Leaders of the state Legislature filed suit in the Wisconsin Supreme Court on Tuesday, challenging the extension of the Safer at Home order by Department of Health Services Secretary-designee Andrea Palm.

“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,” the legislators’ Supreme Court filing declares.

“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,” the filing states. “To be sure, Emergency Order 28 says it terminates on May 26, but nothing suggests that it won’t be extended again.”

Calling Palm “a single bureaucrat,” (whom the Legislature itself has declined to confirm in the 15 months since Gov. Tony Evers nominated her) the legislators argue that her order evades normal administrative rulemaking processes.

“The governor has denied the people a voice through this unprecedented administrative overreach,” Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos said in a statement announcing the court challenge. “Unfortunately, that leaves the Legislature no choice but to ask the Supreme Court to rein in this obvious abuse of power. Wisconsinites deserve certainty, transparency, and a plan to end the constant stream of executive orders that are eroding both the economy and their liberty even as the state is clearly seeing a decline in COVID infections.”

As of April 21, Wisconsin had 4,620 confirmed cases, an increase of 121 from the day before, and 242 deaths from COVID, according to DHS data.

Public health expert warning

Public health experts do not agree with the Legislature’s assessment that now is the time to lift restrictions. Thanks to the Safer at Home order, “the curve is looking a lot more flat than three weeks ago,” says Malia Jones, assistant scientist in Health Geography at the University of Wisconsin-Madison Applied Population Laboratory. “That does not mean that the pandemic is over. There’s another step that has to happen or we’ll be right back where we were.”

The next step, says Jones, involves more testing. “Anyone with a reasonable suspicion of illness or exposure should be able to get a test,” she says. “That’s not all 5.7 million people in the state of Wisconsin, but it’s a lot more than we can test right now.”

It would be a mistake, she adds, to end Safer at Home prematurely. “The next thing after flattening the curve is not everybody go back to work. That’s not economically sound, either.”

The legislators’ Supreme Court filing acknowledges that the DHS secretary has the power under state statute to “promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, [and] for the control and suppression of communicable diseases….” And, under the same statute, DHS may “authorize and implement all emergency measures necessary to control communicable diseases.”

But legislative leaders take issue with Palm’s use of those powers, claiming that the power to issue an “order” is ambiguous, and therefore cannot be used for such a sweeping purpose as the Safer at Home order. Instead, they write, Palm must follow a multistep administrative rulemaking process that involves public hearings, a published explanation and approval by a legislative committee.

No facts needed

“Apparently, instead of having us act quickly and decisively to respond to a crisis, Republicans would rather have us jump through hoop after hoop and ask for their permission to save lives,” Evers tweeted in response to the lawsuit. “Folks, we don’t have time. COVID-19 will not wait.”

In a normal process, cases that involve factual disputes go to a lower court to “sift and winnow” the facts.

In their brief, the legislators assert, “This case focuses on administrative procedure and statutory interpretation. No fact finding is necessary.”

But “we have an emergency situation where the facts are changing constantly,” says a lawyer who reviewed the pleading, speaking on condition of anonymity, “and the Legislature runs to the Supreme Court and tells them there are no facts that are relevant. What could be more oblivious to the humanitarian crisis?”

“This statute has been on the books for more than a century,” says Lester Pines, a Madison attorney who has represented labor unions and other organizations against state Republicans. “So now the attorney general will be defending the law the Legislature passed, because they don’t like how it’s being interpreted.”

Instead of going to the Supreme Court to try to reduce the Evers’ administration’s powers, Pines adds, the Legislature should be passing laws to deal with the COVID-19 pandemic.

“They are supposed to legislate, not litigate.”

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‘This isn’t a game.’

Wisconsin’s Republican legislative leaders also recently appealed to the state Supreme Court to overturn the governor’s order postponing in-person voting in the April 7 election.

But while that case was widely seen as an attempt at voter suppression, which encouraged voters to stay home, this case could affect everyone in the state by propelling people into contact with each other and causing COVID-19 infections to dramatically increase.

“This isn’t a game. This isn’t funny. People die every day because of this virus,” Evers tweeted. “oftentimes painful and lonely deaths — and the more we delay or play political games the more people die.”

