"Wisconsin Supreme Court Strikes Down Stay at Home Order" as Violating State Rulemaking Procedures


Read the Wisconsin State Journal (Riley Vetterkind) article, or the 4-3 decision in Wisconsin Legislature v. Palm (161 pages!). The opening paragraphs of the majority opinion:

This case is about the assertion of power by one unelected official, Andrea Palm, and her order to all people within Wisconsin to remain in their homes, not to travel and to close all businesses that she declares are not "essential" in Emergency Order 28. Palm says that failure to obey Order 28 subjects the transgressor to imprisonment for 30 days, a $250 fine or both. This case is not about Governor Tony Evers' Emergency Order or the powers of the Governor.

We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13), which defines "Rule." Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable.

Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow, as we explain fully below. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.

We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the law that is applicable to state-wide emergencies. We further conclude that Palm's order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.

And from Justice Dallet's dissent:

Today, a majority of this court does the Legislature's bidding by striking the entirety of Emergency Order 28, "Safer at Home Order" …. The majority reaches its conclusion by torturing the plain language of Wis. Stat. § 252.02 and completely disregarding the longstanding, broad statutory powers the Legislature itself granted to the Department of Health Services (DHS) to control COVID-19, a novel contagion. This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court's history. And it will be Wisconsinites who pay the price….

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  1. You know I’ve been involved in a lot of Health Care Projects and inevitably some “Doctor” slams their fist on a table and says something to the effect “If you don’t do what I say somebody is going to die.” generally followed by storming out of the room.

    There seems to be a lot of that going on in various places.

    1. One wonders if any of Trump’s advisors did exactly that in late-Jan or February. But in that case, it’s not ‘someone’s gonna die,’ it’s, “140,000 people are gonna die!”

      So, your example may not prove what you want it to prove.

      1. How many people do you think are going to die from deferred medical care for other stuff? I can’t get an appointment before June at the earliest, and I’m hoping it is only late June for something that I should have dealt with in March…

        I’m not the only one…

        1. I’m not the only one…

          You can wait another month for your liposuction procedure if it means saving lives.

          1. You can wait another month for your liposuction procedure if it means saving lives.

            I have a friend who was told that she can’t get her annual MRI, which was due this June and which is taken to verify that her breast cancer hasn’t returned, until October. What about her life?

            1. He won’t answer that one Seamus. He just wanted to smugly express his superiority because his politically distorted opinion is the only one possible.

              Once you pointed out that there is real serious stuff at stake he can no longer discuss it because his smugness is ripped away.

        2. Oh, the unintended consequences will extend far beyond just that. We unleashed a hydra and good luck reigning it in without some serious fight. We tapped into people’s most primal emotion: Fear. As if we can just reason it back to normal.

          This pandemic showed me low IQ people run the show.

          And that elected leaders should listen to medical bureaucrats but not allow them to dictate policy. That’s the job of the, you know, POLITICIAN to make and take the hard decisions.

          1. Rufus, I keep saying it resembles what happened in Danvers (not Salem) back in 1692. They feared witches, we fear viri — equally irrational…

            1. Wow. First Korematsu and now trying to compare this to witch hunts? I can’t decide if you would get an A or an F in a comparative history seminar. On the one hand its certainly creative, on the other its completely at odds with history, science, and logic.

              We know viruses exist. We can see them using electron microscopes. We know their structure. In this case we know the type of virus because of its structure. We know how they replicate. We generally know how they are spread. We know how they affect the body. We know what symptoms they cause. We know the possible and probable outcomes of contraction. We know we need to use the scientific method to identify effective treatments. We know what steps to take to stop the spread of viruses. We know vaccines work against viruses generally. We know that if we found an effective vaccine we would be able to set on a path of eradication. We know the history of public health. We know about situations that got bad because the public health authorities did not understand disease transmission. We know that although scientific and medical experts are not always right the probability of them being correct is higher than someone without the training and expertise.

              By contrast, we know witches don’t actually exist. We know that religious fervor, sexism, a lack of scientific understanding, and coerced confessions leads to persecution of people considered witches.

              These things are not remotely comparable.

              1. Amen to that.

                The idea that medical professionals are making a play at tyranny is just (let me look in the dictionary — oh here it is) nuts.

                1. I don’t want to say a play in tyranny, but they are experimenting on the populace and economy using untried and untested remedies.

                  I hope you won’t say it’s irrational to insist on the same level of repeatable testing and results to shut down the economy for 2 or 3 months at a time as they are insisting on for prescribing hydroxychloroquinine.

                  From the published results I think I think I prefer the Swedish or South Korea model over the New York or UK model.

                  1. Yes, why isn’t there an FDA but for economic policy?


                    1. I’m not talking about economic policy, that’s a slam dunk for reopening.

                      I want to see some proof the public health measures they are prescribing will benefit the public health. The evidence from Sweden, South Korea and now Georgia disputes that. It’s not definitive, but neither are the assertions that a shutdown is effective.

                      The data out of Massachusetts shows the average age of covid-19 fatalities is 88, shutting down nursing homes may turn out to be the most effective remediation effort, but restaurant and bar shutdowns are meaningless.

                    2. Kaz, I think you’re discounting the economic effect of a wave of deaths. Dunno if that would be the case, but it’s certainly not a slam dunk.

                      Sweden’s case isn’t in, but it could be that their way forward was correct. I would note that there level of social distancing is about what a lot of US States’ has been, however.

                      Your standard of proof is too high. We’re working with incomplete data, both biologically and economically.
                      And then you just say stuff. Age cohorts right now don’t really prove anything about age cohorts going forwards.

                      Not that experts are always right, but they have more of a chance of being right than you do. Plus, of course, their analysis is run through policymakers that are elected.

                    3. “Not that experts are always right, but they have more of a chance of being right than you do. Plus, of course, their analysis is run through policymakers that are elected.”

                      Indeed. Our Health Boardjust unanimously voted in favor of opening up a bit.

              2. Let me get this straight. He says both the fear of witches and fear of this virus is irrational, but he’s wrong because we understand somethings about the viruses generally, but not witches? Err, no.

                We can both understand concepts of virology, and some aspects of this virus (and witches), and still have irrational fear of it.

                Instead of dodging the question with these weird appeals to authority, maybe just address why the fear is rational.

                1. It’s rational because our understanding of viruses and the history of public health are based on rational examination of them. Witches by contrast have nothing to do with rationality. It’s a completely ludicrous historical comparison.

                  1. 328 years ago, they didn’t have electricity let alone electron microscopes — even a century later, bloodletting to remove bad “humours” was considered state-of-the-art medical practice.

                    My point is that while we know more “stuff”, human nature hasn’t changed and we’re being every bit as irrational as the folk in Salem Village (Danvers) were back in 1692. Our current fixation with masks is no more rational than wearing cloves of garlic to ward off vampires — although in both cases, there is no insignificant placebo effect.

                    Reality is that we do not know what percentage of the population is currently infected, nor what percentage has been, nor the extent to which there is post-infection immunity, if any. We don’t even know how many people have died from this, and it’s not just that our numbers are wildly inflated (and they are) but because there often are multiple causes of death. The flu is still out there, and it’s killing people too…

                    We don’t even know what the infective dose is yet — we don’t even know *that* and hence making decisions solely based on our purported understanding of this virus are really no more rational than those who did so on the basis of Spectral evidence.

