Let's talk about what the Wisconsin Supreme Court decided today.
In a 4-3 decision, the Court determined that Andrea Palm, Secretary-designee of the Department of Health Services, unlawfully entered Emergency Order 28, which, among other things, ordered people in WI to stay at home, not travel, and close non-essential businesses.
The WI legislature sued to strike down her order. Palm said, "I don't the legislature has standing to do that." And in the majority opinion, Chief Judge Patience Drake Roggensack (real name), said, basically, yes they do because you have intruded on their core function.
Then the Court said, look, you made a rule so you had to follow rule-making procedures and you didn't! But Palm said, I didn't make a rule; I issued an order.
Rule! Order! Rule! Order!
Rule! Order! Rule! Order!
The Court decided, based on precedent about a zoning regulation, that it was a "rule" because it applies to all people in Wisconsin at any time -- a general class that can have people added to it.
If we allowed "unelected" officials (that word comes up a lot) to singularly decree things that result in criminal penalties, it would raise serious constitutional questions. The public demands a process to assure it of the regulation's justness.
So, the order is a rule and it's unenforceable.
But the Court isn't finished yet.
Even if the order were an order not a rule, it exceeded Palm's power.
But the Court isn't finished yet.
Even if the order were an order not a rule, it exceeded Palm's power.
Please keep in mind that the Court did not need to decide this part because it already has a basis for its decision. The Court says it doesn't like that Palm's order isn't used on infections. It doesn't define the precise scope of her authority, just that this was too much.
And then! The Court tells us over and over that this case is not about the Governor or his authority. Then it proceeds to talk about the Governor and his authority...
The Governor's emergency powers exist when he doesn't have time to get legislative approval, but in a pandemic, the Governor can't use emergency power indefinitely.
There are lots of pages of words, but that's the gist of it. She should have followed different procedures. She doesn't have this much power. The Court doesn't like any of this. The end.