“Their lawsuit doesn’t mention saving lives. It doesn’t mention protecting our nurses, doctors, first responders, and critical workers,” Evers wrote in the same thread. “Instead it’s 80 pages of a lawsuit focused entirely on how to get legislative Republicans more power.”

The Legislature’s court filing does mention the economic damage wrought by Safer at Home.

Noting that “by April 16, the estimated unemployment rate in Wisconsin reached 16.71%, a figure nearly twice as high as the peak rate during the Great Recession,” the filing adds, “Business revenues have fallen as sharply as employment numbers.”

“Indeed, total state sales have fallen 15% over the same period last year, with a decline of over 40% for in-store transactions at local businesses that do not have an online presence like Amazon.”

And, the legislators add, “The non-economic harms inflicted by [the Stay-at-Home order] may be even more tragic. The Order has likely increased levels of mental stress, anxiety, and depression, which are often caused by economic hardship, social isolation, and decreased access to community and religious support.”

The court filing also criticizes the administration for staking planned phases of reopening on “indeterminable milestones such as enacting ‘robust testing programs’ for ‘at-risk health workers’ and ‘[d]ecreasing numbers of infected healthcare workers.’”

“Based on this criteria, it is impossible for Wisconsin citizens to know when they can reopen their businesses and return to work and school, nor will they be able to predict what restrictions may still be in place when Secretary-designee Palm announces that the State has made sufficient ‘progress’ to justify moving to one of her phases.”

The Supreme Court should take the case on original jurisdiction, the legislators argue, because “the Order is arbitrary and capricious, and the Legislature will be irreparably harmed absent a stay because DHS’s procedural violations deprived the Legislature of its ability to exercise its constitutionally assigned oversight role.”

State health officials have used emergency powers before

In fact, Palm is not the first state health-department official to use sweeping emergency authority to stop the spread of a communicable disease. In 1918, a top Wisconsin health official invoked emergency powers during the Spanish flu pandemic, which was taking a devastating toll throughout the country.

“Wisconsin was the only state in the nation to meet the crisis with uniform, statewide measures that were unusual both for their aggressiveness and the public’s willingness to comply with them,” history professor Steven Burg writes in WisContext.org, a website devoted to state issues that is a service of PBS Wisconsin and Wisconsin Public Radio and others. “Undoubtedly, those measures helped reduce the loss of life from the disease.”

Part of the reason Wisconsin fared better than other states during the Spanish flu epidemic, Burg writes, was that an 1876 law passed by the Legislature created a State Board of Health with unusually broad powers, “allowing it to impose statewide quarantines unilaterally in times of public health emergencies as well as to issue ‘rules and regulations for the protection of the public health.’”

“Because the full board convened only twice a year, this meant that one person — the state health officer — possessed the authority to issue statewide health orders in times of crisis,” Burg adds.

On Oct. 10, 1918, Dr. Cornelius Harper, the Madison doctor appointed state health officer by Gov. Robert M. La Follette, issued a sweeping order “to immediately close all schools, theaters, moving picture houses, other places of amusement and public gatherings for an indefinite period of time.”

Burg writes that “nowhere except in Wisconsin was such an order issued statewide or in such a comprehensive fashion.”

As a result, Wisconsin fared much better than other states, losing 8,500 people to the flu, compared with tens of thousands elsewhere.

Still, local officials, business owners, and university administrators were reluctant to acknowledge that the flu was a serious problem. In arguments echoed during the debate over COVID-19, many initially resisted the shutdown. But as infection rates worsened, Harper got his way.

“From a modern perspective, it seems unthinkable that a single appointed bureaucrat would possess the independent authority to issue a binding statewide order that shut down all public activities across the state,” Burg writes, sounding almost as if he is commenting on the news today.

But by October of 1918, Wisconsinites had watched as hundreds of thousands of people in big cities on the East Coast sickened and died. They were ready to accept a dramatic response.

A biological invasion

In their Supreme Court filing, state Republicans ask for a stay on the Safer at Home order that would take effect after six days — an interval, they suggest, that should give the Evers administration time to come up with a different plan that goes through a rulemaking process in consultation with the Legislature.

“Let’s say Canada sent gunships to invade. I guarantee you they wouldn’t be telling the Department of Military Affairs, ‘before you act to repel them, you have to come to us with an administrative rule,’” Pines says.

COVID-19 is also a sort of invasion, Pines adds. “This is when you need government to stop something that is deadly.”