                    And science doesn’t have an inherent track record of being right, either. Remember DDT? Thalidomide? Asbestos? Lead-based paints? Or whatever we are being told this week about what we should or shouldn’t be eating — as opposed to what we were told last week…

                    We are paying a very high price — medically and otherwise. For every 1% increase in the unemployment rate, there is something like a 1% increase in the suicide rate and a 3% increase in opioid addictions. Our economy is in the toilet and without a strong economy, we can’t fund all the medical miracles that we have come to expect.

                    There is a lot of deferred medical care for other stuff and it isn’t just liposuction. (In my case, followup on multiple fractures and internal injuries.) There’s going to be increased mortality and morbidity from this — the cardiac folk are openly stating such. And a rational decision-making process has to include these costs as well.

                    So yes, I think it is quite fair to compare the hysteria of today to that of 17th Century Danvers — not that we are in the same place technologically, but psychologically we very much are….

                  2. The fact that viruses exist does not make all fears about them suddenly rational. Consider: We all agree that the moon exists. We even know lots of things about it. If I said that it was filled with green cheese, that would be irrational even though we still know lots of things about it.

                    Consider another example. Cars kill far more people per year than nuclear power plants. Per mile, planes are about the safest means of travel that exists. Despite all the facts, people hold irrational fears. (They also hold some rational fears. Those are out of scope of the discussion.) The irrational fears of nuclear power and air travel are as irrational as the old fears of witches.

                    1. And how do you explain a Charles Manson or Jeffery Dahmer?

                      We use concepts of mental health while an earlier age may have thought in terms of witchcraft and demonic possession. I’m not convinced that our explanation is any better…

                2. No, he said the fears were “equally irrational”.

              3. LTG,

                It’s Dr. Ed you’re talking to.

                1. And Dr. Bernard responding with nonsense and ad hominem.

                  Can you ever actually answer the message itself instead of insulting the messenger?

                  And in case you are curious, yes I am attacking your message. Try a real rebuttal once and see how I respond.

          2. Pet peeve alert:
            – You reign as a king.
            – You rein in a horse.
            – And, of course, the rain in Spain fails mainly on the plain.

      2. Actually the point is a lot of Doctors and some lawyers are just making up stuff based purely on their own sense of infallibility and righteousness.

  2. The rule of law is important, most especially for non-elected officials making rules that others must follow. If the individual making the rule didn’t follow the requirements in the law to make the rule, then that rule is invalid and unenforceable. It is so at local, state, and federal levels.

    The dissent seems odd though. WDHS may have been given broad powers, but I have sincere doubts about the jail/fine portion of those powers during an emergency.

    1. Why is it the Republicans fault that the Democrats couldn’t bother to follow the rules? Imagine the outcry if it were the other way around….

      1. You mean like all the times Republicans don’t follow rules?

        1. Two wrongs make a right?

          1. No. Just that the “imagine if things were the other way around” happens all the time.

        2. Name one time — just one — when the Republicans screwed the public this badly. NB: Not when some leftist judge gave the left an injunction but when the Republicans did something like this.

          1. First of all I like how you frame your question as “give me an example except for the ones I say don’t count.”

            I’ll just gloss over all the Republican led states that have similar stay-at-home orders like in Ohio.

            And since your “screw the public” standard is impossible one to meet because you will state that nothing is as bad a s the current situation, I will just be content with listing the following illegal actions taken under Republican direction:

            Iran Contra.
            Warrant-less NSA surveillance of Americans after 9/11.
            Operating a torture program.
            Putting the entire healthcare system at risk using incredibly bad legal logic which ignores the rules of both standing and severability.

            I could keep going with other examples of terrible decision making that had widespread negative effects: Iraq War, Hurricane Katrina, Hurricane Maria, etc. But I’m tired and I assume I’ll need to grab some books off the shelf to dispute your next off-the-wall historical comparison.

            1. You don’t honestly consider Charlie Baker to be a Republican, do you?

              And as to Katrina & Maria, it was the local politicians who screwed stuff up. They’re *still* finding warehouses full of stuff in Puerto Rico.

      2. Democrats view rules as optional. They are for the opposition to follow. All that libs care about is raw power.

        1. Actually they care about the dignity and health of other humans. But sure, lets go with raw power. I mean Mitch McConnell clearly is uninterested in exercising power. Same with the Republicans in the North Carolina and Wisconsin legislatures. Nope. Not interested in raw power at all.

          Besides, between liberal me and conservative you, I think only one of us has expressed interested in pressing the thumb down on people who disagree with you. Isn’t that an exercise in raw power?

          1. How many dictators have begun with calls to be in the interest of the people.

            The naivety is stunning.

            1. All politicians do that. So doesn’t that mean that all politicians are potential dictators?

          2. Democrats do NOT care about the dignity and health of the people they purport to assist. Minimum wage laws put poor people out of work, not rich people. Rent control makes cheap rentals less cheap and less available. Government bureaucracy lathered on top of expensive health care just makes it more expensive and less available. Occupational licensing, land zoning, outlawing gig work, all screw over poor people.

            Any more fairy tales?

            1. I’m a democrat and I care.

    2. I’m not sure I follow your point about the dissent, or the significance of the existence of a criminal penalty.

    3. The dissent is barely comprehensible.

      If you can wade through 10+ pages of backwards logic disguised as statutory interpretation, you will probably get to the underlying reasoning: Order 28 is not subject to formal rulemaking, and in turn not subject to the legislative confirmation of emergency regulations, which obviously didn’t occur, because it is not a “general order” of “general applicability.”

      According to the dissent, this is because the facts of COVID-19 are unique or otherwise “non-general,” and Order 28 obviously addresses its self only to the COVID-19 situation. This is, of course, nonsense. First, ALL general orders or regulations of “general applicability” address themselves to a specific set of factual circumstances, many of which aren’t permanent, e.g. regulations governing a sports or entertainment event, land development, or countless other one-time phenomenon. If such were the law, there would be no need for regulations at all, as regulators could just make one “special order” after another as circumstances required, so long as driven by an “intelligible principle.”

      Second, “general applicability” doesn’t mean “relevant forever and ever,” which would turn sunset clauses into rulemaking loopholes. It means, to anyone who understands the English language and the purpose of Administrative Procedure Act-style rulemaking laws, applying to all persons or businesses at all times, which Order 28 clearly does.

      The dissent also takes issue with the Legislature’s standing to challenge the Order on ultra vires grounds, but we’ll leave that for another day.

  3. Just as unhinged as the decision requiring Democrats to show up in person to vote in their primary. Comments comparing the order to Japanese American internment gave the game away.

    1. FYI: There wasn’t so much as a blip in the infection rate after the primary.

      1. Too early to tell.

        1. It’s been 5 weeks, the incubation period is a couple of weeks. So, like heck it’s too early to tell.

          1. Well we only have confirmed cases. Without widespread testing we don’t know the extent of the spread. Cases with limited symptoms that weren’t tested and confirmed are likely unaccounted for and without widespread contact tracing it is going to be difficult to tell how cases spread from the election.

            1. I’m sorry, but “there might have been people that got the disease and had such mild cases they didn’t even know it” is not exactly the justification that strikes fear into the soul.

              1. But we also don’t know who they spread it to who might end up having serious cases. We also aren’t sure yet what the long term effects of this disease are on people who ultimately recover.

                1. We also don’t know who’s going to die in a wreck caused by bald tires that the unemployed guy didn’t have the money to replace.

                2. Man, you really do live your life in fear.

                  I wonder what would happen if you ever went and looked up the yearly death rate and figured out the statistical level of harm we are actually talking about here.

                  Then again, based on your fear, I have a strong feeling you don’t actually understand statistics.

                  1. Now cluck like a chicken. Pull out all the high-school tactics to really make a substantive argument about acceptable death rates.

