WisconsinEye
Justice Rebecca Bradley during a virtual hearing of the Wisconsin Supreme Court on May 5.
State Supreme Court Justice Rebecca Bradley went viral this week for comments she made during oral arguments on a lawsuit challenging Wisconsin’s “Safer at Home” order. In the court’s first question to state lawyers, Bradley asked whether it “was the very definition of tyranny” for Gov. Tony Evers’ health secretary-designee, Andrea Palm, to issue measures to combat the coronavirus pandemic.
“Where in the [Wisconsin] Constitution did the people of Wisconsin confer authority on a single, unelected cabinet secretary to compel almost 6 million people to stay at home and close their businesses and face imprisonment if they don’t comply?” Bradley asked Assistant Attorney General Colin Roth during a virtual court session on May 5. “The people never consented to a single individual having that kind of power.”
On April 21, just days after Evers directed Palm to extend the unprecedented public health order until May 26, the Republican majority in the Wisconsin Legislature filed an emergency petition with the state Supreme Court to block the Safer at Home order that closed schools and many businesses and restricted travel. The lawmakers argued that they never intended to give Wisconsin’s health secretary “czar-like,” “monarchical power,” even during an outbreak of a highly contagious disease like COVID-19.
Seeking to test the limits of Palm’s authority, Bradley, who is part of the court’s 5-2 conservative majority, cited the landmark 1944 U.S. Supreme Court decision — Korematsu v. United States — upholding an executive order from President Franklin D. Roosevelt that paved the way for incarcerating Americans of Japanese descent during World War II.
“Could the secretary...order people out of their homes into centers where they are properly socially distanced in order to combat the pandemic?” asked Bradley.
Roth responded that Korematsu “was an equal protection challenge” and the Republican lawsuit wasn’t seeking to overturn the Safer at Home order on constitutional grounds. Not to mention, there is ample evidence that the coronavirus is a real threat — unlike the unfounded and racist assumption that Japanese Americans were acting as spies during World War II.
The Democratic Party of Wisconsin, sensing opportunity, quickly sent out an email to supporters noting that Bradley had compared “Evers’ life-saving stay-at-home order to Japanese internment camps.” The justice’s comments were also widely mocked on social media. That prompted Rick Esenberg, general counsel of the conservative Wisconsin Institute for Law & Liberty, to defend Bradley’s analogy.
“The outrage over Justice Rebecca Bradley's question about a U.S. Supreme Court case approving Japanese internment camps is uninformed and reflects a lack of understanding of the legal issues,” Esenberg wrote on Facebook. “It is not about whether ordering people to stay home is ‘like’ being in an internment camp. It is about whether the power to make rules or issue orders restricting liberty in response to a perceived emergency can be placed in the hands of a single executive officer without direction or limits on its scope.”
But attorney Lester Pines, who filed an amicus brief on behalf of several unions in the case, tells Isthmus that Bradley’s comment “reflects a lack of historical knowledge” and “parrots right-wing talking points.” More importantly, Pines says, the justice’s line of questioning is “totally irrelevant” to the GOP’s challenge to the Safer at Home order.
“From the start, Bradley started talking about the unconstitutionality of the order. But that issue wasn’t even in front of them by the Legislature's own admission,” says Pines. “This lawsuit is about power. Just not in the way Bradley framed it. It is about whether the Supreme Court is going to allow the Republican majority to control the response to a pandemic. And, I’m afraid, the answer is probably going to be yes.”
The lawsuit from Republicans argues Palm didn’t follow the rule-making process for state agencies that gives the Legislature a say in how laws are implemented. However, state statutes give broad authority to the executive branch, via the secretary of the Department of Health Services, for the “control and suppression of communicable diseases.” There is, in fact, another lawsuit pending before the Wisconsin Supreme Court — brought by a GOP donor from Waukesha County and a congregant of Lakewood Baptist Church in Pewaukee — that does challenge the Safer at Home order for violating the First Amendment.
Pines sought to intervene in the case on April 28 but was denied by the court the same day. In his motion, he argued the Legislature doesn’t have the authority to challenge Evers’ order on statutory grounds. He says in order for Republicans to bring the lawsuit, they needed to show the Legislature would be “irreparably harmed” and had no other “adequate remedy.”
“The court should never have even agreed to hear this case because the Legislature has a great remedy: They can pass a law tomorrow that says this is how the response to the coronavirus pandemic is going to be,” says Pines. “But you know why they didn’t want to do that? It wouldn’t give the Legislature absolute power because laws are subject to a gubernatorial veto. [Republicans] would have to possibly negotiate with Senate Democrats and the governor. You know, what most people would call legislating.”
By going through the Wisconsin Supreme Court, with its conservative majority, Pines says GOP lawmakers will have the upper hand.
“[They] get to ultimately determine what's going to happen. Since they have veto power over administrative rules, they have leverage to negotiate with the governor,” says Pines. “So Republican leadership in the Legislature can say, ‘You have to do what we want, or nothing will be done.’”
Howard Schweber, a political science professor and legal expert at UW-Madison, says state governments have for more than a century exercised extraordinary powers to address public health emergencies.
