“an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin…. [B]y the time the Secretary sees fit to lift her decree… [o]ur State will be in shambles….”

There is a still small, but rising, number of lawsuits seeking court intervention to address state and local excesses in ordering varying degrees of lockdown in response to the Wuhan coronavirus pandemic.

We previously covered the Kentucky and Mississippi religious freedom cases.

U.S. Attorney General William Barr also has expressed concerns with the more general nature of some lockdowns, suggesting they risk becoming ‘house arrest‘ orders, a punishment ordinarily reserved for those convicted of crimes after due process of law, or imposed under quarantine authority for those who are themselves ill and contagious. Home confinement of an entire population, most of whom are not ill or contagious, raises serious constitutional issues.

The Republican-controlled Wisconsin Legislature has just filed suit, going directly to the Wisconsin Suprem Court, seeking to prevent a second lock down order from liberal Governor Tony Evers. Wisconsin Channel 3000 reports:

Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald announced Tuesday that the Wisconsin Legislature is pursuing legal action against Gov. Tony Evers’ extension of the Safer at Home order. The Republican leaders asked the state Supreme Court to block an extension of the Democratic governor’s stay-at-home order. The lawsuit was expected after Evers’ health secretary Andrea Palm last week ordered nonessential businesses to remain closed until May 26. The state Supreme Court announced Tuesday afternoon that DHS officials have until 4 p.m. on April 28 to file a response to the Legislature’s petition and motion.

The Petition (pdf.) and Motion for a Temporary Injunction (pdf.) raise a series of issues, as also described in a Memorandum In Support of the Petition (pdf.):

ISSUES PRESENTED

I. Whether the Department of Health Services (“DHS” or “Department”) violated § 227.24, governing emergency rules, by issuing Emergency Order 28 (the “Order”) without complying with Section 227.24’s procedures.

II. Even if the Department did not violate § 227.24, whether Emergency Order 28 exceeds the Department’s authority by closing all “nonessential” businesses, ordering all Wisconsin persons to stay at home, and forbidding all “nonessential” travel.

III. Even if the Department did not violate § 227.24, whether the Department acted arbitrarily and capriciously in issuing Emergency Order 28.

IV. Whether a temporary injunction should be issued because Emergency Order 28 is unlawful and the Department’s failure to comply with Section 227.24 has irreparably harmed the Legislature by depriving it of the ability to exercise its statutorily prescribed oversight of an unprecedented administrative rule affecting the lives of millions of Wisconsinites.

Notice the focus on statutory executive authority and procedural requirements, which may be an important avenue to be pursued in similar lawsuits.

Here is an excerpt from the Introduction:

Purporting to act under color of State law, an unelected, unconfirmed cabinet secretary has laid claim to a suite of czar-like powers—unlimited in scope and indefinite in duration—over the people of Wisconsin. Per her decree, everyone in the State must stay home and most businesses must remain shuttered (with exceptions for activities and companies arbitrarily deemed “essential”). These restrictions apply not only to metropolitan areas with more COVID-19 cases but also to rural counties with few or no known cases. Just as troubling, the Secretary asserts that her go-it-alone shutdown authority has no expiration date—making it greater than even the Governor’s emergency powers. To be sure, Emergency Order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again. Perhaps it will even run into 2021. In any case, by the time the Secretary sees fit to lift her decree (be it in five weeks or eight months), many Wisconsinites will have lost their jobs, and many companies will have gone under, to say nothing of the Order’s countless other downstream societal effects. Our State will be in shambles…. Incredibly, the Secretary took this unprecedented action without following any of our State’s requirements for rulemaking, while also intentionally waiving any reliance on the Governor’s emergency authorities, set to expire before this Order. If a single bureaucrat can evade the controls and accountability measures that the Legislature has enacted to control agency overreach simply by labeling what is obviously an emergency rule a mere “order,” then all of the reforms that the Legislature has put in place, and which this Court has interpreted and enforced over the years, are a meaningless, dead letter—in their most consequential application…. The Legislature respectfully requests that this Court issue an order temporarily enjoining enforcement of Emergency Order 28, because it is an improperly promulgated rule under Wisconsin Statutes § 227.24, and because it exceeds the Department’s authority under § 252.02 and is arbitrary and capricious in violation of § 227.57(8) to the extent it confines all residents to their homes, prohibits all private gatherings, broadly restricts travel, and closes all businesses deemed nonessential.

The Legislature also respectfully suggests that this Court stay enforcement of its injunction for a period of six days, to allow DHS sufficient time to promulgate a new emergency rule consistent with Wisconsin law (a process that it should begin undertaking as soon as this filing is served on them). Such a stay would fairly accommodate the parties’ mutual interest in preserving the status quo and ensuring no disruption to the State’s efforts to control the spread of COVID-19 while DHS undertakes steps to comply with all applicable statutes.2

Again, note that the legislature is not saying the state has no authority to enact health-protections measures, but disputes the authority to enact a sweeping stay-at-home order.

The respondents have until 4 p.m. on April 28, 2020, to file a response.

Meanwhile. Evers is claiming this is just a legislative power grab:

Republicans are exploiting a global pandemic to further their attempts to undermine the will of the people. But what’s at stake goes far beyond political power–lives are on the line. #THREAD — Governor Tony Evers (@GovEvers) April 21, 2020