                    1. Sometimes one has to make tough decisions.

                      For example — and I am paraphrasing a real situation here — if you have a fire in a nursing home (where there are lots of oxygen tanks making the situation a lot worse) do you shut the door of the room where the fire is (and kill the 2 people in the room) or *not* and kill both them AND the 200 people in other rooms on the floor? What do you do???

                      One of the often-not-mentioned aspects of hurricane evacuation is the known MVA death ratio per 100,000 persons evacuated. So evacuating people “accepts” that death toll, and the people making that decision know that. And have to live with it.

                      Welcome to the real world….

                  2. I’ve faced a life or death situation due to a car accident before and was in the hospital for three weeks, including on a ventilator. While I don’t care to go back, the experience reduced fear of illness, hospitals, and life hanging in the balance somewhat.

                    To the extent I have fear, its based on my concern for the well being of other people rather than myself. In particular my parents who are in their sixties and have some underlying conditions and my boss who is the same. Statistically it is unlikely I spread it, but I don’t want to gamble with people’s lives when it doesn’t cost me much not to do so.

                    If caring about other people in these extraordinary times makes me a coward, so be it. There are worse things in life to be, and being someone who doesn’t care about other people is one of them.

                    1. “I don’t want to gamble with people’s lives when it doesn’t cost me much not to do so.”
                      It’s not always all about you. Many people are suffering from lack of employment, loss of businesses, and so forth.
                      There is a huge human cost associated with this lockdown, that must be put in balance when evaluating the potential loss due to the disease.

                    2. Right, but that doesn’t have anything to do with my particular fears. Those don’t dissipate by an end of the lockdown. Nor would it super change my economic behavior. In fact I’m probably spending more money on take out and tips and gas (no more public transport) than I was previously. Unless I’m morally obligated to spend all my money at an even wider variety of businesses?

                    3. And Black Men shouldn’t complain about racial profiling????

              2. It is actually likely a good thing for establishing herd immunity.

            2. And none of that really changed in the last 5 weeks, except to increase testing, so if there’d been a significant uptick in infections due to the conduct of the election, we’d have seen it.

              And it would be all over the headlines, because plenty of people had “Voters murdered by Supreme court election ruling!” headlines already written.

        2. Too early to tell.

          At 5 weeks and counting, that line is wearing a little thin.

          1. Subjecting people to known hazards = stupid and irresponsible. If you force people to smoke cigarettes I don’t need to be shown that they got cancer at a higher rate.

            1. So not too early to tell at all — numbers or not, you know it’s really true. Sounds about right.

              1. Go ahead — I’m forcing you to smoke this carton of cigarettes. What? Hesitating are you?

                1. I’m sure you think you’re making a very clever point. Keep pounding that table.

                  1. He isn’t making a clever point. He is making an obvious point. And you are denying it.

                    The burden of proof is on those of us who think that requiring people to gather in large groups is a bad idea?


                    1. Except his analogy is idiotic and wrong.

                      Who is requiring people to do anything here except those requiring people to stay home.

                      Again, you have the use of force on the wrong actor. Most likely because you are biased. And ignorant.

                      Even sans lockdown orders, nobody is forcing other people to go into crowded areas. Full stop. They are free to live irrationally in their own homes.

                2. Driving would be a far more apt analogy since people who choose to drive are enhancing their risk of death by being on the roads from both their own driving and the driving of others.

                  But hey, you go with the idiotic analogy.

                  1. Yeah, people valuate driving deaths different from deaths from disease.

                    Deaths from disease are actually valued a lot more like smoking, though not identically. Though in this case, due to assumption of the risk, one could argue smoking is actually more analogous.

                    There are papers on this; sociology from your rage-filled gut isn’t going to cut it.

                    1. Yeah, people valuate driving deaths different from deaths from disease.

                      Though it’s far from clear, from the context I suspect you’re saying people arbitrarily put a lower value on driving deaths (which, need it be stated, are all eminently preventable through obvious means). I’m not sure why you think that’s something to be smug about.

                  2. As we live in a republic, recognizing the feelings of the people would seem pretty relevant when one is ranting about what’s good policy and what’s tyranny.

                    We don’t treat all deaths equally. If you’re going to suddenly argue that not doing so is bad policy, you have a helluva lift ahead of you.

                    1. We don’t treat all deaths equally.

                      Then the pious pontificating that not a single death from this particular cause can be tolerated needs to stop. You can’t have it both ways.

                    2. Uh, we’ve tolerated a crapload of deaths.

                      Turns out that Covid deaths in particular ring a number of sociological bells that pandemics in the past haven’t been able to: A worldwide effort with a worldwide media, and an understanding of the assumption of the risk that wasn’t in place for previous pandemics.

                      And, of course, the fact that the other side isn’t making opposing policy arguments, just partisan table pounding.

            2. If we’re likening the connection between smoking and cancer to the connection between in-person voting and Covid-19 infection, I have to confess that I must have missed the decades of testing that confirmed the latter.

            3. Hey captain, I’m not sure why your parents failed to teach you as a kid… but life is a series of known hazards that you are constantly exposed to. Sorry, that’s living.

            4. “Subjecting people to known hazards = stupid and irresponsible.”

              Well I hope you never drive a car, then.

      2. So it’s just fine that people stood in line for hours and hours to vote?

        Or are you now of the “Covid-19 is a myth” school that RWNJ’s are pushing?

    2. One of the local papers had a video clip of the justice asking the question, and she’s more rational than it sounds.

  4. Those Korematsu citations are incredibly inapt. Despite the citations to the case and articles about the case, Justice Bradley doesn’t appear to understand what the case was about.

    Korematsu involved an equal protection challenge to a race-based program of imprisonment based on racial stereotypes and dubious intelligence. It also included a misrepresentation of the intelligence to the Court.

    Even considering the case as one with constitutional dimensions and not the administrative procedural question that was actually before the Court, the comparison would be a bad one. The Health Department’s order is based on scientific consensus and applies to everyone equally. No one is being singled out for discrimination. No justification is based on racial stereotypes. No one is being sent to camps. No one is misrepresenting intelligence to the Court. There is no situational irony of a government interning its own citizens based on race while fighting Nazi Germany.

    This terrible comparison shows that Justice Bradley is not a serious jurist or person. That’s also demonstrated by her gratuitous attacks on Justice Hagedorn. I feel sorry for the lawyers who have to practice in front of her. At least she didn’t casually compare face masks to yellow stars. Yet.

    1. So it’s OK to violate *everyone’s* civil rights, as long as you don’t just violate the rights of protected groups?!?

      That’s not what the Constitution was about — I assure you of that.

      And your approach leads to large segments of the populace concluding (correctly, if you prevail) that the “rules” don’t protect us, which very quickly leads to a very dark side of populism that you don’t want to think about.

      But, seriously, you’d consider _Korematsu_ OK if they had done it to a racially diverse group? Are you really serious?!?

      1. No. Because, I have a better grasp on both history and law than either you or Justice Bradley, I understand that the public health orders that are present not just in Wisconsin but many other states are not at all similar to the forced transportation and internment of people in prison camps for several years.

        1. It hasn’t been several years, yet….

          1. It won’t be. And at any rate it won’t be several years in a barbed wire prison camp.

        2. Why do bad lawyers always make this bald assertion about their grasp on law and history. There is a reason most lawyers end up out of the profession. You seem to over value your own esteem.

