Not true, no laws were struck down. They simply overturned Emergency Order 28. DHS can even reissue the order, they just need to submit it to the appropriate legislative committee for approval.
At the heart of the lawsuit was a state law governing communicable diseases that says the Department of Health Services "may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics," and gives it the power to "authorize and implement all emergency measures necessary to control communicable diseases."
But the majority found Palm also had to follow another state law that requires regulations to be submitted to a legislative committee that can block them.
[1] https://docs.legis.wisconsin.gov/statutes/statutes/252/02
We can debate whether the Court was right, but not whether its position is a reasonable one. Clearly, deciding that statutory rulemaking procedures apply is a reasonable position. Clearly, also, deciding that they don't apply might well also be reasonable.
| We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), 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.
252.02 plainly says that DHS can issue orders or rules "The department may promulgate and enforce rules or issue orders". The court said they can only use rules. They made that up.
The court also said that while there is authorization under other statutes to take "all emergency measures necessary to control communicable diseases," insofar as these statues are used in this way, they violate the state constitution, because this is a fundamentally legislative power given to one (unelected) member of the executive branch. That is not Constitutional in Wisconsin, and the justices write, "In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether."
A concurrence went on to quote _Ex parte Milligan_, an 1866 case in which civilians were being tried by military tribunals, ostensibly due to the exigencies of the US Civil War, about why this matters: "No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of [the Constitution's] provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism..."
- 227.01 and 227.24:
> We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), 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.
- 252.25:
> Furthermore, Wis. Stat. §252.25 required that Emergency Order 28be 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.
I.e., Emergency Order 28 is not even necessarily overturned, rather, "there can be no criminal penalties" for violating it. Moreover, rulemaking procedures of chapter 227 can still be engaged and Emergency Order 28 (or a new order) can still come into full force if those procedures are followed.
You are either being ignorant / insufficiently careful (did not read the opinion, did not parse it, did not understand it, did not educate yourself -- one of those) or else you are displaying the "extreme partisanship" that you accuse the Court of. Court opinions that we disagree with, unless they are repugnant like Plessy vs Ferguson, are deserving of a minimum of respect, and even when they are repugnant to you, they may nonetheless be the law of the land for some time, so a more constructive take is to see how to work around a decision you disagree with. In this case the Court not only does not preclude your preferred outcome, but shows you how to get it: follow 227.24 in the process of promulgating the emergency order.
[0] https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?cont...
extremely partisan Wisconsin court has now struck down that law in a blatant act of judicial activism
By the way, Supreme Court justices here in Wisconsin are elected on statewide ballots, not nominated for life like Federal judges. Your basis for calling them "extremely partisan" is, what, exactly?
> We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), 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.
Check out the summary [0] elsewhere in these comments (not mine, but I found it helpful).
> Palm responded that Emergency Order 28 is not a rule. Rather, it is an Order, fully authorized by the powers the Legislature assigned to DHS under Wis. Stat. §252.02.
So the Executive asserted that Emergency Order 28 is not a rule.
> We conclude that Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning, Inc. v. DNR, 90 Wis.2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by theLegislature. 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.
I.e., 252.02 is not the whole story.
> In the U.S. executive orders simply don't and can't have the force of law without the support of statutory law, not relative to civilians[0]. If you want a law, it needs to be passed as a statute by the appropriate legislature and must become law via all the usual mechanisms.
This isn't true for many reasons including: the federal government controls a lot of what happens in the country indirectly and executive orders can decide what the law means (even if that meaning goes against what the law intended). Executive orders can for example suspend immigration. That absolutely affects civilians in an extremely practical way. More fundamentally, this kind of statement totally ignores how the legal system in the US works practically. Yes, there are laws, but laws are vague and must be interpreted. The federal government makes rules that interpret laws. These rules are what the law "is" practically. There is wide disagreement about what rules a particular law allows or doesn't allow. Executive orders can and do change these rules.
> That has nothing to do with corruption or taxes, and everything to do with long-established, well-thought-out, constitutional law. Yes, we're talking about constitutional law based on past skepticism of government
This is completely and utterly false! You shouldn't say these things without reading the opinion. Neither side made this argument at all and the court narrowly ruled that the rulemaking process had not been followed correctly.
> Also, the U.S. Constitution's requirement that State governments be (small-r) republican
There is no such requirement. This was also not about federal constitutional law, it was about the constitution of Wisconsin.
> extends the constraints on the President's EO power to the States' Governors.
Absolutely not. Each state has its own constitution, the federal constitution says no such thing at all. Also this case was not about an executive order!
> the Court might well rule that the clause does mean that Governors cannot impose emergency rules without statutory support
Again, please read the opinion before you say such things. The main argument was that some details of the law had not been followed.
> This was a decision by a court, not a question of whether the people support their governments
Only in the narrowest sense. It was a decision by a party, not a court. Republicans put their judges in power and the Republican judges made a decision. In that sense the US is absolutely unlike any other democracy in the world.
executive orders can decide what the law means
>>Also, the U.S. Constitution's requirement that State governments be (small-r) republican
There is no such requirement
"The United States shall guarantee to every State in this Union a Republican Form of Government, ..."
> "The United States shall guarantee to every State in this Union a Republican Form of Government, ..."
