In a fascinating, bizarre, only-in-America moment, a partisan majority of the Wisconsin Supreme Court has struck down the stay-at-home order issued by the Wisconsin Department of Health Services. There is no appeal to the U.S. Supreme Court from the state court’s 4-3 decision, because it’s based entirely on Wisconsin law. Although it probably won’t be replicated in other states, the decision tells you a lot about the state of judicial politics in the U.S. today — and how those politics interact with the developing partisan politics of the coronavirus pandemic.
The majority opinion is lawyerly — not in the admiring sense of the word favored only by lawyers, but in the pejorative sense of the term favored by ordinary human beings.
To simplify only slightly, the Wisconsin DHS issued its directive to stay at home in the form of what it called an “emergency order.” The state court held that it wasn’t actually an “order” under Wisconsin law, but a “rule.” According to the court, what made the emergency order into a rule was that it applied to the entire state.
Orders can be issued on an emergency basis by the Wisconsin DHS. Rules, however, need to go through a somewhat lengthy administrative process of information gathering and public discussion before they can be enacted. Needless to say, the emergency order didn’t go through that process, which would have taken time.
The upshot is that, according to the court, DHS lacked the authority to issue the emergency order — and the order therefore lacked the force of law. Its criminal sanctions — a nominal fine or up to 30 days in jail for breaking it — were held to be invalid and the order was rendered unenforceable.
If this sounds crazy to you, that’s because it should. No state could be so foolish as to deny to its public health officials the capacity to take emergency measures necessary to save lives in the middle of a pandemic.
And indeed, Wisconsin’s laws aren’t foolish. Wisconsin law says, among other things, that DHS “may authorize and implement all emergency measures necessary to control communicable diseases.” It says that DHS “may promulgate and enforce rules or issue orders … for the control and suppression of communicable diseases.” This statutory language makes it crystal clear that DHS can issue emergency orders as well as rules crafted under the required, lengthy administrative process.
For good measure, Wisconsin law also says that “any rule or order may be made applicable to the whole or any specified part of the state.” That phrase pretty much rules out the majority’s position that an order magically turns into a rule when it applies statewide.
The weakness of the majority’s main legal argument suggests that its concerns were not really about the technicalities of the statute. Sure enough, several of the justices in the majority wrote separate concurrences invoking all sorts of grand constitutional principles in support of the idea that DHS shouldn’t be able to shut down the state, even in a pandemic.
Some of these arguments reflected recent trends in conservative constitutional thinking — such as the nondelegation doctrine, the idea that a legislature can’t delegate authority wholesale to an executive. Justice Neil Gorsuch has been pushing this idea in the federal constitutional context, with the greater goal of dismantling the administrative state.
Other arguments sounded the bell of libertarian panic. One concurrence quoted not only the famous Supreme Court precedent that says habeas corpus can’t be suspended unless there’s a war going on, but also Tom Paine’s revolutionary pamphlet, “Common Sense.”
The implicit comparison of the Wisconsin Department of Health Services to King George III tells you most of what you need to know about the paranoia that is building on the right around stay-at-home orders. Seen in this light, the Wisconsin Supreme Court decision is the legal manifestation of the anti-lockdown protests in several states, encouraged by President Donald Trump.
To be sure, I favor robust judicial review of government orders that restrict liberty. I can even muster sympathy for the libertarian impulse to resist government edicts.
But the correct constitutional framework for evaluating government orders isn’t the made-up one that the Wisconsin court used. It’s the familiar principle that restrictions on liberty must serve a compelling government interest and must be narrowly tailored to achieving that interest.
Fighting an ongoing pandemic is about as compelling as government interests get.
And at present, stay-at-home orders are still narrowly tailored to reducing COVID-19 transmission.
The Wisconsin court lacked the courage to address this issue head-on. Its majority surely understood that, if they said that the order wasn’t narrowly tailored, they wouldn’t be taken seriously. So they used legalistic tricks instead.
The Wisconsin DHS should start promulgating a “rule” under its procedures now. Maybe it’ll be ready to go into effect just in time for the second wave.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”