          1. Having a better grasp on law and history than Dr. Ed is a low bar.

          2. It’s not always an overvaluation to point out that I likely know more about subjects than other people.

            Sorry to disappoint you, but the people I work with think I’m good at law. And all my history professors thought I was good at history. My grades generally reflected that as well. The good lawyers and judges I know wouldn’t make such a bad comparison and neither would the historians I know. I also am not as good at history as historians. Judges and lawyers typically aren’t either. One of the reasons I am better at history than most people is that I actually understand this fact. Historical research and analysis is complex and nuanced and doesn’t typically fit well into the judicial function so it’s best avoided. People who are good at history recognize this. That’s why historians are skeptical of the claims made by originalists.

            1. My dad used to point out that the reason why the Nazis never got the atomic bomb (and they started way ahead of us) was that one of their “experts” made a simple arithmetic mistake in calculating the atomic weight of heavy water, and no one ever checked his work.

              1. The conventional wisdom version is that they didn’t get the bomb because:
                1)They couldn’t begin to allocate resources on the scale of the Manhattan Project … not even close
                2)They had chased a number of very bright physicists out of Europe into … Los Alamos
                3)There are theories that Heisenberg didn’t like the notion of Hitler with the bomb, and maybe didn’t work as hard as he might have

            2. Sorry to disappoint you, but the people I work with think I’m good at law.

              With apologies to Maggie Thatcher, if you have to tell people you’re a good lawyer….

              1. Well if someone says I’m not, I should be able to defend myself, right? Particularly since we are in a non-professional setting.

      2. “So it’s OK to violate *everyone’s* civil rights, as long as you don’t just violate the rights of protected groups?!?”

        Actually, that IS kind of how standing works; You know, the need for a particularized injury, so if a violation hurts everybody, well, you’re out of luck in challenging it.

        1. The reference to Korematsu had nothing to do with standing.

        2. Only in the tortured creation that is federal standing law.

        3. So as long as the removes rights across the board, there is no cause to object?

          That is not how any of this is supposed to work.

    2. You’ve entirely missed the point to make some personal attack on a jurist you clearly don’t like for other reasons. I don’t follow WI politics, but presumably this has something to do with recent political events there.

      Did you even read the concurrence?

      “Although headlines may sensationalize the invocation of cases such as Korematsu, the point of citing them is not to draw comparisons between the circumstances of people horrifically interned by their government during a war and those of people subjected to isolation orders during a pandemic. We mention cases like Korematsu in order to test the limits of government authority, to remind the state that urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens.” Op. at 49-50.

      He goes on to make the point crystal clear: “These cases, among other similarly despicable examples, illustrate rather painfully why the judiciary cannot dispense with constitutional principles, even in response to a dire emergency.” He is not arguing the merits, but making a larger point.

      Had you bothered to read the op, you would know that the “constitutional principles” he believes are at issue aren’t equal protection or whatever else was at issue in Korematsu, contrary to your strawman description, but the “fundamental importance of judicial resistance to popular pressures, which in times of crisis implore judges to cast aside the law in the name of emergency.”

      Shame on you for dressing up a weak hit job as actual analysis.

      1. She. It’s Justice Rebecca Bradley.

        And I’m sorry but the shame is on you for accepting her papering over an ahistorical and legally erroneous comparison. There was no reason to cite it. The case was an admin law case about statutory authority. It’s an ahistorical comparison meant to rile people’s emotions up. It has no place in the analysis. She’s being deliberately provocative without sound legal or historical basis. You can’t makes comparison and then say: actually I’m not making a comparison. Again shame on you for accepting that. Be better at history and be better at law.

        1. I’m sorry, was there an actual response in there somewhere?

          “Here are the stated reasons she cited it…”

          Your response: “There was no reason to cite it.” Also, she explicitly disclaims the comparison, but you write: “You can’t makes comparison and then say: actually I’m not making a comparison.” Huh?

          This is like arguing with an empty well.

          1. Explicitly disclaiming a comparison is rhetorical trick to pretend you’re not doing what you’re really doing. It’s the rhetorical equivalent of making an bombshell accusation and then saying “I’m just asking questions.”

            Or to be more analogous, if I said “There’s a long history of using faulty legal reasoning to achieve dubious objectives. In Scott v Sanford, Chief Justice Taney used a strained reading of the Founders’ intent to rule that black Americans could not be citizens. Now the purpose of this citation is not to say that Rebecca Bradley is as bad as Chief Justice Taney. But to remind people that there are bad judges out there” You would obviously know that I’m comparing her to Taney and that’s the association I want you to have in your mind, even though I disclaimed it.

            Furthermore her reasons for citing it as Justice Hagedorn thoroughly explained were not legally relevant. Just because she has them doesn’t make them appropriate. Again I could say why I’m comparing Justice Bradley’s concurrence to Dred Scott but that doesn’t make it appropriate as a matter of legal analysis or as a matter of propriety.

            1. I suspect few others are so offended by the reference to a grave abuse of government’s emergency powers in a case finding a grave abuse of government’s emergency powers, but I don’t want to dismiss your feelings.

              Indeed, I hope Justice Bradley is prompt in sending her apology to you for his transgressions of LawTalkingGuy’s Super Serious Inviolate Rules For Rhetorical Reference-Making In Non-Precedential, Unjoined Judicial Concurrences.

                1. Do you have a cite for the Justices’ preference for pronouns?

              1. Maybe she should ask the surviving Japanese who were in internment camps how they feel about the comparison. Not all government abuses are the same. Making bad legal and historical comparisons under the broad umbrella of “government abuse” reflects poorly on her abilities as a Justice and lawyer.

                I take history and law seriously. It’s a shame you and the Justice don’t.

  5. This should be an interesting ruling to read in its entirety. As a Wisconsin resident I have to say I don’t recognize the majority’s characterization of Order 28’s provisions. Encouraged to remain at home is hardly confinement.

    “15. Essential Travel. Individuals are strongly encouraged to remain at their primary residence or home. Travel to second homes or residences should be avoided if possible. Consistent with federal guidance and to protect our neighboring states, Wisconsinites are encouraged to stay close to home and strongly discouraged from engaging in unnecessary travel. Individuals engaged in any Essential Travel must comply with Social Distancing Requirements to the extent possible.”

    1. Wasn’t it primarily around orders enforceable by arrests/fines?

      1. My reading is that the main argument is that Palm exceeded her authority. “Palm exceeded her authority by ordering everyone to stay home,2closing all “non-essential” businesses,3prohibiting private gatherings of any number of people who are not part of a singlehousehold,4and forbidding all “non-essential” travel.5″

        Encouraging people to stay home is not “ordering everyone to stay home.” Strongly discouraging non-essential travel is not “forbidding.” While it is true that the first part of the order “forbids” it is subject to definitions later in the order that do not forbid individual movement but are simply emphatic suggestions.

        Chapter 252.02 (3) provides that “The department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics.” Does a gathering of two private households constitute a public gathering? Is a business a place? As far as I can determine the majority never engages these questions. Rather, the position is that this is overreach as it is “not based on persons infected or suspected of being infected.” Yet isolation and quarantine are addressed separately in 252.06.

        However, I’m not a lawyer and no doubt there are finer points of law and administrative regulation that I am missing in my reading.

    2. Not sure why you skipped to section 15. Section 1 seems crystal-clear to me:

      1. Stay at home or place of residence. All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below.

      1. Because there are indeed exceptions outlined below and one of them, section 15, strongly discourages but does not in fact ban unnecessary travel. If you are a Wisconsin resident, you know full well that we have not been confined to our homes.