Perhaps it’s my imperfect understanding of English here, but to me this reads more like a guarantee to the states that the federal government itself will take the form of a republican government, not that the states themselves must be republics.
It’s like a shopkeeper saying “My store shall guarantee to every shopper prices that are no higher than that of a competitor’s.” The guarantee is on the shopkeeper’s part; no obligation is required of the shoppers themselves.
| The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; ...
That makes it pretty clear that this is about the States.
The Republican Guarantee is a commitment of the Federal Government to the States about the States. It means that the Federal Government will tolerate no State monarchies.
> The Republican Guarantee is a commitment of the Federal Government to the States about the States.
I'm not quite sure where the "about the states" part came from. To me, Article IV just reads like a set of promises the federal government must make to the states.
What?! How do you see that? The ", and" below is a conjunction, it's joining one commitment and another into a list of commitments made to the States:
| The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; ...
That clearly does not predicate one commitment upon the other. It's just a list of commitments.
The key word in my comment is "additional", which was intended to indicate that I was replying to "and shall protect each of them against Invasion".
I have to admit it's also partially my fault since I didn't notice at the time that you are not the same person who made the original comment I replied to, so I left out some context.
Otherwise I agree that it is just a list of commitments.
I doubt many in Wisconsin are interested in the constitutional subtleties, just as they're not interested in how the "spontaneous" activism and protests have been coordinated by astroturfing.
The bottom line is that this will be marketed as a blow for individual freedom against oppressive government interference, and that marketing frame will be an expedient and manipulative PR position which will result in many avoidable deaths.
Worse, it will also do very little to keep the economy running, because the real economic problems are going to happen upstream, and states have virtually no influence over what happens there. (Which on its own should be enough to expose the lie that "individual freedom" as a magic fetish against economic catastrophe is even a possibility in this situation.)
> This isn't true for many reasons including: the federal government controls a lot of what happens in the country indirectly and executive orders can decide what the law means (even if that meaning goes against what the law intended). Executive orders can for example suspend immigration. That absolutely affects civilians in an extremely practical way. More fundamentally, this kind of statement totally ignores how the legal system in the US works practically. Yes, there are laws, but laws are vague and must be interpreted. The federal government makes rules that interpret laws. These rules are what the law "is" practically. There is wide disagreement about what rules a particular law allows or doesn't allow. Executive orders can and do change these rules.
The President most definitely cannot promulgate Executive Orders that have the force of law without supporting statutory law from Congress. There is no argument about this in U.S. constitutional jurisprudence.
Presidential power is highest in military and foreign policy, and at its lowest in domestic policy. Immigration falls into foreign policy. Also, there's two plus centuries of statutes that delegate some Congressional powers to the Executive, such as tariff powers.
> > Also, the U.S. Constitution's requirement that State governments be (small-r) republican
> There is no such requirement. This was also not about federal constitutional law, it was about the constitution of Wisconsin.
This was addressed by other commenters.
> > This was a decision by a court, not a question of whether the people support their governments
> Only in the narrowest sense. It was a decision by a party, not a court. Republicans put their judges in power and the Republican judges made a decision. In that sense the US is absolutely unlike any other democracy in the world.
That is an outrageous take. The justices in question are elected, not nominated. (IIRC there's a nomination-then-election system in Wisconsin.)
The U.S. is a republic, which means it has stringent procedural rules. Some aspects of American governance are very democratic, some are less, and some are practically not -- that's how it was setup in 1787-1789, and all of that has remained essentially unchanged since then. None of this is new.
In the U.S. executive orders simply don't and can't have the force of law without the support of statutory law, not relative to civilians[0]. If you want a law, it needs to be passed as a statute by the appropriate legislature and must become law via all the usual mechanisms.
It's not that hard to pass emergency laws with sunsets in the very near future. So even if a given State's legislature is skeptical of covid-19's severity, they might nonetheless be amenable to a brief grant of emergency powers and see what happens.
Governors or the President acting alone to impose emergency statute-like law? That's not well received in the U.S., whether by people or courts, and there are very strong precedents in this regard[0].
That has nothing to do with corruption or taxes, and everything to do with long-established, well-thought-out, constitutional law. Yes, we're talking about constitutional law based on past skepticism of government, but that does not imply current skepticism (though it's true there's plenty of it). Also, the U.S. Constitution's requirement that State governments be (small-r) republican almost certainly extends the constraints on the President's EO power to the States' Governors. (Though, admittedly, the Supreme Court has ruled the Republican Government Guarantee clause non-justiciable, that was during the 19th century in a case that was clearly for Congress to decide, and the Court erred in saying that the clause was simply non-justiciable as opposed to certain cases not being justiciable. In a case about the validity and enforcability of gubernatorial EOs, the Court might well rule that the clause does mean that Governors cannot impose emergency rules without statutory support. Certainly that seems like a reasonable interpretation.)
> ... the people will never respect those in charge. ...
This was a decision by a court, not a question of whether the people support their governments. This state high court decision tells you practically nothing about how the people of Wisconsin feel about the measures that the Court struck down.
[0] E.g., the Truman era steel cases: https://en.wikipedia.org/wiki/Youngstown_Sheet_%26_Tube_Co._... https://www.casebriefs.com/blog/law/constitutional-law/const...