft a “statement of the scope of the proposed emergency rule.” That statement then must be reviewed and approved by the governor and the state Department of Administration, and then it must be published in an official state publication that only publishes once a week.

Then, after the statement is published, the agency must complete a 10-day waiting period before it is allowed to move forward, with no apparent way to waive this requirement. And then the rule can be delayed even longer if certain legislative leaders require the agency to hold a public hearing on the new rule. And then the new rule can potentially be suspended by a legislative committee — which may require the agency to start this process all over again.

So, if the state’s stay-at-home order is designated as a “rule,” that means the order is unlawful unless Palm completes a weeks-long process and then gives Republicans in the state legislature an effective veto power over her order.

Palm’s brief, meanwhile, makes the case that her stay-at-home order is merely an “order” and not a “rule.” Among other things, she argues that the stay-at-home order “is not of ‘general application’ because it responds only to a specific, limited-in-time scenario” — that is, to qualify as a “rule,” the stay-at-home order would need to lay down lasting restrictions that extend beyond the coronavirus pandemic.

Palm also makes a strong argument that the legislature’s proposed definition of the word “rule” cannot be squared with the state’s public health laws. Recall that the legislature claims that this order qualifies as a rule “because it applies to every individual, school, and business in the State.” But here is the text of a state public health provision allowing Palm to issue both rules and orders to prevent the spread of disease:

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 and things infected or suspected of being infected by a communicable disease and for the sanitary care of 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, or to any vessel or other conveyance.

Pay attention to the bolded language, which explicitly states that a mere order “may be made applicable to the whole” state. This language is tough to square with the state’s suggestion that an order which applies statewide should be classified as a “rule.”

Setting aside the question of what Wisconsin law actually requires of Palm, there are strong practical arguments for why Palm should not be able to shut down many of the state’s businesses indefinitely, at least without seeking legislative approval first. Palm’s actions are almost certainly justified, given the ongoing public health emergency. But the state’s public health law does concentrate an awful lot of power in one individual.

Yet, while there are good reasons why Wisconsin residents should want a democratically elected legislature to oversee Palm’s actions, the fact remains that Wisconsin’s legislature is one of the most gerrymandered legislatures in the country. In 2018, Republicans won 63 of the state assembly’s 99 seats — despite the fact that Democratic candidates received 54 percent of the statewide popular vote.

If the state Supreme Court does side with this gerrymandered legislature, that means that Wisconsin Republicans will gain a powerful veto over the state’s ability to manage the pandemic. And Palm may be forced to drag her feet through a weeks-long process if she wants to reinstate even some parts of her stay-at-home order.


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