        1. If you are a Wisconsin resident, you know full well that we have not been confined to our homes.

          Right — if you’re part of the in crowd, you know that “red” really means “green” and “ordered to stay at home” under threat of fine and imprisonment really means “do what you can — whatevs.”

          The rest of us (including your own Supreme Court, imagine) read the actual words.

          1. I think there are legitimate questions with how the essential vs. non-essential categorization of business differentiated against many small businesses, especially independent retail, compared to big box retail. This is the kind of disparate treatment that might be excused in the haste of emergency but can’t be justified indefinitely. It would have been useful for the Court to engage that question and whether rule-making should have been applied. Faux concerns about confinement of residents with histrionic invocations of Korematsu seem like cheap and lazy jurisprudence.

            If I’m part of an “in crowd” then judging by who I see outdoors getting their exercise or making home and garden purchases at the hardware store or garden center, we’re a majority. Don’t get me wrong, I don’t like the modest individual restrictions and hate the economic repercussions. And personally it would be nice to dine out. However, since this is a public health challenge that is going to be with us for a while it would be more productive to tackle legal disagreements with seriousness instead of bad faith arguments.

  6. Let’s see. Looks up Wisconsin’s numbers.

    As of today, 10 902 cases and 421 deaths or 72 deaths per million.

    Hm. Huh. Ha.

    Totes a justified and reasonable demand made by the Governor. Here in Canada, Winnipeg have a couple of hundred cases and are all like, ‘How come we’re in shut down’ for Quebec where there are 40 000 cases?’ When Winnipeggers start to question things, you know you’re losing the plot.

    People do realize the virus is out there right? So even if you hunker down the virus is still swirling around looking for hosts asking, ‘where’s Waldo?’ It’s not going away until it finds it. It really doesn’t take a genius to grasp that no shit the numbers will spike if we reopen. We’ve been COWERING in our homes watching bull shit ‘thank an essential worker’ commercials and lame #CanadaTogether shows. Now Greta is about to enlighten us all on immunology. ‘How dare you corona?!”

    I swear, if the Golden Horde were to resurrect and they were here they’d wonder what in the hell happened to humans we’ve become so weak mentally.

    We’re better off just taking the hit up front and moving from that point now.

    What we did was a colossal error. We relied on faulty models (gee, where have we seen this before?) and then failed to adjust our thinking to new and more reliabel data. We isolated the healthy and shut down an economy while unleashing unintended consequences we may likely still be dealing with for a few years to come.

    Get out there. Learn to live with it. It’s not as lethal as we thought. Yes, there’s no vaccine but it’s irrational to even remotely assert we should remain closed until there’s one. If you have a leader that thinks this way a) good luck b) call them in or c) be prepared for some civil disorder because we’ve never shut down people’s lives and prevented them from earning a living, like, ever in Western history.

    And we make fun of the Middle-Ages? Shit, we’re right in the middle of our own Dark Age.

    Not pretty huh.

    1. “Get out there. Learn to live with it. It’s not as lethal as we thought. Yes, there’s no vaccine but it’s irrational to even remotely assert we should remain closed until there’s one.”

      I’ve yet to hear any politician suggest that “we should remain closed” until there’s a virus. But it’s plenty lethal. 80,000 deaths to date in the US (which is almost certainly an undercount) and a high likelihood of a second wave in the fall. And an infection fatality rate of somewhere around 1%.

      It’s not the flu. It’s sure not the common cold. And if you think that people are just going to go back to work and to shopping and dining out and traveling as if it doesn’t exist, regardless of whether shutdown orders are in place or not, then you’re smoking something stronger than what’s legal.

      1. Um. Pritzer in Illinois said so publicly. A couple of others have also made noises about that. Trudeau basically believes ‘no normalcy’ until one is found. I refute these defeatist stances.

        As for the fatalities. Maybe you should examine the numbers closer.

        Undercount? I counter they’ll probably adjust that downwards because of the fact of how they’re recording the fatalities. You’re more likely to get it as ‘Covid’ despite co-morbidities. In other words, if you have, say, diabetes and get Covid and die they may be more likely to record it as Covid. Tough for doctors I understand but there may be an incentive to do so.

        Of the 80 000 how many are of a certain age group? Here, 80% come from the elderly. So we know it preys on a specific demographic – the weak and those with pre-existing conditions. The vast majority of healthy population get all sorts of different symptoms but few result in death in any significant number.

        Had we acted to isolate the vulnerable better those scary numbers scaring you wouldn’t be as scary. Never mind had China reported the truth earlier we may have even avoided it altogether.

        It’s not the flu we know that and it ranges from acting like the common cold all the way to the worst kind of respiratory pain.

        “And if you think that people are just going to go back to work and to shopping and dining out and traveling as if it doesn’t exist, regardless of whether shutdown orders are in place or not, then you’re smoking something stronger than what’s legal.”

        Well, that’s my biggest point. We messed with people’s psyches over this. You’re a good example.

        Tell you what Bobby. You can go pant shit. I’m going to continue living my life because whether you like it or not, this thing is out there and sounds like you want it to control you. I ain’t going to listen to Fauci when he says ‘the virus will decide for us’.

        Fuck that.

        So stay home. Hoard diapers and let the rest of us move on. I don’t think this virus, despite its infectious prowess, is an existential threat based on what we know so far.

        1. We are not staying at home because of a 1% death rate. We are staying at home to not let it spread like wildfire and overwhelm hospitals, causing even more deaths.

          Stop trying to pretend this is about the former. It won’t work. It’s gonna spread. Why not have the fragile hole up and everyone else, who wants to anyway, get it and move on with life?

          The drip drip drip slowed economy is delaying technological progress, which costs lives, indefinitely into the future, where the deaths mount like compounding interest. If the world is a month behind, it’s a month behind forever, so every new treatment or cure is a month behind, and an extra month of deaths prevented by those cures happens, forever, for every treatment.

          We may have already killed more than we have saved. But those deaths are not in front of the cameras, where braying jackasses peacock around like angels.

          1. Are you, like, out of your mind? This makes no sense. You sound like one of those crazy mad scientists in the comic books who babble on about ‘greater good’.

            FOLLOW ME: You can’t stop the spread. That’s the point. No one is blocking anything except the government stupidly thinking it could ‘control’ it by burning down the house to save ONE room.

            It was ORIGINALLY waaaayy back in March to ‘not over whelm the system’ and ‘flatten the curve’. This was achieved. In Europe, this was the plan and they quietly opened up with not fuss. Here? We bitch and moan like a bunch of whiny bitches saying stupid things like ‘SECOND WAVES’!

            The goal posts shifted to ‘save every life’. Gee, talk about pushing the sheep over the cliff now. They tried to soften you up to string you along until a ‘vaccine is found’. Problem is, this little thing called the economy got in the way and they were that stupid to think they could keep draconian measures in place despite human nature wouldn’t allow for it. You can’t social engineer people’s habits. Man is a SOCIAL being.

            We’ve never attempted such a foolish thing in history.

            You too. Here’s a coupon for some Huggies.

            And take Fauci with you.

          2. Case fatality rate by group:

            0-9 0.0%
            10-19 0.0%
            20-29 0.0%
            30-39 0.2%
            40-49 0.5%
            50-59 2.3%
            60-69 6.6%
            70-79 13.7%
            80+ 28.8%

            See those stats?

            They should ANGER YOU. Schools should never have been closed and Fauci (and Tam here) in a better age would sit in a dunk tank.

            1. You can enjoy your anger.

              Other people seem to have a different risk level (for both themselves and others) than you, and politicians seem to be reflecting the populous if polls are correct.

