The Wisconsin Supreme Court recently struck down part of Governor Tony Ever’s stay-at-home order because the governor and state Department of Health Services enacted the order without any oversight from the legislature which violated the state constitution. This decision has predictably been viewed through a partisan lens—a conservative Supreme Court striking back against a Democratic governor. But this framing is wrong.
Instead, the Wisconsin Supreme Court’s decision should be seen as a victory for the principle that even in a crisis, the rulemakers must follow the rules. Regardless of how anyone feels about the orders themselves, if the governor and Health Secretary had worked with the legislature as they’re required to—even during crises—they could have crafted a constitutional law that the State Supreme Court likely would have upheld.
The Wisconsin Supreme Court’s decision strengthens critical separation of powers principles that protect individual liberty.
In Wisconsin, just as in every state in the United States, the power to make laws rests in the hands of the legislature. Lawmaking can be challenging, but as the state Supreme Court explains, “the procedural hurdles required to pass legislation limit the ability of the Legislature to infringe on [individuals’] rights.” This structure ensures that when lawmakers enact bad laws that infringe on liberty, the people will be able to hold those lawmakers accountable. On the other hand, state officers are largely unaccountable since they are not directly elected.
When legislative power is handed over (delegated) to state officers, it must be done in a limited fashion to ensure that government accountability is not compromised. One critical safeguard is that the authority given to government officials must be limited and defined rather than open-ended and limitless. Another protection is the principle that new rules enacted by officers must be subject to public scrutiny through a process that allows for public comment.
But in response to the COVID-19 pandemic, the Wisconsin Governor issued an order granting Department of Health Services Secretary-designee Andrea Palm nearly limitless power to respond to the crisis without any form of accountability. Even though Palm is not elected by the people and has not yet been confirmed by the state legislature, she was authorized to issue orders to shut down broad swaths of the state’s economy. And Palm’s orders could continue indefinitely without being subjected to public scrutiny. In other words, Palm’s authority violated key safeguards put in place to ensure that rulemakers remain accountable.
A majority of the Wisconsin Supreme Court held that this was unlawful. Palm’s orders qualified as rules which applied generally to the whole state of Wisconsin. Accordingly, they needed to be enacted through the proper channels. The Court explained that these rulemaking procedures exist “precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin.” Even more egregious was the fact that anyone who violated Palm’s orders could be put in jail solely for violating the order.
The Court recognized that emergencies might require a governor or other government officials to respond without time for deliberation or process. “But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely” Instead, government officials must turn to the legislature to enact specific laws that address the pandemic. Encroachments on liberty must be based on explicit authority rather than inferred from generalized emergency powers.
Justice Rebecca Bradley, in her concurrence, made this point even more explicitly. She explained that putting the power to make and enforce laws into the hands of a single unelected individual was the definition of tyranny. Even though “consolidation of power in one person may be tempting in times of exigency,” history showed that such power could frequently be abused in the name of the public good. For instance, President Franklin D. Roosevelt unilaterally rounded up Japanese-Americans during World War II and placed them in internment camps on the misguided belief that this was in the public good. Justice Bradley’s point is not that stay-at-home orders during a pandemic are necessarily tyrannical or improper, but that checks and balances are needed to ensure that government power is not abused in the face of an emergency.
When individual government officials claim limitless power, liberty is in jeopardy. Fortunately, the separation of powers exists to ensure that the government remains accountable. In an emergency, these vital principles are more important than ever. The Wisconsin Supreme Court’s decision reminds us that these safeguards of liberty cannot be cast aside during a pandemic.