The Wisconsin Supreme Court’s Decision Is Brilliant by Robert E. Wright for American Institute Economic Research
Wisconsin’s Supreme Court decided by a 4-3 vote on Wednesday May 13, 2020 to strike down the state’s “Safer at Home” order, its COVID-19 economic lockdown in other words. It did so completely, immediately, and unequivocally. You can read the decision and all the concurrences and dissents here.
Many moving pieces regarding constitutional issues like separation of powers and delegation of legislative powers to officers of the executive branch suffuse the decision. The concurring justices, however, cut through all of that and kept their eyes on the key Constitutional issues, many of which have been discussed by AIER here and here.
Below are key excerpts from the decision. “Palm” refers not to a part of a hand but to the surname of the Wisconsin official whose actions the court declared illegal. Although the decision directly frees only Wisconsin, the principles are broadly applicable to the national government and all US states. Yes, even California.
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While many states have already loosened their lockdowns enough to avoid a similar judicial smackdown, it is important to declare unconstitutional all measures that crossed the line from legitimate public health order (which again, may include quarantine [the sick], cordon sanitaire [infected districts], or protective sequestration [uninfected districts] depending on circumstances) into tyrannical power grab so, like the unconstitutional internment of Americans during World War II, it never happens again.
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We do not conclude that Palm was without any power to act in the face of this pandemic. However, Palm must follow the lawthat 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 authorityof Wis. Stat. 252.02upon which Palm claims to rely.