              I know it’s hard to be in a republic when the people keep disagreeing with you, but I’m sure you’ll soldier on.

              1. I was one of those businesses hit. I’m managing. Not all of us got a paid vacation while pretending to be ‘together’ as they continue to collect a pay check. Spare me. We sacrificed a specific portion of the economy to soothe the rest. I would take people far more serious if they felt the financial pinch. There was perhaps in the beginning some sort of calculus at play but, again, once the unintended consequences became obvious and the cure was becoming worse than the disease, it was time to pivot.

                Instead we got double-talk and double-downs.

                I said ‘should’ I didn’t say I was. I’m more just plain disappointed at how we handled it all.

                Look pal. I went along with it. But because I like to pay attention, it became apparent early that maybe we were over doing it considering the facts. You can keep pretending be my guest, but I don’t think we were wise about it.

                Nice try though with that republic crap because they just ripped you a large one the way they had their way with you.

              2. And try to keep focus: Look at those numbers and try and tell me we did the right thing.


                1. You’re appealing to incredulity. That’s a fallacy.

                  I think those rates translate to a crapload of avoidable deaths, and that the price we’ve decided to pay is a good one and speaks well for how life is not cheap in America.

                  1. You’re one big appeal to emotion and authority.

                    No, the trade-off will prove to not be in our favour.

                    It already is showing it.

                    1. I’m appealing to emotion? You’re the one asking me to get angry.

                      As for appealing to authority, since neither you nor I are experts, and there’s a consensus on the issue, I think it’s better than your appeal to ‘it’s impossible to react to the numbers differently than I do, man!’

              3. We don’t need a referendum or your non-scientific polls to deal with this. Those with less tolerance for risk can stay home.

                1. That’s…not how pandemics work, though. It’s not just a risk to yourself.

            2. It’s an infectious disease. People who aren’t at risk from dying from it spread it to other people.

              1. They only spread it to other people that choose to go out. And the number of people who have no choice but to go out is minuscule.

                1. Come on, at this point you’re this ignorant about how a pandemic response works?

                  No one is sealed completely in. No one is risk free.
                  Social distancing is as much about other people as it is yourself.

                2. “And the number of people who have no choice but to go out is minuscule.”

                  People who need to earn a living kind of have to go out, don’t they.

                  I’m retired, and so haven’t been going out to places with people much, but I have that luxury of staying in because people are going to work every day to keep the water and sewer on, the electrical grid up, to drive the trucks that bring the food to the supermarket, to do the curbside loading thing for me at the supermarket, and on and on. If those people decide to stay home, then my ability to stay home just ended.

                  And people in retirement homes do get to stay home, but when the caregivers catch it and come to work when asymptomatic…

        2. Undercount? I counter they’ll probably adjust that downwards because of the fact of how they’re recording the fatalities.

          Ah. The “undercount myth.” Hey Trump said it, so it musty be true.

          Just how gullible are you? have you looked at the actual number of deaths compared to last year?

          1. Like usual, mendacious cunts go with presumption.

            Yes. I listen to Trump and gonna marry a carrot.

            You guys are supporting an IRRATIONAL position. The lockdowns aren’t rooted in science and have long out-lived its usefulness. Now it’s counterproductive crossing into malice.

            People are playing the violin as things burn.

      2. Undercount?!?

        If you run a motorcycle into a brick wall, and the pathologist gets a positive test, you are counted.

        1. Which is what I said…and believe why they may adjust those numbers.

          And if I’m right (which is rare) we’re gonna be very red in the face.

          ‘Whoops. Sa-wee!’

      3. But it’s plenty lethal. 80,000 deaths to date in the US (which is almost certainly an undercount) and a high likelihood of a second wave in the fall.

        There is probably a death under count but there is certainly an under count of cases, orders of magnitude greater than the death under count. The fatality rate is more likely in the low .x range.

        1. Yeh. That.

          I suspect there will be some adjusting like they do in finance.

      4. “I’ve yet to hear any politician suggest that “we should remain closed” until there’s a virus. ”

        Not paying attention I guess. Joe Biden’s chief of medical and corona stuff is one of many.

        1. Rather than debating “lock it down” vs. “let it open,” we need to discuss what the preconditions are for a restoration of activities — more widespread testing, adequate hospital beds for the sick and adequate gear for health-care workers — and what a gradual restoration of activity will look like when the time comes. Our economy is not an on/off switch, it is a dial: the dial is at low now (but not zero); when we dial it back up, it should not immediately go back to the highest setting.

          What a nut.

          1. “Conferences, concerts, sporting events, religious services, dinner in a restaurant. None of that will resume until we find a vaccine.”

            1. LOL Ezekiel Emanuel? He’s talking about normalcy, not complete lack of those things.

              Also GTFO with ‘Joe Biden’s chief of medical and corona stuff.’ That’s Ron Klain.

              You need to stop reading Breitbart uncritically.

              1. and that’s you modifying his statement to make your point. If that were Trump, you’d call your own statement a lie.

                1. He called someone the chief of Biden’s ‘medical and corona stuff’ and then took his statement out of context.

              2. Lol indeed. Yeah actually what I did was watch an MSNBC interview, and my conclusion based on a 2 minute video is that this is a legit evil bad guy.


                1. You know what? I’m pretty sure you weren’t watching MSNBC.

                  Heck, I’m not even sure if you watched the video, since it makes quite clear what I said – he’s not saying ‘Conferences, concerts, sporting events, religious services’ stay closed until a vaccine, as you implied.

                  Quit being a useful idiot. I’ve seen you be smarter than that.

                  1. Sarcastr0, you liar! That’s exactly what he DID say, starting from 1:50 in the video! Holy cow.

                    I quote:
                    “We cannot return to normal until there’s a vaccine. Conferences, concerts, sporting events, religious services, dinner in a restaurant; none of these will resume until we find a vaccine, a treatment, or a cure.”

                    1. Sarcastro is like a bot that parrots DNC talking points and flatly denies reality as needed.

                    2. Sarcastr0, you liar! That’s exactly what he DID say, starting from 1:50 in the video! Holy cow.

                      Yeah, I’m bookmarking this one. The man(?) is shameless.

    2. “As of today, 10 902 cases and 421 deaths or 72 deaths per million.”
      Agree it’s not looking good, because when this is all over only 99.998% of us will be left….

      1. If 99.998% survive, that means only about 6500 will die in the USA.

    3. We have actually “shut down people’s lives and prevented them from earning a living” on numerous occasions, but let’s limit it to the times where we quarantined the healthy due to “prevailing illness.” In America , we quarantined the healthy with the ill at least twice: once during the Civil War (where the Union Army of Aggression housed sick former slaves with well former slaves in a deliberate effort to reduce the number of former slaves, resulting in the greatest loss of former slaves’ lives known in the war) and once in colonial Puerto Rico (again, as part of a deliberate attempt at population reduction). We won’t even discuss the German use of disease in places such as the Warsaw ghetto.

      Both actual injury and fear of injury make disease an effective control mechanism.

      1. Thanks for the info. And while I knew about the Ghetto it didn’t register until you mentioned it.

        So, are you suggesting there was some kind of ‘pre-orchestrated’ ploy here? I like to think it was general incompetence and when one country locked down, all nations just followed suit without much thinking or questioning. They just ‘assumed’ it was the thing to do.

        But the second the realization that lockdowns were just delaying the inevitable, it should have been lifted. We tried and it didn’t work.

        You DON’T double down on stupid.

        I give full props to Sweden here. They were much more sober and brave than we were.

    4. “When Winnipeggers start to question things, you know you’re losing the plot.” Made my morning.

