Despite no decision yet, Wis. Supreme Court moving through Safer at Home case faster than most

Published: May. 12, 2020 at 5:39 PM CDT
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It has been a week since the Wisconsin Supreme Court

in the case about the state's Safer at Home order extension. It will determine whether the Department of Health Services secretary-designee violated a law by the way she issued the extension order, and even if she did not violate that law, did DHS go beyond her authority with the order.

People, businesses, and municipalities around the state are monitoring the court's actions in the case of the


Rick Ensenberg, the founder, president, and general counsel of the Wisconsin Institute for Law and Liberty said he has heard a lot of people asking why the court is dragging its feet on this case, but he said, in fact, "the court moved very, very fast."

"We went from the filing of the case to oral argument in a little bit less than two weeks. That's usually a process that takes months," he stated.

From oral arguments to a decision, he said also often takes several months.'

"Justices don't just decide cases, they have to give their reason and they have to give their reasons in a careful way that would allow them to feel comfortable having the principals that they announce in this case applied in future cases," he explained.

Still, he said the justices understand the urgency and importance of the current situation causing the case to be filed, and he expects a decision soon too.

He said from his observation of the hearing, the justices seem to be falling into three or four camps of thinking.

"I don't think the court is of one mind on this. I think there are some justices who are very concerned about the constitutional implications about having so much power concentrated in one set of hands," he said. "I think there are other justices who are concerned about the need to proceed in some way that has broader public and legislative input, and then there are a couple of justices who I think were more supportive of the way in which the administration proceeded here."

Ensenberg along with other attorneys from WILL

on behalf of businesses in the state. Their argument largely follows that of the legislature, though they raised the question of the constitutionality of the law DHS says it followed when issuing the order. The legislature did not question the constitutionality of the law. The brief concluded with:

"Our Constitution does not permit the Legislature to empower an executive branch agency to do whatever it chooses for as long as it wants. The Legislature asks this Court to conclude that it did not. But if this Court concludes the Legislature in fact did so, reading Wis. Stat. §§252.02(3), (4) and (6) to authorize the Stay at Home order and the Badger Bounce Back order would be an unconstitutional delegation.

While justices like Rebecca Bradley asked questions and made comments following along WILL's brief and questioning the constitutionality of the law, Ensenberg said there are other justices who traditionally "are far more reluctant to find that a law is unconstitutional and sometimes what they will do is if they feel that serious constitutional questions are raised, they will try to interpret the law narrowly to avoid that problem."

He believes the likely majority, in this case, will ultimately be a combination of that mindset and those that raised the constitutionality questions, "who would then ultimately issue a ruling that would then say that it is necessary for the secretary to proceed by rulemaking and then provide by some order that that be permitted." So in short, rule largely in favor of the legislature.

Donald Downs, a professor of political science, law and journalism at the UW-Madison Law School who has supported republican candidates in the past, had a different take on the hearing.

How the decision comes down he said, "depends on whether the Supreme Court buys the 'rule' versus 'order' distinction the Republican legislature makes in its legal argument."

"I am not sure what to make of this distinction, but it does seem to me, on the one hand, that restricting such executive action to single discrete entities could undermine the purpose of the power the legislature previously delegated to the executive branch," he said referencing how the attorney representing the legislature differentiated between a rule and an order. "What if you have a city-wide riot? May a governor only order a curfew for specific individuals? On the other hand, I doubt the legislature had a crisis like COVID-19 in mind when it passed this law, as the orders pertaining to this virus are incredibly broad and impactful."

"The COVID case raises many issues and conflicts we have not had to deal with before, and it can open the door to previously unanticipated executive power that needs to be checked in the right way," he explained. "Closure orders can last much longer and have more sweeping effects than the types of orders most politicians expected to encounter when they passed the presently challenged law."

He said other states with similar laws relating to broad emergency orders are set up with more balance between the executive and legislative branches.

"So, I understand where the Wisconsin legislature is coming from here, but that point is distinct from what the present law allows," he urged. "Reform of the present law could be called for if the governor goes too far, but that is a different issue from whether the present law bestows broad executive order power in the first place. The Wisconsin Supreme Court’s fury, in this case, is simply to rule on the existing law, not to propose a better law itself."

When it comes to policy, he said, "some check on executive power is usually wise, but how it is done matters. Legislatures are messy creatures and can take forever to agree on things, especially in these partisan times. Sometimes executive action needs to be decisive and quick."

He continued, "but executives need to be reasonable, especially when their orders have powerful economic effects, as in the present situation. The dilemma we face is properly drawing the right balance between physical health and economic health that also has implications for emotional well being. Both sides need to be aware of both sides of this balance."

As for the politics on the situation, he said, "what is happening in Wisconsin is sadly the next chapter in the partisan wars that have divided the state for so long now. Each party seems ideologically committed to pushing one side of the balance, which is most unfortunate for the making of good policy decisions."

You can watch the full hearing for the case


Correction: The secondary analysis was accidentally cited towards a different professor at UW-Madison. It has since been corrected.