The Wisconsin Supreme Court in a 4-3 decision on Wednesday, May 13 struck down Democrat Gov. Tony Evers administration’s safer-at-home order, ruling that the mandate exceeded the administration’s authority. The opinion said that the extension of Gov. Evers’ stay-at-home order was “unlawful, invalid and unenforceable.”

According to the Associated Press, Gov. Evers issued a stay-at-home order in March which was originally set to expire on April 24. However, Department of Health and Human Services Secretary (HHS) Andrea Palm, an Evers appointee, extended the order to May 26.

In its opinion, the Wisconsin Supreme Court did not address Gov. Evers’ power to issue stay-at-home orders in an emergency. However, the court did say that the stay-at-home extension issued by Secretary Palm could not stand based on an examination of the relevant Wisconsin law.

The court struck down the stay-at-home order effective immediately. The Republican legislature had asked the court to allow the order to stay in place until May 20 to provide it time to negotiate with Gov. Evers on a replacement. However, the court denied the request saying it the legislatures had already had weeks to come up with a compromise. USA Today reported that Wisconsinites flocked to bars which reopened just hours after the court delivered its decision.

In the majority opinion, Chief Justice Roggensack wrote, “In Wisconsin, as in the rest of America, the Constitution is our king – not the governor, not the legislature, not the judiciary and not a cabinet secretary. We can never ‘allow fundamental freedoms to be sacrificed in the name of real or perceived exigency.’ Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”

In an concurring opinion, Justice Kelly also expressed concerns over the constitutional liberties that the stay-at-home order may infringe upon.

“Under any rational reading, the order contains or assumes policy decisions that are staggering both in their reach and in their effect on what we once thought of as inherent rights – rights that, according to our constitution, the government exists to secure,” Justice Kelly wrote.

Justice Kelly said that the Secretary’s order assumes certain powers that she may not actually have. He wrote that the extension of the order assumes Secretary Palm, “has the authority to confine people to their homes, close private businesses, forbid private gatherings, ban intra-state travel and dictate personal behavior. The Order also depends on a public policy decision that the Secretary has the authority, all by herself, to criminalize whatever conduct she believes is anathema to controlling communicable diseases.”

Writing in dissent, liberal Justice Dallet wrote that the decision would, “undoubtedly go down as one of the most blatant examples of judicial activism in the court’s history.”

The Wisconsin Supreme Court currently has 5 conservative justices including Chief Justice Roggensack and Justices Zeigler, R. Bradley, Kelly and Hagedorn. Justice Hagedorn was the lone conservative to side with the court’s liberals, Justices A. Bradley and Dallet.

The case is Wisconsin Legislature v. Wisconsin Department of Health Services.


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