  7. The part to read to understand this decision is Brian Hagedorn’s dissent. Hagedorn is a bona-fide conservative who won election last year in a heavily-contested contest with a liberal judge. His dissent is pretty devastating to the majority opinion, much of which reads like a political screed.

    Hagedorn seems to be someone who actually cares about the text of the legislation, which is quite clear regarding the powers of the Department of Health to deal with “communicable diseases.” I’m sure I will disagree with many of his opinions in the future. But this dissent is quite impressive.

    The pot shots that Rebecca Bradley’s concurrence takes at the dissenting opinions, on the other hand, are far from impressive and verge on the ad hominem. I get the sense that the Wisconsin Supreme Court is not a very harmonious workplace.

    1. It hasn’t been for awhile. There was some craziness when David Prosser was there, which included an alleged choking incident and a confirmed calling the chief justice “bitch” during a conference.

    2. I found the dissent totally unpersuasive, for reasons stated in above thread.

      The exemption from rulemaking requirements his position would create would defeat the entire purpose of the statutory rulemaking procedures. Agencies can do whatever they want, so long as the situation addressed is “specific” or non-permanent? Nonsense.

      And go ahead and try to distill a cognizable standard from his opinion… is it “special”, “specific”, or “non-indefinite” rules which are exempt? You will find nothing of coherence save “Order 28 is exempted.”

  8. Another VC Corona thread. Protestations of tyranny, arguing we should lump a few deaths from the virus, and of course the charge that liberal states are tanking their economies in bad faith because they want to.

    Not even arguments, just statements.

    Trump is working hard to partisanize this. So far about 20-30% of the more softheaded have been swayed. Reason, eh?

    1. You keep playing this “good guys want to keep the shutdown, bad guys want to open up” bit. This is a complex issue but it is definitely not “softheaded” to weigh the effects on the economy and on people’s lives against some additional risk. It is also not ridiculous to consider that most of the country is not NYC and restrictions should be adjusted accordingly.

      1. No – you can argue that opening up is good policy in good faith.

        But notably no one is – they’re crying tyranny and fake numbers and other such rot.

        Though I’d add the ‘we should treat cities differently’ is also a very bad argument; it ignores both the science and the experience of the rest of the freaking world.

        1. No – you can argue that opening up is good policy in good faith.

          But notably no one is – they’re crying tyranny and fake numbers and other such rot.

          Exactly. Instead of assuming good faith disagreement it’s all about Korematsu and phony numbers and so on. The usual crap from the Trumpists.

        2. “Though I’d add the ‘we should treat cities differently’ is also a very bad argument; it ignores both the science and the experience of the rest of the freaking world.”

          I’m curious to hear your take on the science, or rather the math.

          For example, I live in the Spokane area. The Spokane area has a population of 600K or so. It is the regional medical hub for about half of WA, half of ID, and a third of MT. The local hospitals have a few hundred ICU beds[1] in total (and might have set up some additional space for expected covid patients some weeks ago). The local health dept. publishes the number of covid patients – this morning’s number was 3.

          No one knows for sure, but the best guesstimates I have seen are that a vaccine is 12 to 18 months, or more in the future. Is your estimate of the situation that we can maintain a tight enough lockdown for that period that the overall number of infections is substantially under the threshold of herd immunity?

          My understanding of the ‘flatten the curve’ argument is that it was assumed we would reach herd immunity before a vaccine is ready, i.e. it wasn’t trying to minimize the number of cases, it was trying to keep the number of simultaneous cases below ICU capacity. Was that also your understanding?

          If so, having 3 covid patients, and lots of empty ICU beds (they are furloughing nurses here because there is no work for them to do in the half empty hospitals) seems like overkill. Even ignoring the economic costs and the health costs of delayed treatment[2], what happens when we reopen K-12 schools in Sept (or is the plan to write off another year for the nation’s children?)? That will presumably cause a spike in infections. What if that spike is large enough that we overload the local ICUs? Wouldn’t it be better to have absorbed some of that load now when there is substantial unused capacity?

          Why shouldn’t the local conditions be considered when assessing local strategies?

          [1]sorry to be so fuzzy on that number – the local paper quoted the number some weeks ago and I couldn’t find the article again.
          [2]for example, I know people delayed indefinitely waiting for surgery for a detached retina, which can cause imminent, permanent blindness, and on cardiac surgery for an arrhythmia that could trigger a stroke at any time.

          1. I don’t think anyone is arguing we need to stay locked up for a vaccine. What we’re waiting for is testing and contact tracing infrastructure. As other countries have.

            And appealing to current numbers in an epidemic is quite silly. You don’t base risk on the snapshot of current events.
            And the experts, both here and abroad, don’t think fine graining policies in a pandemic makes a lot of sense, due to the virulence numbers remaining quite high even in more spread out areas.

            Basically: you and I are not experts. Experts may not be correct, but the risk of their being incorrect is less than the risk that you or I are incorrect.

            1. Well, the number in the hospital has been dropping over the last several weeks … it had been as high as 11 … out of hundreds of available beds. Let’s suppose it drops to zero. How much flatter should we wait for the curve – remember the curve, the one that is about not overloading the hospitals – to get?

              Interest rates can be negative, but I don’t think we can have less than zero patients in the hospital.

              1. You’re cherry-picking hypothetical numbers.

                Looks at Trump’s reopening guidelines. Lowering the infection (NOT hospitalization) rate is one factor, infrastructure is another. We’re not near there, but we are getting better. Pennsylvania is actually got some good stuff going on I hear.

                It’s quite foolish to say ‘no one is sick right now, so no need to take measures!’

                1. “You’re cherry-picking hypothetical numbers.”

                  Ummm…read ’em for yourself.
                  -3 current patients in the hospital
                  -only 1 new hospitalization so far this month

                  “Lowering the infection…”

                  Single digits for the last three weeks.

                  “It’s quite foolish to say ‘no one is sick right now, so no need to take measures!’”

                  Better, then, to have a monster spike when school opens in September? I don’t think the votes are there to keep school shut all next year.

                  1. Sarcastro is famous for his aversion to facts and propensity to manufacture endless streams of outlandish strawmen.

            2. “I don’t think anyone is arguing we need to stay locked up for a vaccine.”

              Oof. Yet another deeply ignorant lefty so immersed in their stew of BS they don’t know which way is up.

              1. Oof yet another non-engaging post.

                Provide an argument next time. You used to do that regularly.

                1. Zeke Emanuel, brother of the man who famously said never let a good crisis go to waste, and Joe Biden’s head medical and coronavirus expert:

                  “Conferences, concerts, sporting events, religious services, dinner in a restaurant. None of that will resume until we find a vaccine.”

                  He’s just a good-hearted, neutral scientist looking out for the good of the country at this troublesome time of facing a new virus that’s likely about as deadly as the flu.

                  1. That guy is a bio-ethicist at the centre of all the hysteria. How he even has a platform to spew his prognosticating BS is beyond me.

                    Their solution is basically: Cower and wait until we tell you it’s time to come out with this vaccine.

                    Are you mental to listen to this madness?

                    These clowns up thread are something else. We have literally many quotes from politicians and medical bureaucrats who tried the ‘no normal until a vaccine is found.’ It was premised on the ridiculously specious claim it’s 12-18 months away. Hence you get stupid comments like ‘social distancing until vaccine is found.’

                    Only here we talk like idiots like the three morons up top. In Europe they took their two month lockdown and quietly are opening up. No fuss, no muss. No ‘OMFG how irresponsible!’ All these people think they’re heroes but are in fact cowards too scared to stand up and recognize there’s no legit point to be made to justify these measures.

