Laws are a dead letter without courts to expound and define their true meaning and operation. —Alexander Hamilton1
On May 13, 2020, the Wisconsin Supreme Court ruled that Department of Health Services (DHS) secretary Andrea Palm’s lockdown order (Emergency Order 28) was “unlawful, invalid, and unenforceable.”2 The decision immediately freed Wisconsinites to again go about their lives and to reopen businesses that the order had declared “nonessential.”3 Although the court’s ruling is a partial victory for freedom, it falls short of making a principled stand for individual rights.
Several justices did engage in a crucial debate on the fundamentals of America’s political philosophy, but this was relegated to an addendum of five opinions issued with the ruling. The ruling itself was made primarily on the basis of a technical distinction between “orders” and “rules.” This, in turn, appears to have been decided on a poor interpretation of Wisconsin laws and precedents, tainting the ruling with malfeasance and partisan rancor. It didn’t have to be this way.4 . . .
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Acknowledgments: Although the opinions expressed in this piece are my own, I’d like to thank Timothy Sandefur for his helpful insights on this case and on the history of the non-delegation doctrine.
1. Alexander Hamilton, “Federalist No. 22,” The Federalist vs. Anti-Federalist Dispute: The Original Arguments for Each, Kindle edition (independently published, 2011), loc. 117.
2. Palm ordered “All individuals present within the State of Wisconsin” to “stay at home or at their place of residence” except to engage in “essential” and explicitly permitted activities. She ordered that all “Non-essential business and operations must cease . . . all activities at facilities located within Wisconsin,” excluding only “minimum basic operations,” such as processing payroll and facilitating remote work. Her order’s “Social Distancing Requirements” also mandated “Washing hands with soap and water for at least 20 seconds as frequently as possible,” “Regularly cleaning high-touch surfaces,” and “Covering coughs or sneezes”—and it proscribed shaking hands. It warned that “Violation or obstruction of this Order is punishable by up to 30 days imprisonment, or up to $250 fine, or both.” See Secretary-designee Andrea Palm, Governor Tony Evers, “Emergency Order 28: Safer at Home Order,” State of Wisconsin, Department of Health Services, April 16, 2020, https://evers.wi.gov/Documents/COVID19/EMO28-SaferAtHome.pdf; Wisconsin Legislature v. Secretary-Designee Andrea Palm, Supreme Court of Wisconsin, 36, https://www.wpr.org/sites/default/files/wi_legislature_v._andrea_palm_-_decision.pdf.
3. Of course, being free to risk one’s health does not mean that it is rational for all people in all circumstances to do so. Lovers of liberty can applaud the court’s decision to overturn Order 28 without endorsing those who use their restored freedom to take shortsighted risks. For more on this topic, see Jon Hersey, “Lockdowns Versus Living,” The Objective Standard 15, no. 2 (Summer 2020), https://www.theobjectivestandard.com/2020/04/lockdowns-versus-living/.
4. The state legislature, the body that originally granted DHS its powers, challenged Palm’s order, requesting that the Supreme Court decide whether that order was actually an “order” or, instead, a “rule.” Under Wisconsin law, a rule is essentially a law; once issued, it is applicable going forward. By contrast, an order remains in force only during a specific situation. DHS may issue orders unilaterally, but it must work with the legislature to make rules. Although Palm’s attorney and three of seven justices argued that Order 28 was just that, an order, four justices concurred that it was a rule. Thus, they concluded that when the secretary issued it unilaterally, she violated the law. However, Justice Brian Hagedorn cogently argued that Order 28 “is a temporary order issued to address the outbreak of a particular communicable disease” and so “does not meet the definition of a rule.” See Wisconsin Legislature v. Secretary-Designee Andrea Palm, 110–60.
5. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 40.
6. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 42.
7. Wisconsin Legislature v. Secretary-Designee Andrea Palm, 72–73.
8. See Woodrow Wilson, “What Is Progress,” in American Progressivism: A Reader, edited by Ronald J. Pestritto and William J. Atto (New York: Lexington Books, 2008), 50; also see Frank Johnson Goodnow, “The American Conception of Liberty,” in American Progressivism, 61–62.
9. For more on this topic, see Ronald Pestritto, “The Birth of the Administrative State: Where It Came from and What It Means for Limited Government,” The Heritage Foundation, November 20, 2007, https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited; also, for a list of administrative agencies, see “Agencies and Offices of the Administrative State,” Ballotopedia, https://ballotpedia.org/Agencies_and_offices_of_the_administrative_state (accessed May 19, 2020).
10. See Noble E. Cunningham, In Pursuit of Reason: The Life of Thomas Jefferson (Baton Rouge: Louisiana State University Press, 1987), 64–75.
11. Alexander Hamilton, “Federalist No. 28,” The Federalist vs. Anti-Federalist Dispute: The Original Arguments for Each, 116.
12. Subchapter II: Powers and Duties Related to Emergency Management of the Wisconsin Statutes says, “If the governor determines that a public health emergency exists, he or she may issue an executive order declaring a state of emergency related to public health for the state or any portion of the state and may designate the department of health services as the lead state agency to respond to that emergency.” See Wisconsin Statues, 323.10, https://docs.legis.wisconsin.gov/statutes/statutes/323/II/10.
13. Eric Lipton et al., “He Could Have Seen What Was Coming: Behind Trump’s Failure on the Virus,” New York Times, April 11, 2020, https://www.nytimes.com/2020/04/11/us/politics/coronavirus-trump-response.html; Shawn Boberg et al., “Inside the Coronavirus Testing Failure: Alarm and Dismay among the Scientists Who Sought to Help,” Washington Post, April 3, 2020, https://www.washingtonpost.com/investigations/2020/04/03/coronavirus-cdc-test-kits-public-health-labs/; Bob Ortega et al., “How the Government Delayed Coronavirus Testing,” CNN, April 9, 2020, https://www.cnn.com/2020/04/09/politics/coronavirus-testing-cdc-fda-red-tape-invs/index.html.