Public Health

Wisconsin Supreme Court strikes down state stay-at-home order issued by health official

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The Wisconsin Supreme Court struck down the state’s stay-at-home order Wednesday, ruling that the health official who issued the order should have followed rule-making procedures that involve the legislature in decision-making.

The court ruled 4-3 in a suit by the GOP-controlled legislature, report the Washington Post, Courthouse News Service, the Chicago Tribune and the Milwaukee Journal Sentinel. How Appealing links to the May 13 decision and other coverage.

The state’s Democratic governor, Tony Evers, told the Chicago Tribune that he would work with Republicans to develop new rules, but the “arcane process” could take weeks. By then, the “ship may have sailed” in the effort to curb COVID-19, he said.

The majority, in an opinion by Chief Justice Patience Roggensack, said the stay-at-home order by Health Services Secretary Andrea Palm was unenforceable because she didn’t follow rule-making procedures. Under that process, a state legislative committee has the authority to block Palm’s regulations, according to the Milwaukee Journal Sentinel.

“Rule-making exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin,” Roggensack wrote.

The court also concluded that Palm’s order exceeded her authority under a statute governing the Wisconsin Department of Health Services’ powers to fight communicable diseases. In addition, the court said, Palm’s interpretation of her powers is “constitutionally suspect.”

The court said it was ruling on Palm’s powers, not those of the governor. It did say, however, that the governor’s emergency powers are not limitless.

“In the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely,” Roggensack wrote.

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