After the Wisconsin Supreme Court overturned that state's COVID-19 lockdown yesterday, Gov. Tony Evers, a Democrat, declared that Republicans "have thrown the state into chaos." He was referring to how residents might react now that they are no longer legally required to remain at home and keep their businesses closed. But the justices were concerned about a different sort of anarchy: the kind that happens when governments impose sweeping restrictions on individual freedom, backed by the threat of criminal penalties, without proper legal authority.
The court's decision focuses on a technical issue of statutory interpretation: Was Emergency Order 28, which acting Secretary of Health Services Andrea Palm issued on April 16, an "order," as she maintained, or a "rule," as the Republican leaders of the state legislature argued? If it was a rule, as the court concluded, it was clearly illegal, since Palm admittedly did not follow the statutory requirements for emergency rulemaking.
What might seem like an arcane dispute about administrative law has profound implications for the use of coercion to protect the public from communicable diseases. Can a single executive branch official do whatever she thinks is necessary to deal with an epidemic, or is she constrained by the limits the legislature has imposed on her authority? The answer tells us whether vital principles such as the separation of powers and the rule of law can be suspended or ignored whenever a governor declares a public health emergency.
Emergency Order 28 extended Wisconsin's original March 24 lockdown, which would have expired on April 24, until May 26. The sorts of restrictions this entailed are by now familiar but are worth emphasizing, lest we forget the unprecedented extent to which COVID-19 control measures have interfered with the liberties and livelihoods of people throughout the country.
Palm's order banned "all forms of travel" except those she deemed essential; required "all for-profit and non-profit businesses" she did not consider "essential" to "cease all activities" except for "minimum basic operations" and work done at home; prohibited "all public and private gatherings of any number" involving people who were "not part of a single household"; closed all places of "public amusement and activity," whether "indoors or outdoors," except for golf courses; continued the closure of bars and restaurants (except for takeout and delivery) as well as salons, spas, K–12 schools, and libraries; imposed a 10-person limit on religious gatherings, including weddings and funerals; and required all residents of the state, except for members of the same household, to maintain a distance of at least six feet from each other. Palm said violations were punishable by a $250 fine, up to 30 days in jail, or both.
The question before the Wisconsin Supreme Court was not whether these sweeping restrictions were sensible, proportionate, or necessary. It was whether Palm had the legal authority to impose them.
Palm, a former Obama administration official who was appointed by Evers to head the Department of Health Services in January 2019 but has not yet been confirmed by the state Senate, argued that her order was authorized by the statute that describes her department's powers. That law says the health department "may authorize and implement all emergency measures necessary to control communicable diseases."
More specifically, the department "may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics." The law also authorizes the department to "promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, [and] for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease."
Another statute explains what the health department is supposed to do when it issues one of those rules. An "emergency rule," deemed necessary for "preservation of the public peace, health, safety, or welfare," is not subject to the usual "notice, hearing, and publication requirements." But the agency issuing it still has to follow certain procedures, including publication of a statement describing the scope of the rule in the Wisconsin Administrative Register, "a preliminary public hearing and comment period" if a co-chairman of the Joint Committee for Review of Administrative Rules asks for them, approval of the proposed rule by the governor, and a "fiscal estimate for the rule" sent to every state legislator.
Because Palm did not follow those procedures, the legislators who brought this lawsuit argued, her lockdown order was illegal. Palm contended that her order did not qualify as a "rule." A four-justice majority of the Wisconsin Supreme Court disagreed, noting that state law defines a "rule" as "a regulation, standard, statement of policy, or general order of general application that has the force of law and that is issued by an agency to implement, interpret, or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency."
Even while insisting that her order should not be viewed as a rule, Chief Justice Patience Roggensack notes in the majority opinion, Palm purported to impose criminal penalties for violating it. "It has long been the law in Wisconsin that in order for the violation of an administrative agency's directive to constitute a crime, the directive must have been properly promulgated as a rule," Roggensack says.
Furthermore, Palm's order defined the crime she purported to punish without referring to any statute. "The prohibited 'criminal conduct' to which Palm refers is factually defined solely by Emergency Order 28," Roggensack notes. "Counsel for Palm admitted as much at oral argument when he said that there was only one element that needed to be proved in a criminal prosecution for a violation of Emergency Order 28: that a provision of the order was violated. Such an argument is without legal foundation and ignores more than 50 years of Wisconsin law."
Roggensack emphasizes that the rules for making rules are not merely picayune requirements that can be ignored when an agency head thinks they unreasonably impede her ability to respond to an emergency. "Rulemaking exists precisely to ensure that kind of controlling, subjective judgment asserted by one unelected official, Palm, is not imposed in Wisconsin," she writes. "Rulemaking provides the ascertainable standards that hinder arbitrary or oppressive conduct by an agency."
Even if Palm's order were not subject to rulemaking requirements, the majority says, it would exceed the scope of her legal powers. While the health department has the authority to "quarantine those infected or suspected of being infected," for example, the lockdown goes much further than that, telling "all individuals present within the State of Wisconsin" they must "stay at home or at their place of residence" except for Palm-approved purposes. "She also prohibits 'all public and private gatherings of any number of people that are not part of a single household or living unit,'" Roggensack notes. "Again, this directive is not based on persons infected or suspected of being infected."
Other language in the statute—e.g., authorizing "all emergency measures necessary to control communicable diseases"—could be read to authorize Palm's order. But it also could be read to authorize pretty much anything, which is a problem, as Justice Daniel Kelly suggests in a concurring opinion joined by Justice Rebecca Bradley.
"Under our constitutional form of government, the Legislature cannot possibly have given the Secretary the authority she believes she has," Kelly writes. "In the Secretary's view, the Legislature gave her plenary power to simply 'act' without the need of any further statutory or regulatory policy. Her brief candidly asserts there are no statutory or regulatory limitations on her authority to address communicable diseases….If we agreed with the Secretary's reading of [the law], we would have to conclude the statute violated the separation of powers by conferring on the Secretary the power to make laws without going through the rule-making process."
In a concurring opinion joined by Kelly, Bradley highlights the issues at stake in this case. "However well-intentioned, the secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance," Bradley writes. "In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether."
For those who think the separation of powers is a luxury we cannot afford during emergencies, Bradley quotes from Ex parte Milligan, the 1866 case in which the U.S. Supreme Court held that civilians could not be tried by military tribunals during the Civil War:
Those great and good men [the Framers] foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority.
"It is especially in times of emergency that we must protect the rights of the people," Bradley writes, "lest we establish a dangerous precedent empowering less benevolent government officials in the future to oppress the people in the name of exigency."