                    How dumb is it? Well, you got low IQ leaders saying, ‘Ok, malls can open but pick up your shit on the curb.’

                    How the fuck is this remotely a) feasible b) scientific and c) a way to control a virus that’s already in circulation? Wear your masks but it’s too late sheep. Bah, bah, bah.

                    Shitheads here want a ‘good faith’ reason as to why we should.

                    How about fuck you? Is that good enogh. The whole entire premise of the lock down was SPECIOUS to begin with.

                    And it has nothing to do with the counting of the bodies. That’s just a point brought up and you clowns are zeroing in on it because you’re sheep.

                    The point is the UNINTENDED CONSEQUENCES from higher suicides, bankruptcies, sky rocketing debt and unemployment, child molestation, divorce, domestic violence etc. are ALREADY showing to be a social problem.

                    Is that enough ‘good faith’ for you?

                    The extended lockdowns aren’t rooted in science. It’s all politics and nonsense.

                    Now go pant shit on your own bloody time.

                    I recognize this is ranting but I’ve really had it. In the past we good just debate with illiberal ignoramuses and just smile and walk away. But now they’re literally STARVING PEOPLE because they believe every thing that attention whore Fauci spews because they’re NPCers who hate Trump.

                    I’m going to get a Snickers bar. I’m not myself when I don’t eat a Snickers.

                    /gives the finger.

                    1. Normal post right here.

                    2. Well said. At a minimum, the proper response to tyranny is the finger.

                      Sarcastr0 has no principles. Pointless to engage.

                    3. Screw you, Law. Not everyone who disagrees with you lacks principles.

                      I’ve said I was incorrect and withdrew before, and I’m sure I’ll do it again. Have you done the same around here?

                  2. ML, I looked into it and it looks like you’re quoting an article about when we return to normal out of context.

                    Someone is leading you astray, and you’re smarter than that, but partisan enough to fall for it.

                    1. Go back in the pantry and go be scared on your own.

                      I bet you you’ve been cashing a check through all this.

                      What a fucken hero. Bravo! Such courage!

                      ‘I just listened to Bon Jovi sing! We’re all in this together it’s so true! What? You want to open your business to feed your kids? Are you a monster? Get a load of this Trumpista who wants granny to die! Maybe you need to do some Yoga! Go thank an essential worker you non-essential peasant!’

                    2. Yeah, super manly to beat your chest about a virus. I’m all aswoon.

                      This is about policy, chucklehead. Bravado isn’t going to get you there.

                    3. No Sarc, this is what the guy said in an MSNBC interview. Give up and admit defeat.

                    4. I have the same concerns as the next person about it. My wife has health issues. So do people in my family. I’m not being ‘tough’. What I’m telling you is the cure is worse than the disease and you should’t let the virus control you. We’re not in this family.

                      And we resent this tyranny of the hysterical mob telling us how to think about it.

                      We drew our line.

    2. All of my lefty friends are extremely partisanized on this. No wonder, since their media outlets are more deranged and partisanized than ever before on coronavirus – quite an accomplishment to crown the last 4 years of unprecedented media idiocy and bias.

      1. All of my lefty friends are extremely partisanized on this.

        Or, just maybe, you’re the partisanized one? It’s not like you’re not partisan. In fact you’re regularly so partisan I’m gratified you’re able to have liberal friends.

    3. We see you’ve been swayed, just by those supporting tyranny but that’s not surprising.

  9. In Wisconsin at 54246, my neighbor grandmothers are wringing their hands. “Oh, how stupid! What are we going to do? What if … ?”

    There is no publicly (‘HIPAA’) available evidence of the presence of the virus in a community of seniors. There has been here ZERO testing publicly acknowledged. Absence of evidence is not evidence of absence.

    “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.“

    Good people ought to be armed as they will, with wits and Guns and THE TRUTH.

    1. This virus isn’t killing people! We should use guns instead!

  10. From a partisan website I sorta enjoy, some recent Federalist takes on the virus:

    “Imagine for a moment that the nation were ruled by dictatorship of doctors…”

    “Is it right for the nation to require our children’s futures be destroyed to keep alive less than 1 percent of our population until the next flu season?”

    “It seems harsh to ask whether the nation might be better off letting a few hundred thousand people die.”

    “So the barbaric, panicky elevation of mere life as the only good worth conserving is becoming increasingly shameful.”

    “Is death the worst thing that could happen to you?”

    1. And?

      Those are pertinent questions.

      When the check engine light comes on in your car, do you drive it off the cliff?

      If you do, make sure you remain in it.

      Because if you can’t take a second to understand the misery this has caused, you’re a POS.

      265 million on the brink of starvation in the world according to the UN due to a shutdown we CHOSE to push.

      It’s the epitome of over-reaction for ONE segment of a population we could have easily protected and isolated.

      1. You’ve got issues.

        Arguing it’s immoral to disagree that we should just let people die for optimal capitalism is…sociopathic.

        1. Were you always this incredibly dimwitted?

          It’s not what I’m saying at all.

          Actually, I’m considering all people impacted, you’re the one fooling yourself thinking you’re actually being ‘compassionate’. You and your ilk are the sociopaths. You’re burning down an economy to make sure ‘no one is left behind’. I want you to go and actually think – THINK – where that leads to its logical end.

          And here’s another thing. I’m old enough to remember and know that people in general don’t give a shit about TWO demographics: Elderly and Veterans. It’s no secret nurseries and how we treat Vets has been a national disgrace in both Canada and the USA forever. Every year since the 80s we’ve been hearing about the decadent conditions in such places. AND NOTHING WAS EVER DONE.

          So yeah, I think you’re all full of shit.

          On top of it all, WE SENT THEM TO THEIR DEATHS during this mess.

          You don’t care, you never cared and you still don’t care.

          And somehow I’m the sociopath for pointing out the fact we’re run by incompetent swamp creatures who are now protecting their delinquent asses. Then morons like you swallow their incredibly incoherent messages and believe they actually care about people.

          Hello. McFly!

          Nah. I’m fine. I just marvel how close to sheep we really are.

          1. You, uh, appear to be ignoring the deaths, sir.

            1. He’s got your number: you are the innumerate, progressive sociopath.

  11. Hm. Not a cheesehead myself, nor savvy in Wisconsin law, but it’s odd that this is an original action in the state’s highest court seeking declaratory relief. There’s a reason we have courts of first instance — keeps the furoroe of the facts from logic of the judgment.

    Wisconsin has enacted the model declaratory judgments act (https://docs.legis.wisconsin.gov/statutes/statutes/806/04 ) — note that the model act specifically says that administrative exhaustion isn’t superseded, and the state-specific notes clearly say that the party challenging the action must have a personal, justiciable stake in the outcome, which in this case would only be legislative standing.

    I’m not sure if I would have left those avenues to challenge so open. But undoubtedly, forces much stronger than legal process are animating things at the moment.

    Mr. D.

    1. It is odd and while I think the dissent’s analysis of the rulemaking issue is complete nonsense (see post above), I would grant that it may have a point about the Plaintiff-Legislature’s standing to challenge the ultra vires issue (issue 2 of 2 in the decision). I don’t know enough about the standing law there to offer an opinion.

  12. Westport, you attempted to hoodwink folks into believing it was not ordered, but encouraged, and you failed.

    “1. Stay at home or place of residence. All individuals present within the State of Wisconsin are ordered to stay at home or at their place of residence, with exceptions outlined below. ”

    The travel exception is for “essential travel.”

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