The Wisconsin Supreme Court Rules for Liberty

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Dan O’Donnell analyzes the Wisconsin Supreme Court’s decision striking down the “Safer at Home” order.

“Irony” might just be the most misunderstood word in the English language.  It does not mean “coincidence” and it is not—as Alanis Morissette misled an entire generation to believe—a bummer such as “rain on your wedding day.”

True irony is Wisconsin Health Services Secretary-designee Andrea Palm breaking the law when she issued an order making almost everything unlawful.

On Wednesday, the Wisconsin Supreme Court rained on the parade of increasing tyrannical decisions coming from Palm by striking down her “Safer at Home” order.

“[Palm] broke the law when she issued [“Safer at Home”] after failing to follow emergency rule procedures,” the Court wrote in a 4-3 majority opinion that was as notable for what it didn’t say as for what it did.

Because of the narrow question put before the Court in the State Legislature’s lawsuit, absent was a broader decision on the constitutionality of lengthy government-mandated shutdowns and quarantines that infringe on the most basic rights of the citizenry.

Instead, the Court was asked only whether Palm failed to follow the law governing rulemaking procedures by state agencies and, “even if rulemaking were not required,” whether “Palm exceeded her authority by ordering everyone to stay home, closing all ‘non-essential’ businesses, prohibiting private gatherings of any number of people who are not part of a single household, and forbidding all ‘non-essential’ travel.”

While some may have preferred a broader challenge to the constitutionality of pretty much everything the Evers Administration has done since first shutting down the state more than two months ago, the Legislature was wise to avoid these broader questions since it was so patently obvious that Palm violated the law when she issued “Safer at Home.”

Wisconsin Statute § 227.04 governs emergency rules such as Palm’s, and provides that “an agency may…promulgate a rule as an emergency rule without complying with the notice, hearing, and publication requirements under this chapter if preservation of the public peace, health, safety, or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.”  

This is limited, however, by Wisconsin Statute § 227.06, which subjects those rules promulgated by state agencies to legislative review by “the joint committee for review of administrative rules.” 

Needless to say, Palm never gave the Legislature the chance to review “Safer at Home.”  It merely took effect with the force of law (and 30 days in jail and $250 in fines as potential penalties for violations) as soon as she signed it.  The Legislature was wholly shut out of the legally mandated rulemaking process.


To read the entire column, please click here.