“This is a very, very old idea that goes back to common law. Historical examples include states' ability to quarantine ships, quarantine groups of people, quarantine goods, and close towns in sort of the way we have now,” says Schweber. “There's nothing even a little bit radical about that. And under this traditional view, the governor, and by extension the secretary of health, have a lot of power.”
More than a dozen legal scholars from around the country filed a brief in the GOP’s challenge to Safer at Home. They argued that every state in the union gives state officials “significant discretion to mitigate pandemics and other acute health threats” without immediate legislative approval.
“Yet at a moment of deep uncertainty about the vectors of contagion, the vulnerability of Wisconsin’s residents, and the risk of a resurgence, the Legislature demands that this court gut the [department of health’s] powers by adopting a cramped and implausible reading of [state law],” wrote the law professors in the brief.
But Bradley wasn’t the only justice who was skeptical that Wisconsin’s health secretary, under the governor’s direction, could impose bans on mass gathering, close schools and places of worship, and shutter businesses deemed “nonessential” — even during a global pandemic.
Justice Daniel Kelly, who will be leaving the bench in August due to his defeat in the April election, repeatedly asked the assistant attorney general how Palm could impose criminal penalties — typically the exclusive responsibility of lawmakers — to enforce public health orders.
“If the criminal standard is contained and created by [the Safer at Home order], then the secretary, all by herself, created a criminal law,” said Kelly. “She can all by herself, sit down at her computer keyboard, write up a description of behavior and make it criminal, correct?”
Roth conceded Kelly’s point but argued that there are limits on what the executive branch can do during a declared public health emergency; actions must be specific to containing a communicable disease and are subject to challenges on constitutional grounds. He said the Legislature itself “decided that a public health agency needs flexibility to act in these extreme circumstances.”
“I think if the Legislature decides that, after it sees this crisis pass, that more limits need to be placed on DHS’ authority in the statutes, it has every right to do so,” added Roth. “And I’m sure it will.”
Roth went on to compare the coronavirus to a different kind of emergency.
“Imagine that there's a wildfire that breaks out in southeast Wisconsin, and it starts just spreading all over the place. We can't get it under control,” Roth said. “The fire department decides it needs to set up firebreaks to stop the spread of this wildfire. So it says you need to close this highway, clear out these businesses and evacuate, cut down these trees, demolish these homes. Those are rules of conduct in the exact same way that [Safer at Home is].”
The public health crisis is not over, Roth argued, noting the virus’ recent outbreak in Brown County, which has been traced to meatpacking plants.
“I think the world that this court is being asked [by Republicans lawmakers] to put us in, is one in which we have these smoldering wildfires exploding into massive infernos and DHS is not going to have the ability to react,” said Roth. “The cases in Brown County, in the span of two weeks, surged over tenfold from 60 to almost 800…. These flare-ups, when Safer at Home is steadily lifted in stages, are going to happen all across the state.”
Chief Justice Patience Roggensack did not appear alarmed, responding to Roth’s warning with a remark that also made national news, “But that was due to the meatpacking. That’s where Brown County got the flare [up]. It wasn’t just the regular folks in Brown County.”
The court has not said when it expects to rule on the case. Pines expects the GOP-controlled Legislature will be victorious.
“Instead of legislating, [Republicans] ran to the Supreme Court because there is a majority of members of the court that are ideologically aligned,” says Pines. “The court is establishing another precedent that the Legislature can run to the Supreme Court anytime they want.”
Schweber, too, predicts the court will rule against the Evers administration. But he says it’s not necessarily all about politics.
“Does this court tend to side with Republicans in the Legislature? Absolutely. But I actually think there is a pretty straightforward legal explanation, too,” says Schweber, pointing out that state statutes impose a 60-day limit on the governor’s power to issue a public health emergency unilaterally. “I expect the court to say the intention of the law is clear: The governor has executive authority for 60 days. After, the Legislature has to be involved. So I predict the court will rule the extension of the Safer at Home order as unlawful.”
If the court sides with the Legislature, lawmakers are requesting a six-day stay on the decision. Attorney Ryan Walsh, representing the Legislature, said GOP lawmakers are only suggesting the delay to give time for lawmakers and the governor to negotiate what would come after Safer at Home.
“The court may wish to do that, but of course, the court may wish to simply enjoin the order immediately because it is unlawful,” Walsh told the justices.
But he did acknowledge that it would likely take 12 days — not six — for new measures to be put in place to limit the spread of the coronavirus.
Roth countered that “people will die” if the court scraps Safer at Home without any measures to replace it.
“It would be absolutely devastating and extraordinarily unwise. And that is exactly why the Legislature asked for a six-day stay,” said the assistant attorney general. “People [will] pour out into the streets and the disease will spread like wildfire, and we will be back into a terrible situation with an out-of-control virus with no weapon to fight it. No treatments, no vaccine, nothing.”
Pines is doubtful the Supreme Court will even put a brief pause on the decision to overturn Safer at Home.
“This is very dangerous because the Legislature’s basic approach is it is better to open the economy and let people die, rather than figure out a way to gradually reopen the economy and ensure people don't,” says Pines.
On that, Justice Bradley seems to agree.
“If the order is in fact unlawful, why would this court put a stay on its injunction?” asked Bradley. “Why would we let an unlawful order continue in place?”
