Ok, they rewrote the law. The law [1] says "The department may promulgate and enforce rules or issue orders" but the court just said that they cannot issue orders, they can only promulgate rules.

[1] https://docs.legis.wisconsin.gov/statutes/statutes/252/02

The Court did not rewrite or invalidate 252.02. The Court held that the order in this case was a "rule" which means that "the rulemaking procedures of 227.24 were required to be followed". There's nothing about that statement that precludes an order like Emergency Order 28 from coming into force provided that its promulgation follows those rulemaking procedures. There is no rewrite. 252.02 does not exist in a vacuum -- the Court simply recognizes that other parts of Wisconsin statutory code also apply.

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.

> The Court held that the order in this case was a "rule"

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 said that this, specifically, is a rule, because it introduces new criminal penalties for violating it. There is an emergency rulemaking power available in Wisconsin, but these rules were not submitted in compliance with the statues which authorize them.

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..."

Are you saying I incorrectly quoted the decision? Did you read the decision?? It says the order is a rule, not that they can only use rules. It described the rationale for why it has to be considered a rule and not an order given the context. It's all quite reasonable.

The decision invents a new law that says that DHS cannot issue an order that applies to the whole state, if it applies to the whole state it has to be a rule. Even though 252.02(04) says "Any rule or order may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance."

No, this decision does not invent new law (though courts do in fact make law, and it is seen as appropriate for them to do so, both under common law and since Marbury, so inventing new law, had they done so, wouldn't necessarily be innovating). The decision specifically cites the parts of Wisconsin code that apply to rulemaking and why Emergency Order 28 is a rule and not an order. Simply quoting from one part of the Wisconsin code ignoring the other parts that apparently apply (certainly, according to the Wisc. S.C.), is not enough to win an argument.

They found a tortured justification for the result they wanted.

I don't think it's tortured. I think it's a reasonable reading of Wisconsin statutes. Maybe you're torturing your reading of the decision. Or maybe I'm a shill. Any readers that stumble onto this sub-thread will just have to figure it out for themselves, and I suggest they read the opinion because it speaks for itself.

They should also read Judge Dallet's dissent which makes the same points I've been making.

Admittedly I've not read it -- I assume it's reasonable, as I find the majority opinion to be. That's the thing with these court decisions: often you can justify either outcome in reasonable ways. There's no need to vilify anyone here -- it's truly distasteful what's been on display regarding this decision.